Jump to navigation A Plea for Piracy
Bob Wills was a true giant among American musicians. His Texas Playboys band not only defined Western swing but exposed rural audiences to a vast range of musical styles by amalgamating superb renditions of hot jazz, slow blues, hillbilly fiddling, pop crooning, folk songs, big-band arrangements, mariachi, polkas—indeed, just about everything short of grand opera. In the 1930s and 1940s, Wills' eclectic concerts, broadcasts, and recordings exemplified the essence of America's diverse culture. His collected work is a national treasure. Modern enthusiasts can fully appreciate the magnitude of Wills' achievement only by hearing a wide array of his hundreds of records. Yet the only way to do that today is to seek out imports from England (a 109-cut four-CD set on the Proper label) or Germany (all 300 sides from his prime years on 11 Bear Family CDs). Here, in Wills' own country, his work is relegated to skimpy compilations that barely suggest the depth of his art. Classical buffs fare no better when they try to deepen their historical insight. In the 1940s the brash energy and excitement of American orchestras—including Fritz Reiner and the Pittsburgh Symphony Orchestra, Dmitri Mitropoulos and the Minneapolis Symphony Orchestra, and Artur Rodzinski and the Cleveland Orchestra—offset the refinement of European ensembles and substantially advanced the evolution of modern style. Yet you'd never know it from current domestic CDs. All were Columbia artists, but Sony, the inheritor of that extensive catalog, has reissued only a handful of that wealth of recordings and apparently plans no further releases. Dozens, though, are available on the French Lys label. Why should Americans have to turn to Europe to recoup our own cultural heritage? As Wills might have said, “Somethin' ain't right.” That “somethin'” is copyright law. Copyright was designed to balance the rights of artists to control their own works against society's ability to enjoy and build upon artistic creations. But over the years, Congress and the courts have utterly failed to protect society’s interests, and the balance has shifted too far in favor of copyright owners. The result of this shift, aggravated by the failure of copyright owners to keep so many 20th-century works in print, is to deprive students, artists, and other Americans of the cultural legacy of their own forebears.
Life Everlasting
Our Constitution specifically grants Congress the power
“to promote the Progress of Science and useful Arts . . . by
securing for limited times to authors and inventors the
exclusive rights to their respective writings and discoveries.”
At first, Congress wisely set the term of copyright at
14 years plus one similar extension, which was long
enough for the typical artist and his family to benefit from
his work. After that, material entered the public domain,
where all others were free to use it. This was a sensible
accommodation between rewarding innovation and
encouraging growth.
The copyright term first was doubled in 1909 and has
been pushed upward several times since. Most recently, the
Sonny Bono Copyright Term Extension Act of 1998 added
yet another 20 years. With each extension, protection
was preserved for all works that were about to enter the
public domain.
Today the “limited time” of most copyrights extends for
the life of the artist plus 70 years. And does anyone seriously
doubt how Congress, dazzled by showbiz glitter and afloat in
donations from the entertainment industry, will act when the
next deadline approaches? It’s safe to predict that nothing
will ever again enter the public domain in America.
The Lost Works
The effectively perpetual nature of copyright, combined
with the unavailability of so much 20th century material,
has exacted a heavy societal toll. These difficulties were
aired in Eldred v. Ashcroft (2003), although the Supreme
Court rejected the plaintiff’s constitutional challenges to
the Sonny Bono Act.
In dissent, Justice Stephen Breyer detailed the acute social
and artistic costs of withholding works from the public.
Amicus briefs presented voluminous evidence of archivists
unable to compile comprehensive databases, scholars lacking
essential research tools, restorers unable to rescue precious
but deteriorating artifacts neglected by the owners' heirs, and
artists inhibited by concern over inadvertent infringement of
earlier work.
Needless to say, record labels, movie studios, and other
major players insist they can afford to invest in new projects
only if they are assured very long-term returns. (It’s highly
ironic that the Walt Disney Co., one of the most outspoken
advocates of copyright extension, made its fortune on publicdomain
fairy tales.)
Fortunately, in much of the rest of the world, copyright
for sound recordings is far more reasonable: 50 years, and
that’s it. Where America won't provide Wills or Reiner fans
with access to the artists’ lifework, Europe and Asia have
been able and willing to oblige. (So have American retailers,
who readily stock unlicensed imports alongside legitimate
products, often at a far lower price.)
The only losers are American copyright holders, who forfeit
the royalties they could be collecting.
Follow the Money
Enabling artists and producers to derive an economic
benefit from their creativity and investment is a fair price
to support the creation of art. As the Supreme Court has
recognized, however, the primary purpose of copyright is
not to boost private profit but to increase public knowledge
and resources, both by encouraging creativity and by
assuring that the results can be widely shared after a reasonable
period.
Fair-use concepts under copyright law could have been
used to assuage this problem of competing interests.
Unfortunately, they have not.
The fair-use doctrine, as developed by the courts, was
intended to temper the strength of copyright protection with
a measure of practicality and reason by allowing some otherwise
unauthorized uses that are deemed justified by social
need. In codifying fair use in 1994, Congress acknowledged
the propagation of our artistic heritage as a legitimate purpose
for fair use.
But Congress limited the statutory scope of fair-use
protection to narrow realms of education, archiving,
and preservation. Other activities remain subject to the
vagaries of ad hoc fair-use analyses and potentially massive
liability.
In judging whether a particular activity qualifies as fair
use, courts weigh four primary factors. The most decisive is
the effect upon the work’s market value. Courts tend to
assume a lucrative potential for reissued or derivative work
over the long course of copyright protection. On occasion
this is justified, as rediscovery of a neglected artist's work
can spawn formidable commercial demand. Consider the
massive royalties earned by bluesman Robert Johnson’s
work decades after he died in obscurity (although his
belated success ultimately set off an absurd legal battle
between an alleged illegitimate son and the estate of one
of his 11 half-sisters).
The vast majority of musicians, however, must rake in as
much income from copyright royalties and licensing
arrangements as quickly as possible after their work’s first
publication. Indeed, studies document that the bulk of the
value of most copyrights is generated within the early years
of protection. (And even artists whom fame eludes and who
get duped into signing away their rights are driven mainly
by a burning creative impulse, not by the prospect of
posthumous royalties.)
After those early years, the copyright owners’ incentive to
keep works available drops dramatically, and many works
effectively disappear from the marketplace.
It’s Only Fair
Here’s my proposal: If a copyright owner won't continue
to issue a work in a readily available format at a fair market
price, then at some point the public's entitlement
should take over and the law should no longer bar others
from stepping in.
In prior times, publication in small quantities was expensive
and impractical. If there was little demand for a work,
it was unreasonable to expect the copyright owner to incur
the expense of keeping it available. Nowadays, though, any
work can be digitally preserved and distributed with the
push of a few buttons. If an American seeks a copy of a
protected domestic work, the copyright owner has a moral
obligation either to republish or not to interfere with republication
by others.
For an initial period of, say, 10 years, a copyright owner's
power would remain absolute, ranging from the right to
suppress a work to the right to demand excessive licensing
fees. But after that, if a copyrighted work has not been
readily available at a reasonable price during the prior five
years, the rules would change to permit publication of the
work by others.
Anyone else seeking to republish the work would first
have to conduct a reasonable search to determine the copyright
owners and serve upon them a notice of intention to
publish. The owners could respond by making the work reasonably
available at a sensible price within one year of the
notice. But if the owners declined to do so or if the search
failed, then the proposed publication could proceed, immune
from liability for infringement. Appropriate standards for
searches, requests, availability, and pricing would be set by
statute or the U.S. Copyright Office.
In fairness to “orphan” works with hard-to-find owners,
and to previously unfound owners seeking to benefit from
a belated or renewed popularity that arises from others'
exploitation of the work, lapsed rights could later be
reasserted through supplemental registration and notice to
all known unauthorized distributors. But no publication
occurring up to two years after that reassertion would be
actionable. Thus, owners' rights, even if they were allowed
to fall dormant, would be protected, while those who were
responsible for creating value where none had existed
before would have an incentive to act and an opportunity
to recoup their investment. All would benefit, including,
most important, the public, who now suffer at the whim of
neglectful or avaricious private interests and the copyright
law that shelters them.
One Way or Another
The decisive argument for such a change is perhaps as
much practical as it is legal. Digital technology has altered
the basic assumptions of copyright law.
Once, the dissemination of works could be restricted by
limiting the tangible copies of paper, magnetic media, or
celluloid. Unauthorized reproductions were noticeably
substandard. But today, digital copies are exact duplicates
of the originals, and their distribution is invisible, cheap,
and instantaneous.
Given a viable choice, consumers will prefer an authorized
copy. But if none is available, then the law can be very
easily sidestepped. After all, pixels are immune to shipping
manifestos and customs inspections. If a book, CD, or DVD
can't be obtained conveniently and economically, then the
only practical constraint on illicit replication and delivery is
the consumer's own conscience, which (we already know) is
easily stifled by an unfulfilled desire.
Legally or otherwise, domestically or from overseas,
flawless copies can and will be obtained. And the modern
European pirates who retrieve and share our cultural gold—
gold that the owners had forsaken—are not scoundrels who
defy the law but heroes who advance its ultimate aim.
By all means, let those who control copyrights benefit
fairly from their ownership should they so choose. But
burying valuable works thwarts the very “Progress” that the
Constitution seeks to promote. If copyright owners decline
to exercise their rights constructively, then others must be free to do so. Whether through intent or indifference, copyright owners must not deprive Americans of our precious
artistic heritage.
Peter Gutmann is a partner in the D.C. office of Womble Carlyle Sandridge & Rice. He writes about music at www.classicalnotes.net. He can be contacted at pgutmann@wcsr.com.
