Rights and Wrongs

[Originally published in the Vanuatu Independent newspaper.]

Following a recent workshop on copyright, the plight of the local reggae group Naio was used to demonstrate how copyright legislation could improve the lot of struggling Vanuatu artists.

Unauthorised copying, they claimed, had so reduced income from CD sales that the band simply couldn’t make a living on recording alone.

While the principle of respecting creative works is one I support wholeheartedly, I need to make this clear: Recent copyright reform has done little to change the plight of performers elsewhere in the world.

There are numerous interwoven ideas wrapped up inside what people call ‘Intellectual Property’. The World Intellectual Property Organization, a UN body, clumps many of them them together under the term Copyright. In essence, it says that Copyright – the right to exercise control over one’s creation – can be exerted over any creative work, its production or its broadcast.

The idea here is quite simple: Artists deserve to be rewarded for their work. Because they share their work with the world, and because we all benefit when they do so, they should be allowed a limited monopoly on the right to reproduce the work in question.

Well, that seems perfectly reasonable.

Of course, we do need to carve out a few exceptions. We need the idea of Fair Use. People need to be able to talk about the artists’ work; so common everyday uses such as humming a tune or copying out a few key sentences of a book are considered okay. How about using creative material to teach? That seems safe enough. We should also be allowed to re-sell, trade or give away books, CDs, DVDs and magazines, right? We can make copies of them to safeguard our purchase, can’t we?

But what about a sing-along at a bar? That popularises the song, so that should be fine, right? How about if we pop the CD into the bar’s sound system, so that everyone can listen and dance to it? Or how about if I keep one copy of a song at home and put another onto an MP3 player to listen to in the car? It’s already been paid for, right? So that shouldn’t be a problem. What if I copy just a little bit of it, and use it as a ringtone in my phone? Can I give that ringtone to my friends?

What if I use a well-known hook as a witty commentary in a song of my own?

What if I’m in a band and I like a song so much I want to play it myself? Do I have to ask permission to play it?

The rights enjoyed by the authors of creative works vary widely from one country to another. In some countries most of what I’ve described above is can be done without worrying.

In some other countries, you start paying as soon as you buy a blank CD to make a backup. The music you hear in restaurants and elevators and when you’re holding the phone? Paid for.

Copyright is a great idea. In practice, however, it gets messy fast.

It doesn’t have to be that way. It’s possible to boil down copyright to a few basic elements, and many of them are easily enforced, even without special legislation.

If I record a song, for example, I can license a distributor to press a number of copies and sell them in stores around the country. In order to protect our collective investment, I give the distributor the exclusive right to sell my disks for a period of time. That’s a pretty straightforward grant of copyright that I could write up in a simply-worded contract.

But that’s not where copyright is going. Increasingly, copyright favours not the original artist, but the distributor.

Fair use provisions such as the right to make a few copies or to share with my friends actually popularise the artist’s creation. Especially in the early days of an artist’s career, exposure is everything. Some people contend that the best way to become popular quickly is to give stuff away and rely on people to spread the word to their friends.

But that particular kind of free publicity reduces profits for the distributor, at least notionally. Every copy made for free seems like a lost sale to the distributor.

Most of the movement on copyright law is being driven by distributors, not artists. They feel threatened by the ease with which music and video can be copied on the Internet, and they’re doing what they can to turn back the tide.

Naio’s work – and that of countless other talented musicians and performers – needs protecting. Of that there is no doubt. We can protect those rights today: Penalise anyone who sells their CDs without permission. Two policemen on weekly patrol could reduce the black market nearly to zero.

What WIPO is proposing, however, is much broader than that.

Bands like Naio and others in Vanuatu could benefit hugely from the free exposure that the Internet provides. (One can only hope that their exclusive sponsorship agreement with TVL includes some kind of ring-tone/website/online distribution provision.) But measures currently being touted internationally would make things harder, not easier for small acts like them.

There is increasing movement internationally toward what distributors have termed a ‘graduated response’ to file copying. If you’re caught copying online once, you get a warning; two times and there’s a penalty; three times and you’re out.

That’s a bit like revoking someone driver’s license, not for dangerous driving, but for running on knock-off tires.

It may be inevitable that Vanuatu harmonises its so-called Intellectual Property laws with the rest of the world. But let’s not pretend: We’re doing it for Disney’s sake, not Naio’s. By forcing all music and video through official distribution channels, bands like Naio might find recognition harder than ever to come by.