MediaSlap blog

Can Music Copyright Exist on the Web?
Part II – Then & Now / What’s the Difference?

Before we go further in this series, we must understand that Copyright Law is constantly evolving in a strange, congressional law and litigation-based balancing act, either advancing or subtracting from a creator’s exclusive right to control an original artistic or scientific (some add technological) work. Four decades ago, most music copyright legal issues were confined to three areas: Counterfeit Duplication, Unauthorized Usage and Plagiarism. With counterfeiting, duplicators would crank out thousands of illegal copies of records and tapes and sell them to black market distributors. Most of this product found its way to countries with little or no copyright enforcement as well as some rural areas of the U.S. Federal penalties were quite strict and prosecuted under racketeering (RICO Act), whereby civil and criminal punishment came in a packaged bundle: up to 20 years in jail, $25,000 fines and seizing of all physical assets attributed to the criminal activity. After frequent FBI crackdowns in the late 70’s, most piracy relocated to Southeast Asia and China where it transitioned to compact discs in the 80’s. It was not significantly curtailed until the 1990’s when the U.S. made “protection of intellectual rights” a global trade issue.

Unauthorized Usage, for the sake of this article, is referred to as the unlicensed utilization of a copyright – Think of it as a violation of the “all rights reserved” portion of copyright. The creator of the song, or “songwriter”, has a “reserved right” to control the placement or New Use of the song in, for instance, a movie or advertising. Plagiarism refers to the intentional or negligent representation of the words, ideas or thoughts of others’ works as one’s own. In these type of violations, some were handled with “cease & desist” orders, others sought monetary damages (civil actions) and more severe prosecutions even included property seizure. What can’t be emphasized enough is that in every aspect of copyright infringement, some part or right of that intellectual property creator is stolen – And theft is a criminal act!

These were fairly straight-forward crime/punishment standards (or “bright-line” rules as statutory law would dictate). Now let’s interject two pieces of legislation and a lot of “gray area” (reference “balance” and “evolving” in the first sentence). The “Fair Use Doctrine”, derived from the Copyright Act of 1976, and the AHRA (Audio Home Recording Act of 1992), which amended the Copyright Act of 1976. Both introduced a substantial variance to copyright “exclusivity” and, perhaps for the first time, a great deal of confusion and misinterpretation in the public sector.

The Fair Use Doctrine sought to balance the “public interest” with the author’s “impetus to create”. New permissions were “granted” regarding a copyright’s use in academia or research, satire/parody, news reporting and reviews/critiques (granted is used in quotes as permissions are born mostly from court decisions). This new, “balance scale” introduced 4 criteria to consider for “fair use”, but no single factor was to produce a determination:

• Purpose & character of use – noncommercial or educational purposes
• Nature of copyrighted work – informational or creative, published or unpublished
• Amount of work used in relation to the work as a whole – no formula
• The effect of the use upon potential market or value of the work – extent of harm

The “scale” set forth a fluid legislation, with no exact rules, that sought expanded public “use” of an author’s work, a subtractive standard to the owner’s “exclusive right”. And in classic-American legislative framework, ultimately “standards” are decided in the courts through litigation. In fairness, this format insures the law is never static and is ever-evolving (and something to consider if you feel judicial appointments do not affect you), but it’s a far cry from the clear standards of the past.

Outside of “limited” use in education and journalism, one of the more striking precedents from the Fair Use Doctrine resulted in popular music parodies. In Campbell v. Acuff-Rose Music, the U.S. Supreme Court found that in all 4 balance criteria, 2 Live Crew’s production of Roy Orbison’s Pretty Woman did not violate fair use provisions. As a result, we have protection for the works of Weird Al Yankovic in today’s popular music (even though he claims he always asks both artist & publisher for permission).

But IMHO, the dominant feature of the Fair Use Doctrine is rarely discussed – its profound penetration into the public’s everyday language and, unfortunately, everyday misinterpretation! This new idea of “fair use” for copyrighted material set the stage for many of the music issues we face today. And for the first time, a generation raised from the ‘60’s “revolution”, felt compelled to use technology to exceed the de facto music standard of the time, the vinyl record. Certainly making a tape copy of a purchased record might seem fair, but that was never the doctrine’s intention. Even Marybeth Peters, the Register of Copyrights, admitted in a recent Nate Anderson article, “fair use itself is often ambiguous unless defined by a judge.” http://arstechnica.com/tech-policy/news/2007/05/fair-use.ars
An entertaining list of misinterpretations can be found at the following web locations: http://en.wikipedia.org/wiki/Fair_use#Common_misunderstandings
http://www.copycense.com/2006/03/demystifying_fa.html

With the Audio Home Recording Act of 1992 (AHRA), which amended the Copyright Act of 1976, Congress attempts to resolve “home taping” and pre-internet digital recording issues. The act allowed the much-delayed arrival of Digital Audio Tape (DAT), Philip’s Digital Compact Cassette (DCC) & SONY’s minidisc into the US by defining the relationship and royalty rates between blank media/device manufacturers and the content industry. In regard to “home taping”, the act states in section 1008, “No action may be brought… alleging infringement of copyright… based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.” What congress intended was to legitimize the copying of a purchased record or cd for the sake of portability in the same sense that consumers could copy broadcast TV on a VCR for time-shifting. But consumers read “noncommercial” as not for sale to the public, though Congress clearly states later in the amendment “not for direct or indirect commercial advantage.” By no means did this amendment legitimize the copying of content just because you did it “at home” or didn’t “sell copies to the public.”

These two pieces of legislation set an air of public confusion regarding copyright law in the years prior to the dot-com explosion. It was the dawning of a new era whereby consumers, for the first time, could shift content from one media to another, almost at whim. By allowing the concepts of “fair use” & “home taping” to misconstrue in the public consciousness without education about their real-world implications, these laws allowed misinformed music seekers to form a culture of disdain for the rights of content creators and set a troubled foreshadowing to the present-day copyright ruckus which we examine in Part 3 of this series.

*also see Can Music Copyright Exist on the Web? – part one