We propose to deal mainly with to copyright
of audio albeit legislation would have to encompass a wider
area and our thinking is moulded by the wider consideration
of allowing patenting of human genes, and indeed of the 1975
patent granted by the United States Patent Office
to the Texas firm RiceTec for various kinds
of Basmati rice (later somewhat restricted in its scope) and
other cases that in our view made it quite reasonable for
the rest of the world to refuse to enforce US patents until
a suitable international convention was agreed to set up a
court of appeal to which all such cases could be referred
and whose ruling would take place over national law in allowing
patents or copyright.
So against that background what is or should the purpose of
copyright (the same in this case applies to patents): It is
in theory to benefit society overall by setting a proper balance
that between encouraging innovation and creation by creating
a state-enforced monopoly right and thus providing fair reward
to those who create and who are unlikely in most cases to
put in the effort for the sake of it and the not allowing
such a monopoly to stifle others.
It was fairly well put in France in a report to the French
Chamber of Deputies in the debates before the adoption of
the French Patent Law of 1844: "Every useful discovery
is, in to Kant's words 'the presentation of a service rendered
to Society'. It is, therefore, just that he who has rendered
this service should be compensated by Society that received
it. This is an equitable result, a veritable contract or exchange
that operates between the authors of a new discovery and Society.
The former supply the noble products of their intelligence
and Society grants to them in return the advantages of an
exclusive exploitation of their discovery for a limited period".
Or as the US Constitution has it: "Congress shall have
power ... to promote the progress of science and useful arts
by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries."
In our view there have been enough cases to indicate that
there is a problem and that there needs to be a sensible consideration
of this balance, which we think, is ill served by the current
all-or-nothing patent approach. Our view is that things would
be improved were there a number of classes of copyright/patent.
The issues for
radio and audio.
Figures we noted on RAIN - which has
done a good job of looking at the costs of the proposals for
webcasters and also posted figures on what terrestrial radio
might have to pay - show that the scale of the payments would
be very significant: According to Dave Rahn of SBR Creative
the current rates would cost of the order of USD 2.6 billion
this year rising to USD 4.2 billion in 2009, a total he says
could well approach a quarter of terrestrial music radio stations'
Obviously the National Association of Broadcasters
(NAB) will fight ferociously to retain its exemption but we
can see little logic in this argument in the world as it is
now - we regard the "promotional" argument that
led to the exemption as one which terrestrial broadcasters
and others can all argue to varying degrees.
Thus it seems to us that if we are to apply a sense of fairness
to the rules terrestrial radio should not be exempt but equally
that to give all the power to recording companies who in our
view have shown themselves to be conservative (small "c"
in the sense of not open to new ideas), small and mean-minded
to various degrees, and as incapable of making an argument
honestly and fairly as is the NAB, would be very significantly
to the detriment of the wider society.
In considering the best reaction to
the claims of the a little history is in order in our view.
For most of the 19th century US authors - we are talking before
the recording industry existed - were protected by copyright
in the United States but foreign authors were not. This led
to the latter campaigning to be included, some US authors
supporting them and a general debate about copyright, the
virtues of which we not generally accepted at the time.
The reasons behind this are instructive! For the foreign authors,
including Charles Dickens who was vilified by some
in the US for his claims, there was the obvious motive of
money. Interestingly the same motive applied to US authors
because the royalty payments meant that American publishers
were able to sell books by foreign authors more cheaply, thus
biting into sales by American authors. Significantly there
was also an issue of translations with Harriet Beecher Stowe,
who was preparing her own German version of Uncle Tom's Cabin
finding an American court ruling that an unauthorized translation
did not breach copyright as it was in effect a separate work
The situation changed after the passage of the "International
Copyright Act of 1891",which went into effect on July
that year with the first foreign work - the play "Saints
and Sinners" by British author Henry Arthur Jones - being
registered two days later.
To us the logic of this situation could be to go for a solution
that takes a leaf from the situation before passage of the
In effect what we are suggesting is
a system of a number of copyright/patent classes with differing
barriers to gaining a patent with a category having to be
selected at the outset as to which kind of copyright cum patent
is required with NO amendment being subsequently allowed.
In all cases where it is practicable for a work to be stored
electronically, we are proposing the equivalent of a Library
of Congress/British Library system where all works have to
be filed electronically to gain a patent and where, for the
benefit of society in general, such works would then be available
for a small administrative fee at a certain stage or after
expiry of the copyright/patent.
To those who argue in terms of anything other than the practicability
of state regulation in these matters, we would respond by
pointing out that the whole system rests on state regulation
and that human societies existed for many centuries with neither
patents nor copyright and that great creative and technological
advances were made in those times.
The first is what we would call for argument a Class One
patent/copyright that would retain as many free market rights
as possible including the right to bar others from use and
set price (exceptions might well be set, as now, in terms
of areas such as differing rights in wartime or for national
security reasons). The state would not get involved in any
The downside of this class would be that the barrier to entry
would be set higher in terms of demonstrating the unique nature
of the patent/copyright (Texas Rice wouldn't have got near
the gates for this), a requirement would exist where applicable
for support, manufacture, or availability for sale with the
rights expiring a year after these had been discontinued,
and a shorter life-we would suggest the original US period
- 14 years as in the 1790 Act that was amended three years
later (and which did not cover non-citizens: Foreign residents
were added in 1800 for foreign residents subject to certain
conditions, somewhat extended in 1832, and then a number of
times again before the International Copyright Act of 1891"
allowed foreigners protection.
Any work designated for this class would become public property
after the relevant 14 years with extension prohibited and
a requirement where applicable ( as in software) to make details
available two years in advance of expiry (Allowing in the
case of software for others to take over development and support
when the copyright expired).
For a Class Two copyright/patent, we would apply a
longer period - the 28 years that existed in US copyright
before 1976 would seem reasonable for corporations -longer
for individuals as below - but without the possibility of
extension. In this case Second Class rights would exist with
the state where necessary being able to regulate prices, limit
the exclusion of development by others (DJs, for example could
produce Mix records but would have to pay the relevant state-designated
fees) but the same extinguishment of rights would apply but
only two years after discontinuation of manufacture, support,
or availability for sale.
For this class we would suggest the current Copyright
Royalty Board fees could apply and we would commence
distinguishing between corporate rights and those of the individual.
For an individual we would allow the term of the author's
life plus 50 years as in the US 1976 act (before the 1988
Sonny Bono Copyright Term Extension Act, which we would rescind
since in our view it benefits few individuals and stifles
more than it aids society in general).
To benefit individuals, all works where appropriate (as for
writings, artwork, audio and video creations) would go onto
a government controlled database (albeit operation of this
and collection of fees etc could well be delegated to others)
with a set fee (We would suggest the order of USD 1 for print
and audio, USD 2 for video where file sizes are much larger)
of which at least two-thirds would be distributed to the individuals
(or their heirs) involved as is done now by various copyright
For Class Three copyright/patent , we would propose
a system where conditions were essentially as Class 2 but
fees would be a fifth with a concomitant requirement to promote,
on a web site if not on air, the material for sale through
a link or direct sale system - thus providing an incentive
for others to use work of new artist/authors who thereby get
the benefit of wider exposure and more sales. This class,
we suggest would be of significant benefit to smaller independent
recording companies and individuals on the early
Finally, we would suggest a fourth class into which would
go all works where no specific copyright classification had
been requested and there would thus have been no requirement
to lodge the work electronically.
Those in this class would be allowed to lodge the work electronically
and apply for a Class 3 copyright for a period of up to five
years after its creation (copyright/patent life would be reduced
accordingly) but with no retroactive rights nor rights to
control adaptation of the work albeit they would be allowed
to require accreditation. Thus, for example, were a prominent
artist, to decide a work was worthy of a recording the recording
then made, whatever copyright it held, would have to bear
appropriate credits and, where a work had before the recording
was made and distributed acquired a class three copyright
have suitable direction to a point where the original could
be purchased (making the original part of the new recording
would be allowed subject to individual negotiation to count
as fulfilling this obligation).
The above, we would suggest, is, like anything imperfect,
but could form the basis for a more satisfactory system by
keeping material available to the public indefinitely (no
more out of print or not being produced any more problems
for later researchers since once not being supported or sold
the material goes into the system), producing an incentive
to use new artists and continuing payments to them, and allowing
other artists to build on works but requiring accreditation.