1709 Blog: for all the copyright community

Tuesday, 29 May 2012

Is Apple deleting the history of music? Moral rights on iTunes

Following the much-deserved success of her first guest post on moral rights last week, which attracted a fascinating bunch of comments, the 1709 Blog is delighted to bring readers the second of Mira T. Sundara Rajan's contributions to this weblog. This week's post addresses a question that is bound to raise a few eyebrows -- and hackles: Mira asks
Is Apple deleting the history of music? Moral Rights on iTunes

After downloading, music will never be the same – not the recorded music industry, which has been fighting for its life since sharing music on the Internet became common in the late 1990s – and not artists, who have watched their livelihoods evaporate as record sales have dropped. A section dedicated to music downloading in my 2011 book, Moral Rights, included an overview of the fascinating strategies adopted by music companies to try to undercut the “illegal” downloading of music online. Among these, Apple’s iTunes has led the way. This leading platform for legal music downloads, revolutionary in its time, adopted a practical strategy that showed just how much Apple had learned from the illegal downloading scene. 
Apple focused on selling music singles as individual tracks, and at prices so insignificant that it was almost like getting music for free. Of course, it is possible to buy entire albums on iTunes – and, on occasion, in more specialized genres like jazz or classical, only albums might be available – but the basic format on which iTunes is built remains the single. Popular music tracks typically sell for around $1.29, while jazz and classical “singles” are usually priced at a mere 99 cents (for more on Apple's pricing scheme click here). And Apple is selling something more than just music. It is selling insurance – a way to be reasonably sure that downloaded music is legally obtained, or at least, to make it credible to argue that it is.

A time may come when downloading will entirely surpass the market for recordings in “hard copy” (see here for an interesting analysis).  The economic consequences of such a shift have been analyzed countless times. But, in an environment that is overwhelmingly online, what will be the fate of moral rights in music?

There has been surprisingly little discussion of moral rights in the online environment. What little has been said emphasizes the practical reality, obvious but immensely significant, that it is very difficult it is to protect moral rights online. Given the freedom to manipulate data, and the fact that many online exchanges of music occur in informal or illegal contexts, maintaining the attribution and integrity of musical works depends almost entirely on the goodwill of the individuals involved. There are some inherent incentives to maintain the source and integrity of data on file-sharing networks (also discussed briefly in my book), and there is some overlap between an interest in data per se and moral rights in music; but this is still a far cry from explicit recognition for music rights.

Will CDs just vaporise?
To date, the tacit consensus seems to be that moral rights are of limited relevance to digital transactions. From the artists’ perspective, however, nothing could be further from the truth. As noted above, the music industry seems to be moving towards an era when revenues from music CDs will largely disappear. Some of those revenues will be replaced by legitimate online sales, but musicians will also have to find other ways of making a living. While the ultimate shape of the music industry to come is still unclear, it is possible to catch certain glimpses of its future face. Live performance may experience a resurgence; self-promotion and the development of a unique musical presence, or “brand,” will be essential; and successful strategies for selling music through venues like iTunes will be crucial. In all of these areas, the value of reputation, name, and a uniquely identifiable product or creation seems to be at least as important as it was in the era of recorded music. Moral rights, and the twin principles of attribution and integrity, in particular, will be more important than ever to the musicians of the future.

But online platforms are not only relevant to the future of music; they play a crucial role in relation to its past. As recordings are essentially transferred from CDs to music services like iTunes, these vast online databases will become increasingly important as repositories for the entire history of recorded music. In relation to the music of the past, the attribution and integrity of musical recordings is involved. This issue should be of concern to anyone and everyone with an interest in music.

A look at iTunes provides a clear illustration of what is at stake. iTunes is already a vast digital library, offering tracks for sale in virtually every genre of music. However, there are obvious problems in relation to both attribution and integrity. For example, a jazz performance usually involves a degree of collaboration between at least three people – a soloist supported by bass and drums. Many of these “side men” are extraordinary musicians in their own right. Charles Mingus was an extraordinary bassist who also played piano, composed, and led a big band. The bassists who played with pianist Bill Evans were in a special class known for their virtuosity – Scott LaFaro, Eddie Gomez, Marc Johnson. A large number of percussionists have attained the status of jazz legends. And yet, a survey of jazz recordings on iTunes suggests that some number of them, quite probably a majority, do not list the names of contributors anywhere on the track.

A similar problem occurs in relation to classical music recordings, but classical music tracks also contain other kinds of mistakes. A fan of the Scriabin sonatas recorded by legendary pianist Vladimir Horowitz might want to download the tracks from his 1989 RCA Victor album, but the listener would be startled to find that one of the feature pieces, the famous first movement of Scriabin’s third piano sonata (“Dramatico”), actually contains another piece. The recording is available for download in its proper form from Apple’s competitor online, Amazon.com.

Where integrity is concerned, the problems are also fundamental. Some artists feel that splitting an album into individual tracks affects the integrity of their music – a case that was made, successfully, by rock group, Pink Floyd, in 2010 (though one wonders how committed the group was to this concept, as they have subsequently struck a deal with EMI Classics that allows the company to continue selling individual tracks online). A work of classical music like Glenn Gould’s recording of the Goldberg Variations by J.S. Bach is available as a series of individual tracks, although Gould, very unusually, re-recorded this work in order to explore the “overarching ... pulse,” in the phrase of journalist Jonathan Cott (Conversations With Glenn Gould (University of Chicago Press, Chicago 1984), that unites all of the variations. It is possible to think of many reasons why it might be interesting and important to be able to download single variations, and the point here is not to argue against making them available. Rather, in cases like this, it may be important to make them available with a specific focus on maintaining the integrity of the work. Something as simple as indicating that the piece is part of a larger work, and showing where the selection fits within the whole, could accomplish this goal.

It is apparent that an awesome responsibility has fallen to Apple and other companies dealing in online music. Not only must they help to promote the artists of the future, but they must also do what is necessary to preserve the legacy of the past. By a happy coincidence, the technology to accomplish these goals is comfortably within reach. ...Reassuringly, tracks from an album entitled “ Legendary Jazz Drummers,” put out by Stardust Records in 2009, receive an unusual treatment on iTunes – the names of bandleader, group, and drummer all scroll across the top of the screen as the track plays. The way of the future?

5 comments:

Paul Edward Geller said...

Jeremy: The printing press allowed for greater accuracy in reproducing texts, in attaching comments to them, say, in footnotes, etc. Sound recording continued this trend, with liner notes, etc. Pace McLuhan, we now return to a media flux akin to oral mythologizing. For example, in addition to what you note here, the Google book project garbled much bibliographic metadata. Your bottom line is encouraging, pointing out that cyber media need not be used negligently in these regards. But the corporate leaders will only discipline their cyber-enterprises if legally pushed to do so. Let's hope that consumers sue the cyber/robo-bards for fraud when they misrepresent what they're selling -- or creators sue them on moral rights when they misattribute, derogatorily present, or distort their works. Otherwise, Googelization will become the cultural equivalent of sausage-making. Cordially, Paul

Howard Knopf said...

Prof. Rajan is to be noted for her continuing attempts to discover moral rights issues where others might not.

It must be noted that iTunes and Amazon are American companies and moral rights cannot be found in the American Copyright Act for performers or anyone else other than visual artists.

At present, there simply are no moral rights in performer’s performances in Canada. If and when Bill C-11 passes, performers will have these rights but only prospectively. Moreover, the right of association or (or attribution as she calls it) will be clearly qualified by the wording “where reasonable in the circumstances”.

This clearly means that there is no need to credit the third desk violists or even the bass clarinetist (which I was) in a symphonic or operatic performance. The side persons in a small ensemble may present a closer case, but there can be no “one size fits all” rule. Besides, moral rights can always be waived and this would be the case in the new law. Canadian law does not require that waivers be in writing and a sufficient waiver may be implied in the circumstances. Arguably, this would be the case for many session musicians or even sidemen who were and are used to being nameless – even on old record jackets or inserts (remember when?) where there was plenty of room to list their names.

I agree that more information is better for cultural and historical purposes and the market will probably fill the void – i.e. www.IMDb.com I believe that there are other databases already existing that provide metadata for many CD era recordings.

As to providing the wrong track, that’s perhaps an isolated programming glitch in her example and someone might want to get their get their 99 cents back. But unless there’s a deliberate attempt to pass a Keith Jarrett improvisation off as Horowitz playing Scriabin (or other such unpleasant surprise), I don’t see any IP problem - much less a moral rights problem.

As for using single tracks from an album rather than the whole album, or even single movements – what else has radio been doing for the last 100 years or so? How does selling a single track at a time harm a performer’s honour or reputation? Again, there’s probably at least an implied waiver here. Recording artists know that this will happen. They can try to work around it – like Gould if they are in his league – or they can live with it. But it’s rarely if ever going to be a moral rights issue.

Anyway, the bottom line is that there are presently no moral rights for performers in Canada or the USA. I can’t speak for elsewhere.

Howard

Anonymous said...

Has anyone ever seen a case go to court that was truly an example of moral rights?

We've all heard the theoretical examples - what if a Jewish composer had their work used in a Nazi rally, etc.

But all the cases that I've seen are all simply back-doors for contractual disputes, and ways to negotiate a better deal.

The Pink Floyd example is typical - they use the 'moral rights' argument, talk about the integrity of the music etc ... but in the end it appears to be just a way to negotiate a better deal for individual tracks.

Mac

john walker said...

It did not go to court but the 'moral rights' of the original architect of the National Gallery of Australia did result in delays and extra costs to the galleries substantial recent rebuilding.


These sort of attempts to use 'moral' rights to create inalienable, inheritable, economic 'royalty' rights are a right Royal project.

Anonymous said...

To shift some of the responsibility from Apple, or any other online music distributor, I note that consumers can demand integrity in the works and purchase whole albums. Artists can refuse to sell their work on a given platform unless full attribution is made. With all due respect to artists, if they offer to sell their work in fragments and/or without full attribution, and consumers are happy to purchase, can Apple really be blamed for being the intermediary?

I suspect that artists such as Pink Floyd might cave because, to the vast majority of music consumers, it's just about the music.

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