Monday 5 December 2011

Music and IP conference report: 2

First to speak after the coffee break in today's Music and IP conference was Rebecca Dimaridis (Jeffrey Green Russell), on the topic "Infringement -- has the Same Old Tune Changed?". This was an analysis of the question whether an old song, "Kookaburra sits in the old gum tree", was infringed by Men at Work's song "Down Under" (see earlier blog posts here and here).  Rebecca treated the conference participants to sound clips of the two works before feeding the notes into the court's legal reasoning. The court's finding that there had been an objective similarity between them was strengthened by the frank admission of musician Colin Hay that there was indeed a causal connection between the two works.

Was the incorporation of two bars of "Kookaburra" into "Down Under" a cultural tribute to Australia, along with the inclusion in the video clip of references to Foster's, Vegemite, a kangaroo, a koala, a beach and a gum tree, and therefore sparing it from being a copyright infringement? Sadly for the defendant band, this didn't help. A copying was no less a copying where it was intended to create a cultural allusion.

Last up before lunch break was 1709 Blogger Ben Challis, on "Business Models and the Music Industry: Successes and Failures". Reminding participants that technology changes rapidly while human nature remains much the same, Ben affirmed that adapting one's business model in light of technological change is not just necessary but can be beneficial too.  Legal action has been tried and legislation is in place, but still the unauthorised copying, downloading and file-sharing continues. Sales of recorded music are plummeting, even though there is more music available than ever before.  There have been some successes, such as the closure down of Limeware and Grokster and successful actions against The Pirate Bay, but these are merely replaced by others.

What then can content-owning industries do? Digital rights management (DRM) has had some successes, for example Sky. The Sony Rootkit infected people's computers, which was a bit of a disaster. Young computer users have the energy and the skill to get round DSM with not too much effort. Bars to access are also accused of infringing human rights. How then do we monetise our creativity? The Americans seem to be able to do it -- and they criticise our failure to do so.

If you can't make money from music, said Ben, try making money from people who make money from music; try making your products and services attractive.  Apple's growth was through its being associated with music, without having to own it. YouTube, Facebook, Spotify all use music lawfully, through licences -- though music  which is being insufficiently monetised. Ben then mentioned his disenchantment with safe harbours and with arguments that conduits need protecting because they can't control traffic -- since they can whenever they want to. ISPs make a lot of money and should be better made to pay for the music they carry in order to do so.

So what does work? Selling music through the web is possibly a dying business. History tells us that things do change. In a global market businesses need global policies, subject to competition law.  Levies are a possibility, but not very generous. Micropayments are better, since young internet users are more comfortable with them. Sponsorship, advertising, more effective use of collecting societies, turning artistes into brands -- these are all possibilities. In this context, Ben cited some leading Court of Justice trade mark rulings that establish the strength of trade mark protection for branded entities. This works for big, well established bands -- but entry-level bands just starting out have no such opportunities.

We need to tidy up the scene for collecting societies, since they are so important for the future. There are far too many of them and it's difficult to deal with them when making cross-border arrangements. Effective licensing schemes are an absolute must.

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