Copyright und Das Music Industry in the New Age

With special thanks to the inspirational track ‘Witch-Hunt’ by The Mob

I have always loved the track ‘witch-hunt’ by The Mob. Surprisingly it is not the original (and particularly rare) version off the old 7” single, rather the re-recorded version off the wonderful ‘Let the Tribe Increase’ album which is my personal favourite. The lyrics, the sentiment, the sound, the arrangement are for some reason little short of perfect. The timelessness of the cautionary tale that is Witch-Hunt applies as much to the European witch-trials as it does their US counterparts depicted in Arthur Miller’s Crucible ~ images of Joe McCarthy (Amerikkka of the 1950’s) or Matthew Hopkins (England of mid 1600’s) both skip fleetingly through my imagination, and remind us all of times most significant for their climates of fear and superstition.

On a recent visit to Yeovil the Swapmeet Kid and I even went to the trouble of searching out Yeovil bus-station which is pictured on the Mob’s first single ‘Youth’ – a strange punk rock pilgrimage one might say. On leaving the lush rolling plains of the England’s beautiful South-West and being transported along many hundreds of miles of linear concrete congested by endless miles of traffic towards the grim North West and our homesteads in the People’s Republic of Blackpool, I let my mind wander. The mental backdrop and sound-scape to this lyrical journey was provided by the recurrent sound of Witch- Hunt wandering through my consciousness, and somehow parallels twixt Hopkins, McCarthy and that strange piece of plastic from which I had consumed the haunting sounds of ‘Witch-Hunt’ seemed to intersect.

On arriving home I raced into town centre Blackpool to perform a gig with Litterbug at Insomnia, however the messages from the Mob track remained firmly fixed in my cranium. In order to exorcise them I thought I must externalise them by committing to paper what the song was pressing me to do.

“Snuffing out progress where seeds are sown, 
killing off anything that’s not quite known, 
sitting around in our nice safe home waiting for the witch-hunt” 
(The Mob – Witchhunt 1978)

are lyrics that can be easily applied to Matthew Hopkins search for heretics in 16th century England, US Mcarthyism in the 1950’s and the politics of asylum raging throughout the world today. Conveniently for our purposes these acerbic words can just as easily be applied to ‘our’ beloved music industry, highlighting in particular an inherent tension that exists within music between its historical function as a means of social enjoyment and its more recent adaptation as an object to be controlled and managed.

First up lets just think outside the confines of our 21st century consumerist society. Realise on the one hand that the world (and the music industry) as it exists, represents just one specific modality of how it ‘can’ be and not how it ‘ought’ to be, and on the other hand try and think backwards to a time before the music industry (as we now know and understand it) ever existed.

Thinking outwards and differently from the place where we exist in history has historically been the very stuff from which poets and philosophers have crafted their vision of life, meaning and existence. Thinking ‘otherwise’ is not however a place restricted to any of us, it is a place where we can all go despite the interventionism of ‘straight-line thinking’ (The Subhumans – We Are All Controlled) and a physical and mental landscape scarred and confined by a million miles of concrete and high walls. So perceive the likes of Kant, Wordsworth and Byron as articulators of ‘other ways things could be’ rather than geniuses who occupy this place as their special restricted preserve.

In terms of music I have always had an uneasy feeling about its appropriation for uses other than straightforward social enjoyment. Rather like concepts and ideas such as ‘love’ which thankfully as yet can not be reduced to individual measurements or units, music some how feels like something that does not readily conform to being commodified, packaged and produced in production lines rather like Adam Smith’s pins or Henry Ford’s automobiles.

So let’s reverse technologically and imagine a time way before Elvis Presley and years before the advent of the ‘Hit Parade’ (btw you should try and listen to the track of the same name by Gainesville’s Gunmoll if you haven’t already) when music was not recorded. A time before the technology of recording even existed, and as such music could only be communicated by being played live. You can travel back as far as Ancient Greece or even earlier to Ancient Persia or Sumeria (the oldest evidence of written music and instruments hails from Cuneiform tablets) where music was a live social relationship between player and listener.

You only need travel back a few centuries rather than millennia and the situation had broadly remained the same. In Renaissance Italy and later into the Classical era of Bach, Mozart and Beethoven and still music is something that in order to be communicated needs to be played live. There is probably still even into the nineteenth century no real conception or imagining that music would ever be recorded or anything but ‘live’, let alone distributed on some form of physical media such as a CD, record or tape for private enjoyment. The point I am underlining here is that the commodification of music as we now understand it is a very, very recent phenomenon in the history of music. Something that we have physical and written evidence has been around for thousands of years, and probably long before, has in the last few seconds of its lifespan been technologised onto physical objects such as vinyl records, cassette tapes and CD’s.

Second point here is that music is probably the ‘strangest’ and most unusual of all ‘things’ to be commodified. Can you think of anything more quirky and unsuitable in terms of becoming a commodity ? Music is no more than a series of sounds and vibrations. Of course it can be constituted by harmonies, rhythm, intervals, dissonance and just about every other ‘hard to define’ aspect of what music is, it is all reducible to nothing more than sound and vibration. How something that cannot be seen or touched can be turned into a product is quite a leap.

It is on the one hand quite ingenious that in a very short period of time within the history of music that recording technology was developed that allowed something to be captured that had never been captured before. Sound that had existed for millennia was suddenly in our grasp. Viewed another way it feels rather like a bird being pulled out of the sky and put into a cage. Somehow despite all the benefits that now can be imagined by association with personal enjoyment, there is just something (maybe in terms of a desire for freedom) that just feels wrong : it seems that rather than something being gained, something has been lost.

The earliest related signs of the commodification of things related to the transmission of music can be seen with the development to the print industry – so blame Caxton in the late 1400’s ! Markets for ‘musical scores’ (printed sheet music) and printed poems (there was an informal hit parade of poets based on the sales of printed poetry that developed in the seventeenth century) developed with the advent of printing. Although an early pre-cursor of the ‘music industry’ of today, the advent of printing really only allowed a wider of distribution of instruction (via sheet music) of how certain pieces of music were constructed. In reality this actually probably served to create an increase in the number of recitals and public performances of music.

Is there anything else as abstract as music that has been commodified ? ….. and indeed commodified to such an extent that we think it perfectly natural to have records, CD’s and taped recordings ? There is something far more ethereal in the nature and essence of music, and in its capture, reproduction and commodification than could (for instance) be attributed to visual art and its capture and reproduction by printing and later by photography. Music therefore inhabits an in-between space. It is something abstract and virtual that has been reduced to something physical. Its commodification has dictated that it has undergone a metamorphoses.

So something that existed ‘out there’ was captured, replicated and distributed in a controlled fashion for personal / public usage and enjoyment. Something that avoided definition became defined as commodity. With the advent of digitisation it appears that music is now ironically being offered some kind of technological escape route. Music as sound and vibration was somehow always uneasy and incomplete as vinyl record or compact disc, and digitisation is partly returning to its abstract ethereal position of sound in space. As music is now bypassing CD, tape and vinyl and slipping back through the gaps and away from the control of record companies, they are desperately trying to retain control by re-defining the battlefield between social enjoyment and private control in terms of copyright.

If a slight rupture in the smooth running of the industry was created by the rash of independently produced records given form by the advent of punk rock in the mid/late 1970’s, then the impact of the advent of digitisation is far greater. The punk dialectic exposed the dishonesty of the industry, and encouraged smaller and more dedicated labels far closer to the reality of the bands and the music than the high rise edifices of the music industry, to burst through and cause alarm within the corridors of power which created a belief in the need to reassess.

Digitisation in its own way is possibly more significant than the punk challenge of late 70’s as it is redefining how things are done. The late 70’s challenge of the independents was a case of out-doing the majors on their own terms, by doing things better but within a similar framework. It was not long until these labels were scuppered by either being bought out or co-opted by the majors re-engineering their game plan by sponsoring their own ‘independent’ labels.

Digitisation is also highly significant for impacting upon other areas of the music industry such as marketing and distribution. The internet offers bands, labels, artists and music consumers an instant and accessible means of communication through digitised download, peer to peer sharing networks, fan websites etc. In the post-manufacturing era the example of the massive success of the Arctic Monkeys shows how the easy availability and sharing of music via these methods can impact upon music sales. The Arctic Monkeys album became the fastest selling debut album of all time when it was released in January 2006.

So coupling the 70’s punk attitude to outwit and bypass the music industry with the modern-day technological means to do so in the form of the internet, that element of subversion and possibility that often seemingly flows through new music is in certain ways personified by the experience of the Arctic Monkeys.

It should be acknowledged that digitisation also offers new and more profitable opportunities for capital by providing the means for companies to offer ring-tones for mobile phones or downloads for the burgeoning array of new digitised players such as I-Pods, so please don’t think I am saying that new technology marks the dawn of a bright new era for underground music, but it does offer something which can be used to our mutual benefit.

The second line of the fine ‘Witch-Hunt’ by Yeovil’s finest “destroying anything that doesn’t quite fit” leads me into a brief gaze at how this sits with an industry that is more about homogenisation and the stifling of creativity and strangulation of critical faculties, rather than being a greenhouse for creativity.

First up however let’s not be fooled by the following line “idle plans for the idle rich” in terms of its relation to the music industry. The music industry is not idle, in fact it is on a constant state of red alert, and its army of minions and copyright specialists are locked and loaded and ready to enjoin battle at the drop of his master’s cheque.

What we are now seeing however if one cares to pick through the various judgements, lawsuits and strong messages sent out by this rotting cadaver of late capitalism, is an industry which is now revealing chinks in its armoured game-plan by starting to drop it sickly fib-fib-fib messages of “oh we are just protecting artists’ interests” to “well, let’s be honest we exist to make money and whether we pickpocket you without you realising it or simply choose to rape you in broad daylight – we don’t care” the erstwhile smiling assassin seems to be finally dropping its smile.

By way of introduction lets re-state the facts that four ‘majors’ currently dominate the global market for recorded music: Universal Music Group ; Sony BMG ; Warner Music Group ; and EMI. Most accounts put their collective share of the global market for recorded music at between 75% and 80%. As time progresses and industry concentration increases, the additional number of back catalogues falling into their grasp and under their stealthy control looks set only to increase.

The historical process of how this has come to be is a story of competing business interests stretching back across two centuries of brinkmanship on the terrains of bookmaking, publishing and copyright. An interesting story in itself that may be, let’s remind ourselves as stated earlier that the creation of music and the human enjoyment thereof, has been around a long time before these companies were created and voluntarily decided to get involved and mediate our relationship with music. Or re-phrased another and more eloquent way “our social enjoyment and social production of music, predates the commodification strategies of the global music industry” (May).

How music and the ‘music industry’ got where and how it is, is more a reflection of how a system of economic relations underpinning the economy music developed to exploit music – so let’s instantly start by dashing any vague notions that there is an independent romantic story of how music changed and developed over the centuries. It is very much a case of the tail (the industry) wagging the dog (music), rather than the mistaken belief that music is simply reflecting back on itself through the benign indifference of record sales. As economic relations enter stage right, innocence exits stage left. Once centre stage industry exists to ensure that innocence is not allowed to exist.

What has happened to music is pretty much illustrative of what happens to many commodities, in effect reflecting the evolution of our entire society .. “deritualise a social form, … specialise its practise, sell it as a spectacle, generalise its consumption, then see to it that it is stockpiled until it loses its meaning.” (Attali). The meaninglessness of consumer-speak whereby we now communicate through commodities rather than conversation, and in which we allow products to speak on our behalf, is something I should also do a piece on (ah takes time to scribble this onto a post-it note).

Meaninglessness in terms of human worth or value is however often diametrically opposed to other forms of ‘usefulness’. Socially useless but economically useful is a mantra which applies to much within meaningless society. In Robert Frank and Philip Cook’s depiction of the ‘winner-take-all-society’ the music industry today is used as one of their key examples of the ability of the top product and/or company to reap increased rewards (Frank and Cook).

In these heady days change is often popularised as the ‘only constant’ and indeed technology and battles for control within the music industry have shifted grounds. The monopoly of the control of the means of production applies less and less to the un-natural resource we refer to as ‘music’, and as Simon Frith rightly puts it “for the music industry the age of manufacture is now over. Companies are no longer organised around making things but depend on the creation of rights” (Frith).

This retreat from manufacturing is brought into sharp focus with the following current example from my own very limited experience. With the assistance of the UK Arts Council I was recently involved with a local project manufactured 5,000 CD’s in full colour printed wallets for less than 50p per unit. If this run had been 50,000 or 500,000 then absolutely exponential economies of scale kick in and the 50p per unit price is now a matter of only a few coppers. Immediately eyebrows should begin to be raised as to why this incestuous network of the ‘big 4’-‘their distributors’-‘their retail outlets and high street chains’ see fit to charge £15 for a CD ! Qui Bono ? Who benefits ? the music lover – I think not.

So if production is now within the reach of almost anyone then the two other members of the holy musical trinity “distribution and reproduction” come centre stage. Whilst the activities themselves are not rocket science then the ability to become engaged needs to be restricted – and the key factor over which the establishment and maintenance of control over these processes is now fought, is in the realm of intellectual property rights (IPRs).

The logic behind this manoeuvre is for business to create the conditions in which intellectual property (IP) behaves in a similar way to how material goods behave in a market. Copyright rather than supply and demand is therefore the mechanism that underpins market prices. The endgame of copyright is to render music formally scarce (a restricted notion of supply) by the legalised limitations of use owners can mandate by utilising copyrights.

Thankfully the nature of music listening still dictates an authentic experience so that while the format, make or style of production are not of any real importance and can now be easily outsourced, the sound/artist needs to be the right one. So whereas cheap fancy goods can be easily replicated and passed off as genuine, as yet we have not fallen to the depths of inanity whereby we have Snow Patrol or Jamiroquai doing a stars on 45 reworking Crass’s greatest hits. That would just not do !

This new legalistic IPR relationship helps transition from Reaganesque magic market-place of happy-clapping consumers and honest sellers, to the open-prison drug model of suppliers and users. The former was always illusory, the latter is probably is coming to be more like reality. Consequently the industry suits behind the high street music suppliers (we always need somebody to blame . . well don’t we ?) are viewed more and more suspiciously as dealers in questionable junk and they are making fewer and fewer attempts to shake off this nasty image.

There seemingly appears to be an increasingly healthy aversion towards attempts by the music industry to interfere in people’s enjoyment of music, and what many perceive as the curtailment of harmless practices such as home taping of which the industry has always been aware – and tolerated unless it turned into a cottage industry.

More and more the industry and its lobbyists such as the RIAA (USA), BPI (GB) and IPFI are sending strong messages by going after sharing over campus networks and prosecuting individuals. For instance in September 2003, the Recording Industry Association of America settled its case against a twelve year-old female in Manhattan - Recovering $2000 from a child living in subsidised housing did not provoke positive headlines on the front pages of either the New York Post or New York Daily News. (May)

Evidence of the ‘higher pitch and broader scale’ (hello my dear Weakerthans ) of this onslaught is most clear from the bigger legal battles currently taking place over the matter of digital rights management (DRM) software. This is the latest incarnation of that battle for control, which is finally taking on a more brutally honest approach whereby it proudly flies the flag for commerce rather than consumer.

The subtle difference between this DRM incarnation and the series of historic late twentieth century legal battles which took place over issues of ‘timeshifting’ with VCR’s and ‘fair use’ home taping, is that these battles are now being waged under the banner of legal protection of purely commercial interests. The “artists’ interests” which most people always knew was only a show-game and a disguise for commercial interests seems to be disappearing from the rhetoric of battle.

Rather like the civil liberties pendulum swinging more adversely in times of war, copyrights litigation has temporarily swung one way and then the other. As the stakes in the game are now higher than ever (remember Frank and Cook’s depiction of the ‘winner-take-all-society’ mentioned earlier) the tug of war fought on the fields of Sony v Warners in 1984 (when home VCR taping was upheld), and then Napster v A&M et al, is now shifting swiftly in the direction of favouring the copyright lobby.

This shift is evidenced by the US Digital Millennium Copyright Act (DMCA) 1998, and in the EC Directive on Copyright 2001 which deem that it is now illegal not only to use, or develop processes which might circumnavigate DRM software protection, but also to ‘traffic’ in these processes (to publicise them on the Internet or elsewhere) (Bygrave).

This is rather akin to the Bush doctrine of ‘pre-emption’. Attack first in order to stamp out any consideration of anything, before anything has even been considered ! A rather banal circular argument which tends to choke on its own victim. Hey but it justified the war in Iraq to some degree – and may indeed supporting the liberalising mission into Iranian or North Korean territory (watch this space).

These DMCA and EC Directives throw up a number of legal issues, not least that each makes it illegal to distribute software or other tools for circumnavigation, even if intended to allow actions and uses covered by ‘fair use’ exceptions within the legislation. The main trend this denotes however is that the control of copyrighted material, which was to some extent lost after Sony vs. Universal Studios case, has been potentially regained. (May)

‘Industry language’ for the people currently talks of the ‘darknet’ of illegal content transfers and interactions, enables the music industry (via its corporate content providers) to present itself as the unfortunate and innocent victim of organised crime - when in fact many see the industry as the real destroyer.

Interestingly however decoding this ‘industry language’ reveals that the legal protection of DRM makes explicit that the rights being protected are neither performers’ or authors’ rights but rather the rights of ‘owners’. So therefore while copyright masquerades by retaining an appeal to narratives of creativity, the legal regime around DRM is explicitly a response to commercial interests. (May).

Wealth addiction is arguably the most potent of all addiction problems dogging the international stage. As this fiercely reawakened greed of ‘gimme, gimme, gimme’ (Black Flag) courses through the black veins of the music industry and increasingly any practice considered slightly illegitimate is designated as ‘fair game’ for its hired wolves then the pendulum will swing further and further towards control away from creativity and imagination. Remember it’s a war out there and we wouldn’t want anything to restrict or interfere with the industry supply lines now – would we?

Andy Higgins – tMx 25 – 06/06
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