It’s nearly 2010… for a lot of you, the only thing on your mind would be top 10 albums of the year (I’ve already chosen a definite 3), but there are a lot of people very excited about the stroke of midnight come the 31st of December, it’s because a lot of works will fall into the public domain.
A very quick introduction for some of you, when works (literature, music etc) fall into the public domain, it means it’s term of copyright has ended for that territory, meaning no-one specifically owns that copyright and you, as a member of the public, may do what you wish with it, including monetise from it. Not many people know, that right now, you can sell Elvis as much as you like… with limitations of course. What are the limitations? Well, first of all, the works have to be in the public domain for the territory you are exploiting in, so even though you can sell some Elvis works in the UK, you can’t in the US, because our term of copyright is different to theirs. In the UK, the term of copyright for the sound recording is 50 years after the year of it’s original release, in the US, it’s 95. The copyright in the sound recording is only one hurdle, the copyright in the composition is a whole new term of copyright (95 after the death of the composer in the UK), so what does that mean? Well, you are free to sell works in the Public domain, it just means that the PRSforMusic will want a cut for the publishers.
Naturally, in these turbulent times, a lot of companies have begun to release works now in the public domain, because we’re entering the age where sales from the music in the late 50’s happen to be songs that are still selling well. Naturally, the original labels are trying to get copyright term extended throughout Europe in order to keep monetising for many more years.
So what’s the problem?
Perhaps you see it as a good thing that the major record labels have less control over these works. Perhaps you are excited at the fact you can legitimately promote/release orphaned works (something Google is working on with books). I’ve felt the urge even myself. Listening to an old John Peel show, having loved a track he played by Al Ferrier, although it seems trying to stream anymore of his material is tough, because it just isn’t really out there. What a shame to have such good music not available to anyone at any time. If I come across one of his cds anywhere (mostly only available on import), I may in fact put it out there. But there is a downside…
Don’t forget, whatever you’re feelings are towards the majors / public domain, the most important thing is the consumer. There are knock on effects for them as they use sites such as iTunes, We7 & Spotify…
Type in Frank Sinatra into any of these sites and you’ll instantly turn dizzy. All yielding results into the hundreds. Remember not all his most famous hits are in the public domain yet, so there is a lot of repetition from people releasing the same tracks with different and usually substandard artwork. This isn’t good for the consumer, I’m a consumer, I want to listen to Frank but I don’t want to have to sift through 60 albums before I find my favourite of his. There is of course the search option, but the ability to browse is important to a consumer. Choice is good, but too much is damaging.
Below are screenshots which will open in a new window so you can benefit from the full size.
- iTunes search for “Elvis Presley”
- Spotifys “What’s new?” section
- A search for “Frank Sinatra” on We7
So what’s the answer? Well iTunes, potentially breaking the law, have removed any Elvis albums from it’s catalogue from companies other than Sony / BMG, although I think 1 or 2 have slipped the net. Yes, it’s like there was no public domain at all. Staggeringly Sony / BMG have around 200 different Elvis titles with re-releases, compilations etc. With iTunes, when it comes to the big artists, the majors have the weight to get the competition removed. Is this fair? Most likely no, but it’s hard to come up with an alternative where there isn’t too many titles for a consumer to browse through. We7, although label data is omitted when you look at a release (can we fix that please?) also suffers from this problem as encountered with a search for “Frank Sinatra”. Whenever you look at Spotify in the “What’s New” section, you’re pretty much guaranteed to be looking at some works in the Public Domain.
In a market so saturated, the return for companies can be minimal, although there are companies making 100,000’s from doing do, but doing it well. These works aren’t orphaned, it’s not vital we get the same collection of old Elvis tracks with mediocre artwork again. What’s certain is, come the 1st of January 2010, it’ll only get worse. This post is not condoning copyright extension, neither is it condoning letting the majors carry on exploiting these works… It’s a message to iTunes, We7 & Spotify to think about how they’re going to handle works from the public domain moving forward in a playing field where the public have just as much right to release these works as the majors do and where the consumer experience in searching and browsing is priority.
Would love to hear any ideas in the comment section below.
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I wholeheartedly agree that the consumer experience created by the proliferation of compilations and re-releases is poor, but I think that trying to argue against increased choice on these grounds is like suggesting that we turn off the web because it allows people to publish low quality content that distracts from traditional premium content.
The conclusion that we should be drawing is that there’s a need for some real intelligence to be applied to the tools so that consumers can take advantage of this choice effectively. One of the big challenges facing the music industry as it comes to terms with the digital era is that of cleaning up a huge library of legacy metadata. At the moment we’re still at the stage where dealing with this is the domain of low-quality closed data sets and expensive commercial products rather than open standards and public databases. I hope that sooner rather than later the realisation will dawn that opening this stuff up isn’t a threat, it’s a catalyst to huge growth as people link together more and more information to create a richer and more engaging consumer experience.
If that sort of high quality data becomes widely available, everyone can have a version of the “clean” iTunes experience. Services can reliably collapse all of those duplicates into an “other versions” area. The important thing is that the availability of those other versions will determine the price point (i.e. much lower). I have no doubt that the labels will apply pressure to stop this happening by asking duplicates to be removed altogether, but as you point out, it’s not clear that that’s legal, and at the end of the day there’s nothing they can do about services that don’t have a contractual relationship with them who offer these cheaper versions. That’s the wonderfully extreme free market environment of the internet at work. If that sounds like a label’s nightmare, well, maybe it is, on current thinking. But even if the big labels can’t make as much money as they’d like from sales of this content, they still have a strong claim to be the ones associated with it: it will be their original version listed, not the knock-offs. And that means that they also have a claim on the attention and engagement entailed when a huge audience gets easier access to a growing catalogue of classic music at very cheap prices. Cross-sell to new related content; get people involved in artist programmes, create brand loyalty and excitement around all of this great content rather than trying to stifle it.
Is that just the wishy-washy thinking that has generated so much criticism of the ad-funded sector? Perhaps. But I can’t help but be struck by things like this video: http://www.youtube.com/watch?v=5SaFTm2bcac . A huge swathe of modern electronic music might never have existed if someone had decided to try and be strict about the usage of one sample all those years ago. Although it relates to a different issue than the expiration of copyright, the principle remains the same: sometimes relaxing formal control gives rise to a level of creative excitement whose benefits (even financially) far outweigh the perceived losses of that relaxation.
Hi Lucian, many thanks for your comment. I think on many things, we are on the same page however the tone of my blog post may not have suggested that to you. I think many of our copyright and sampling laws should be more liberal, on previous posts I have promoted RIP: A Remix manifesto which is a great documentary all about copyright and the problems artists face in todays culture. If you haven’t seen it yet, you’ll love it btw.
To take you up on your 1st paragraph…
“I think that trying to argue against increased choice on these grounds is like suggesting that we turn off the web because it allows people to publish low quality content that distracts from traditional premium content.”
It’s a very good point, but I would counter it with that’s why we have Google etc, for, they deliver to us, the most relevant results based on multitudes of criteria that I’m certain I don’t need to explain to you. So when I search Google, I’m confident that even pretty much by ranking, I am going to find the most relevant sites for me. However, that isn’t the case with We7 and I’m not singling you out either, Spotify and iTunes also have the same problem. Consumers would expect that when they search sites/programs, that they are delivered the most relevant choices for them. So sometimes this is done by popularity. To talk about We7 specifically, when you search for something, it may be likely that you come across many variations of the same release, Not knowing how your system displays search results, I can’t comment whether they’re listed by popularity, however, aesthetics is very important for consumers so when they look at the search results like my screen shot above, with a lot of duplicate artwork, they’re going to assume they’re the same thing, slightly varied. When I do a hover over, I can see that they are different volumes and do slightly differ in regards to track listings. When I do that search, I feel overwhelmed which isn’t user experience you want on your website.
With regards to a price war that public domain brings, I can only say I’m all for it. The majors by now have no doubt recouped from Elvis etc many times over. Are they even paying royalties on Public Domain works, we can’t be sure and here’s another big question, where does the PPL stand in this, what happens to performance royalties for public domain works i.e. radio play from these hits? We should be value adding as much as we can, delivering more for less and we can do so because technology will allow us to.
You’ve raised some good points Lucian, albeit some of them what I believe to be utopian day dreams (which I with you on). But again we’re talking industry back end politics, something an end user has no knowledge or care of. They’re not going to browse We7 and if they have too much choice put it down to the laws of copyright, they’re going to feel the resentment towards We7, which is a problem you have to take into account. You’ve hinted at an ‘other versions’ area above, would it not make sense for We7 to display the top 10 search results based on a criteria of popularity with the option to browse further more if they so wish? One other suggestion would be to enforce stricter artwork rules. Get the message across to these companies that being lazy and using the same artwork is damaging to them and your site. It must be clear if these releases are of different volumes it’s clear from the thumbnail, who would engage in the Frank Sinatra roulette trying to find volume 9 in a 15 volume series, all with the same artwork. Thanks again for your comment.
Hi Anthony,
Basically: I completely agree!
You’re right, it *is* possible for us to do something about this ourselves and we plan to do so. It’s just that it’s a lot harder to do it reliably without support from high quality metadata. When is a song “the same as” another song? Which version should you pick as your primary version? If you pick the wrong one, you might find you get a takedown notice a month later and then you have to work out what to do with all those users who’ve bookmarked it and put it in their playlists etc. Again, none of these are insoluble problems, but they would be made much easier to solve if the handling of equivalence had better support right from the beginning of the metadata chain. But that’s probably just a pipe-dream, so in the meantime we’ll be guessing based on track lengths, release dates, where we got the songs from, magic reference numbers that may or may not be unique etc. etc….
Lucian
Again, many thanks for your response Lucian. You have a tough task ahead of you all. Hope to see you about at some point. Anthony