The Future of Music Coalition is a group dedicated to education, research, and advocacy for musicians. In an effort to sort through the quagmire of confusion these days over rights, intellectual property and the effects of new media, the group conducts Policy Days, discussions between representatives of many of the major players. The 2009 Policy Day certainly brought together a wealth of ideas and personalities, though no grand conclusions.
Having attended the event in 2007, I was excited to see how the debate had developed. But this was not a day that would focus on great strides and progress. The last two years hadn’t seen much to report, though there was a lot of optimism that the new administration will bring change (a somewhat familiar theme).
So the discussion was more theoretical. When you stand at the beginning of a new era, hoping for change, the question is: what kind of change are we looking for?
Then the problem –- who should determine what changes we need?
It seemed like every discussion, whether it be on a panel about Radio in the 21st Century, Broadband Access, Copyright in the Digital Age, or Fair Trade Music, the lines were being drawn. Each party, whether they represent artists or rights holders or the media, is out to protect their own territory. No one wants to give up any ground, and everyone feels attacked, either by one of the other groups or by the media itself and its capabilities.
Over the course of the day it became apparent that there was no single solution for this problem, but that changes had to be made in order for things to move forward. What those changes are will remain to be seen, as the balance of power shifts and new voices become heard.
Radio in the 21st Century isn’t just what you get on your alarm clock in the morning. It also concerns satellite broadcasting, HD Radio, and the Internet, and the lines being drawn between these divisions cause their own problems. Terrestrial radio’s exemption from paying performance rights is generally challenged by musicians as well as satellite and online broadcasters as an unfair advantage. However, in the panel itself, the discussion centered less about who was paying what and to whom, but the battle over what we, the listeners, are actually hearing.
Peter Gordon, president of the independent label Thirsty Ear, asked the big question -– “If you can go to any city in America and hear the same thing over and over again, is radio really accomplishing anything?” Radio has moved from being a local, small-scale media to being as mass-produced as cable television -– playlists that exist cross-country, syndicated DJs who speak for all time zones.
For Gordon, “radio, unlike webcasting or satellite delivery, lives in a community, and the community is…its cultural ecosystem. Radio presents a wonderful place to encourage, to relate to musicians to the cultural scene. To be more than just music between commercials as it has become.”
The terrestrial nature of radio actually does root it in a geographic area -– a station has to exist in one location in order to broadcast. However, it’s still an easy thing to just play what every other station is playing, to have edicts from central command about what’s on Billboard this week. One proposed solution is to bring in edicts from the FCC to require a certain percentage of localized content for every station.
Though we could hope for some kind of Clear Channel-less revolution, stations are unlikely to change their format in any short period of time, and even when they do, the commercial needs of a large station will still likely skew programming towards appealing to the widest audience their massive transmitters can reach, which brings the debate to the hyper-local option -– Low Power FM.
LPFM signals only reach between three and seven miles, so really not more than a single neighborhood. Congress approved the granting of LPFM licenses back in 2000, but the National Association of Broadcasters had protested, saying that these small stations would interfere with their current signals. Years of testing and changes to FCC rules later, it seems that more LPFM stations will be able to come on the air.
Proponents hope that these stations will be able to fill some of the gaps left behind by commercial radio and even public radio -– of local music, news, and service to niche markets.
It is an interesting strategy, returning to an older technology to circumvent some of the wave of gloablized offerings and syndicated programming. Since it is still terrestrial radio, presumably these stations would get the same free pass to performance rights that the big guys do, allowing them to compete more easily than the differently-structured satellite and Internet stations can.
As new technologies do emerge — podcasting becomes more widespread, and Wi-Fi radio even peeks over the horizon — the discussion changes. Concerns about localized content and reaching the community are even more important when making sure that everyone has access to the information in the first place –- access to the Internet at a real and functional speed. That began the discussion of the panel on Broadband Technology and the Creative Class.
With each development of new technology there has been a time when it seemed it would save the world. Ben Scott, Policy Director of Free Press, put it best with a story of the advent of radio. He points out how with each new technology, there are new opportunities for people to get involved with big media. With newspapers, you had to have large distribution to make an impact. When radio came along, talk of it in the '20s made it seem ideal for mass dialogue, removing barriers and limitations. Everyone would have it and all would be empowered to speak out through it, similar to what's happened with the Internet over the past decade. Once people realized you could make money with radio, guidelines and regulations were needed, which led to the creation of the FCC. Once the FCC's rules were in place, the democratization and freedom of radio disappeared. Skip to the 1940s when a new medium arrived — television.
And so on down the line — through TV, and cable, and on to the Internet. However, now is the time when regulators are starting to come in and try and build walls around the media and figure out how to fit it into a set of rules and regulations.
We can try to minimize the impact of these kinds of decisions, that the slight shifting of laws regulating communications practices won’t affect the way the world works. Sacha Meinrath of the Wireless Future Program at the New America Foundation sees it in a much grander light.
“At this heart there is this epic battle taking place right now….and the fundamental question is if the new status quo will be a hierarchical command and control communication future, or a more decentralized, and participatory communications future. So the battles we are fighting here are nothing less than a war for the future of civil society, and the basic tenets of democracy.”
If we consider our ability to speak and communicate central to our future as a society, certainly the freedom of access and speech on the Internet is as crucial as Meinrath said. In the context of the panel, though, this kind of free access also becomes mixed up with creative issues, questions of how an artist should be able to work and share and express themselves.
Hank Schocklee, founder of Public Enemy, stressed the importance of access so that artists would have the means to express themselves, and avoid the corporate structures that often overwhelm creative work. Mike Petricone, of the Consumer Electronics Association agreed, saying “[Broadband] is the key enabling application for artists. You can reach a global marketplace, go around gatekeepers, and create a middle class marketplace. So for the artist community an ubiquitous, functioning, broadband system is a good thing…and it's important that we don't let the nay-sayers lock the Internet down.”
Many believe that part of this “locking down” of the Internet includes adding filters to prevent the dissemination of copyrighted material. Of course, the shade of purple on the net neutrality folks’ faces at the mention of any kind of legislation of this nature can attest to their opinion. And so the real battles begin, in Copyright and Innovation in the Digital Age.
It goes without question that people who make art both want to and have a right to be paid for their work, but it is the mechanism through which this will happen, and the kind of rights structures that are already in place that cause the problems. The lines being drawn when speaking of copyright and digital media are both the hardest to understand and the most heavily defended.
“Music has been taken over by an anonymous mob of music looters,” Rick Carnes of the Songwriters Guild of America decried. Though perhaps that statement is a bit overblown, the issue of illegal use of copyrighted material on the Internet is going unchecked, and incredibly difficult to prevent given the nature of the technology.
However, the problem is only partially the piratical tendencies of some Internet users. The system of who owns what and how to find that information is so antiquated as to be almost comical in this day and age.
Never is it more obvious than in taking the example of YouTube. Of the millions of videos uploaded every minute to the site, they have an extensive software application that uses audio fingerprinting to try and identify not only copyrighted material but also to log its use so that the rights holders can be paid. It only works for the few companies who have agreed to “blanket licensing” with the site — a practice not widespread or supported by some of the artist organizations. For everything else, the process of even determining who owns the rights and ought to be paid is so difficult that it becomes prohibitive.
Chief consul for YouTube Zahavah Levine's frustration peaked while discussing the prospect of combing through all the different databases to find the rights holders to some songs, each held in separate locations and often neither searchable nor online. “Money is being left on the table! And we want to pay, we have to pay, but….it's an administrative issue, not an economic one.”
Again, we run into issues of disparity in the rights structure among different kinds of media, just like terrestrial radio and satellite radio have different requirements, YouTube content, being video is considered a “sync” and is considered under different laws than music played by itself. Other examples raised included legislation against DVR distributors, similar to cases against VCRs back in the day, where because the content is being stored on a central server and “re-broadcast”, it is possible to consider that a violation of the laws in place.
It was actually in the Q&A that the biggest question on my mind finally was raised, by Northeastern University professor David Herlihy: “Isn’t there a point at which trying to make digital media work with the current permissions structure is counterproductive? Maybe the slate just needs to be wiped clean.”
That may be the case that the current system needs to be eliminated, rather than reformed. Create a new one where the rules regulating digital media forms aren’t cobbled together from comparisons to older medias, and the whole thing makes sense according to the usage of the media rather than technical differentiation.
Peter Jenner, president of the IMMF, the International Music Managers Forum, and former manager of The Clash had some strong opinions on the subject. His work with rights management and music access has led him to some broad conclusions on how to make the business work in the digital age. The biggest thing? Getting rid of copyright altogether, at least in its current form.
"Copyright has to be checked. Copyright cannot rely on its traditional ways in this age. It has to become a remuneration right, rather than an exclusive right. It has to be an obligation that services which make money, directly or indirectly, from distributing music have to pay some sort of moderate amount of money which reflects the value that's being added to what they doing.”
Remuneration rights would allow the distributors to pay on a per use basis, rather than having to ask permission — it would be assumed that because it’s out there it can be accessed. Most of the squabbling that’s being done in the policy discussions is about how to “chop up the money” as Jenner put it, who should get paid for what and how much. That includes the bickering over how the various medias should be defined. “Whether or not it's a download, or a stream, or a sync, or a mechanical reproduction, or a performance. That's not something that should concern any sensible third party."
For the content providers and the users, the important thing is being able to access the music they want, and the musicians should get paid, but the how much and to whom is something that is worked out between the copyright legislators, and hopefully the artists themselves.
So, how about those musicians? They haven’t been forgotten entirely, right? Take the idea of a perfect world — assuming that legislation doesn’t curtail the distribution of music through the Internet, the 'Net remains neutral, and universal access to high-speed Internet is in the foreseeable future — what will the music world look like? While battles are being waged in courtrooms and boardrooms over all of the issues of ownership and distribution, musicians are still making music, and redefining what it means to create, to share, and to “make it” in the business — creating a Free Trade Music marketplace.
Alec Ounsworth, of Clap Your Hands Say Yeah is something of a poster child for this new musical revolution. This band has become immensely popular, while maintaining a record-company-free existence by putting out their own albums and promoting them online.
When asked to describe the band’s business model, he was proud of the band's independence. "I would like to imagine that it was purely independent. All the decisions we made at that time were done without anyone breathing down our necks, and without any implications…The simple goal was to put a record together. I think we benefited primarily from my own stubbornness to not deal with the music industry. I think if there is a choice to release a record, or make any creative venture independently, I think you should seize upon it.”
It’s a very attractive description, harkening back to a glorified simpler time where musicians made records, and if they were any good everything would roll out from there.
However, there is one key component to this process — the music has to be heard to be liked, and the reasons the record companies are as powerful as they are is that it used to be that they were the only way to get heard. Now, with the Internet and all the modes of self-promotion, it’s possible to reach an audience with nothing more than a laptop and a dream.
It’s not like everyone’s going to spend the day sifting through MySpace to find a band they like. We have other vehicles like Pandora or LastFM or others to discover music, and until recently, we also had Muxtape, a somewhat short-lived but brilliant mix-tape Web site that let people share their mixes of the moment, introducing one another to exactly what they’re listening to.
Justin Ouellette started the site with another simple idea — to help people share music. "I was working on something that would cause people to buy some new music, or at least discover some new music that they wouldn't have otherwise. And I think in that I was successful. I think the first step towards buying some new music is to know it's there, and that you like it. And we rely on hearing that music in some form of another, whether it is radio, or TV or the Internet.”
This is the ultimate Catch-22. We can put all of the strictures and laws and barriers in place to “protect” music and intellectual property, trying to guarantee that payments for work stay as they have been, but at what point does the music become so protected that no one gets to hear it. How will anyone know that it’s there, and learn to enjoy it?
Around and around we go, and we can only hope that when we stop, the result will be a set of policies that is fair to all the involved parties. The one thing that each and every panelist agreed upon was that participation was crucial to make sure that the coming changes are positive ones. That means understanding what the FCC is doing, speaking out, talking to other people, and insisting that the debate includes all of us, not just the few at the top. As FCC Chairman Michael J. Copps closed his keynote address: “We all must work together to achieve a media we can be proud of.”Powered by Sidelines