Who Really Owns Music?

By BRENT SILBY

Philosopher

UPT School

Christchurch, New Zealand

I remember buying music CDs for around $20. At the time, it seemed quite

reasonable to pay for CDs. After all, I was taking possession of a tangible

artifact--a thing that cost something to produce. I was well aware that a

proportion of the CD price was being paid to the original performers and

composers, and that didn’t bother me. The fact that some of these performers

became multimillionaires was testimony to their skill in producing music that

sold so well. But times have changed, and I am now questioning this old

economic model.

You-Tube Troubles

Recently, video hosting website You-Tube has run into difficulties with music

publisher Warner. In 2006 Warner started legal proceedings against You-Tube

seeking damages of around 1.5 billion dollars. This action was taken as a

consequence of the number of music videos being posted on You-Tube. Now,

the owners of You-Tube do not post the music videos themselves, but as hosts

they are directly responsible for the content being uploaded to their site. Since

You-Tube’s inception users have uploaded tens of thousands of music video

clips. These are viewable by the public for free, and therefore publishers such

as Warner are missing out on valuable profits.

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When Google purchased You-Tube in 2007, Warner suspended their legal

action. This was a result of a deal worked out with Google, which saw Warner

being paid a percentage of the advertising revenue generated when people

view music videos on the You-Tube site. They have now reinstated the legal

proceedings, and Google has been forced to remove thousands of music videos

from You-Tube.

Is this fair? For many people the answer is “yes”. After all, Warner does, in

fact, own the music videos, and if they are being distributed for free then

Warner cannot gather revenue from the product they own.

But wait! Why does Warner need to gather the revenue from these music

videos? It is not costing them anything to have these videos on You-Tube. It is

not as if someone has stolen thousands of DVDs from Warner. The videos on

You-Tube are digital copies. The only company wearing any cost in this

situation is You-Tube--hence Google.

We could respond to this point by suggesting that although Warner has not had

to spend any money on the copying and hosting of these videos, the original

artists need to be paid for their work. The argument is similar to all music

piracy arguments. The idea is that composers and performers need to be paid

for their work, otherwise they will be unable to afford to continue producing

music.

This is a valid point, but we can respond by stating that the original performers

have, in fact, already been paid. They were paid when the music was originally

released. Their payment came from the sales of CDs and music videos. Indeed,

they probably earned vastly more than they would have if they were simply

paid an hourly rate for the production of the music. So why do they need to

continue to earn money from it? Does it make sense that Paul McCartney still

gets paid every time a radio station plays “Hard Day’s Night”? The song

probably only took a couple of hours to write, and it probably took less than a

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day to record in a studio back in the 1960s. Why should he continue to be paid

for this song 40 or 50 years after it was originally produced?

The concept of copyright and royalty payments in music has a long history. It

stems back to the late eighteenth century. Before this time, composers were

generally employed by aristocrats, churches, and royalty. They earned a yearly

income in return for which they produced new music. As times changed, and

composers started to write for the free-market, they faced a problem. If they

wrote a successful piece of music, which was then copied to be performed by

other people, they would not gain from its success. Sure, they would have

earned money from the composition, but if it were too successful, people

would continue to use it in concerts and there would be no immediate need for

new compositions. You can see that it would be in the composer’s best interest

to write mediocre work, which would only be performed a few times before

people demanded something new. If the work was too good, then it would

continue to be performed, thus lowering the demand for new work. The

concepts of copyright and royalty payments were developed in response to

these issues. The new laws gave composers an incentive to produce high

quality work. The higher the quality, the higher the demand, which translated

to an ongoing revenue stream.

Early copyright laws protected composers but not performers. Before recorded

music, this was obviously not an issue. Before phonograph recordings became

commonplace in the early twentieth century, performers were paid every time

they played for an audience (live or on radio). But when people started to

make recordings of performances there was naturally a high level of concern

within the musical community. From the point of view of the musicians, it

seemed that their future was in jeopardy. After all, if people could play

recordings of music over and over, then why would they need to pay a band to

perform the music? The situation was further exasperated when radio

broadcasters began to play recordings rather than employ live bands. To solve

the problem, various unions and collectives were formed to protect the rights

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of the musicians and composers. The current situation sees musicians being

paid each time a copy of their work is sold or broadcast. Its as if the

performers are being paid “in absentia” for their music--as if they are being

paid to perform each time the piece is paid.

The reasoning seems fair when we consider the needs of the musicians. But

now that large publishing corporations are involved, questions need to be

asked about the wisdom of this old model. Would we expect Leonado Davinci

to be paid every-time someone makes a print of the Mona Lisa? Would we

expect Leonado Davinci to be paid every-time someone views a copy of his

Mona Lisa? Would we expect the art gallery that originally displayed the Mona

Lisa to be paid every-time someone views a print of the original? The idea

seems absurd, and yet this is how we are expected to understand the music

industry.

Of course, it is true that the museum containing the original Mona Lisa charges

admission. In effect, people are paying to view the original artwork. It is also

true that the original Mona Lisa carries considerable value. But this is because

it is a one-of-a-kind artwork. Its the rarity that gives it the value. It is

obviously not worth any more than a few dollars in terms of materials and time

taken to produce, but since there is only one, its value has become inflated.

The analogous situation in the music industry would be watching a live

performance by the original musicians, rather than a video-recorded

performance. It is perfectly reasonable to expect people to pay to see a live

performance of a musical work. The situation is similar to viewing the original

Mona Lisa. It is a rarity, since the musicians are original and a one-of-kind

combination. Furthermore, the musicians are actually on stage performing, and

they need to be paid for their time. But in the case of recorded music, I see no

reason why the musicians and publisher need to be paid each time a copy is

made--so long as they have received payment for their time and efforts when

the music was originally produced.

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Who Owns Music?

There is a further problem with the notion of paying every-time a musical work

is heard or copied. This is a Philosophical problem, which relates to the

fundamental question Who Owns Music? Our commonsense answer would be

that the music is owned by the person who created it. But when we look at the

issue closely, this answer seems less satisfactory. Surely music, like all human

artifacts, belongs to all of humanity. Consider, for example, science. No-one

owns a scientific theory. Sure, a theorist will usually attach their name to a

theory, but they do not own it. Scientists do not charge money every-time

their theory is used or referenced in scientific papers. The same is true of

mathematical algorithms. No-one can own an algorithm. This is because

algorithms are discoveries. Mathematics is built into the fabric of the universe,

so cannot be owned.

We can extend this idea to the creation of computer programs. A program is a

vast collection of algorithms. The end behavior of the program may be

considered to be greater than the sum of its parts, however it is reducible to

algorithms. Computational algorithms are mathematical algorithms, and so

they cannot be owned. Consider a basic algorithm: total=x1+x2+x3...+xn

(where n is the final number in the series). This simple computational

algorithm calculates the total of a string of numbers. It is simple math and was

not invented. Rather, it was figured out, much like 1+1=2 was figured out. It

would not make sense to suggest that someone invented 1+1=2. It would

make even less sense to propose that 1+1=2 can be owned. Mathematic

functions are fundamental truths of the universe. I believe the same is true of

music. Music is not invented, it is discovered.

A composition is nothing more than an elaborate formulation of harmonics,

pitch changes, and tempo variances, which can be described by a finite

collection of rules. Composers learn the rules and discover new music based

upon those rules. When we analyze music, we can uncover the rules that

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composers have used to construct their pieces. Most musical pieces are simply

built around new combinations of what already exists, and these new

combinations are formed according to the narrow set of rules that are already

in place. This is especially true of jazz and the blues. Consider how many tunes

use the traditional blues bass-line. Music is algorithmic, and is therefore built

into the universe. For this reason it cannot be owned.

The Future

There is a well entrenched tradition in music, which sees publishers,

composers, and performers earning a percentage of sales. There was a time

during which publishers had to outlay capital to finance the production of each

sale “unit”. This was in the days of Vinyl records, Tape recordings, and

Compact Discs. During those days it was entirely reasonable for the publisher

to gather revenue from sales. This was to cover its ongoing production

expenses. But times have changed. Music is now copied at no cost and

publishing companies have no ongoing expense after the music is released.

Furthermore, composers and performers who have earned their money during

the production of the music do not require any additional payments.

I believe the time has come for the creation of a new revenue model for music.

It is reasonable for composers and musicians to earn money for the work they

do. It is also reasonable for publishers to recoup their expenses and make

profit for publishing music, but once it is out in the public, people should be

able to do whatever they want with the music. People should be free to copy

and distribute the music as they wish--with the proviso that they include the

name of the composer and performers with the copy. Music is an algorithm,

which means it is discovered rather than invented. Therefore it cannot be

owned by anyone. Musicians, like scientists and computer programmers,

should be paid for their discoveries, but their work belongs to us all.

© Brent Silby 2008

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Bibliography

Brewster, Bill and Broughton, Frank. (2000). Last Night a DJ Saved My Life:

The History of the Disc Jockey. New York: Grove Press.

Melograni, Piero. (2007). Wolfgang Amadeus Mozart: A Biography. Chicago:

The University of Chicago Press. Translated by Cochrane, Lydia G.

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