[Ecommerce] Boyle on breaking the deal

[Manon Ress]

from here. it's a deja vu all over again?

http://www.ft.com/cms/s/a83519c8-7593-11db-aea1-0000779e2340.html

Breaking the deal
By James Boyle

November 16 2006 17:00
I hired an artist to paint a portrait. I offered $500. He agreed. We
had a deal. He painted the painting. I liked it. I gave him the
money. A few years later he returned. =93You owe me another $450=94 he said=
.

We looked at the contract. =93But you agreed to paint it for $500 and I
paid you that amount.=94 He admitted this was true, but pointed out
that painters in other countries sometimes received higher amounts,
as did sculptors in our own country. In fact, he told me, all British
painters planned to demand another $450 for each picture they had
already painted as well as for future pictures. This would
=93harmonise=94 our prices with other countries, put painting on the same
footing as sculpture, and enable painters to hire more apprentices.

His other argument was that painters often lost money. Only changing
the terms of their deals long after they were struck could keep them
in business. Paying the money was my duty. If I did not pay, it meant
that I did not respect art and private property. I told him this was
absurd. =93Really?=94 he said, =93we got the idea from a proposal about the
copyright term over recorded music. The recording industry thinks it
is brilliant!=94

The copyright term for sound recordings in the UK is 50 years. (It is
longer for compositions.) The recording industry, as well as
successful artists such as Sir Cliff Richard and Ian Anderson of
Jethro Tull, wish to extend that term to 95 years, or perhaps even
longer =96 the life of the singer, plus 70 years. This proposal is not
just for new recordings, but for the ones that have already been made.

Obviously, 50 years of legalised exclusivity was enough of an
incentive to get them to make the music in the first place. Now they
want to change the terms of the deal retrospectively. They say this
will =93harmonise=94 the law internationally, give recordings the same
treatment as compositions, help struggling musicians, and give the
recording industry some extra money that it might spend on developing
new talent. (Or on Porsches, shareholder dividends and plastic ducks.
If you give me another 45 years of monopoly rent, I can spend it as I
wish.)

Is this idea as outrageous as the demands of my imaginary painter?
No. It is much, much worse.

The majority of sound recordings made more than 20 years ago are
commercially unavailable. After 50 years, only a tiny percentage are
still being sold. It is extremely hard to find the copyright holders
of the remainder. They might have died, gone out of business, or
simply not care. These are =93orphan works=94 =96 a category that comprises
the majority of 20th century cultural artefacts.

Yet without the copyright holder=92s permission, to copy or
redistribute these works is illegal even if it is done on a non-
profit basis. The goal of copyright is to encourage the production
of, and public access to, cultural works. It has done its job in
encouraging production. Now it operates as a fence to discourage
access. As the years go by, we continue to lock up 100 per cent of
our recorded culture from a particular year in order to benefit an
ever-dwindling percentage =96 the lottery winners =96 a grotesquely
inefficient cultural policy.

Finally, 50 years after they were made, all recordings enter the
public domain and can be made available freely by and to anyone in
the country. But not if the record companies can persuade the
government-commissioned Gowers Review on intellectual property
otherwise. Like my imaginary painter, they want to change the terms
of the deal retrospectively. But at least the painter=92s proposal
would not make 90 per cent of paintings unavailable just to benefit a
tiny minority of current artists.

I have an idea for the Gowers Review. The recording industry=92s
proposal for retrospective extension is effectively a tax on the
British music buying public to benefit the copyright holders of a
tiny proportion of sound recordings. The public loses twice. It loses
first when it is forced to continue to pay monopoly prices for older,
commercially-available music, rather than getting the benefit of the
bargain British legislators originally offered; 50 years of
exclusivity, then the public domain. The public loses a second time
when, as a side effect, it is denied access to commercially
unavailable music; no library or internet enthusiast can make the
forgotten recordings available again.

The whole idea is very stupid. But if this is the stupid idea we wish
to pursue, then simply increase the income tax proportionately and
distribute the benefits to those record companies and musicians whose
music is still commercially available after 50 years. Require them to
put the money into developing new artists =96 something the current
proposal does not. Let all the other recordings pass into the public
domain.

Of course, no government commission would consider such an idea for a
moment. Tax the public to give a monopoly windfall to those who
already hit the jackpot, because they claim their industry cannot
survive without retrospectively changing the terms of its deals? It
is laughable. Indeed it is. Yet it is a better, saner proposal than
the one before us. Which tells us something about the current state
of copyright policy.

James Boyle is Professor of Law at Duke University. His newest book
is a literary mystery called The Shakespeare Chronicles, available in
paperback, hardback and for download here


************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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