Berklee Today

Digital Technology, Copyright Legislation, and Fair Use

Legal determinations in the digital rights debate will affect all who create, sell, or study music with computers and the Internet.

by Nyssim Lefford '95 and Mark Nutini '93

These days, merely mentioning the topic of piracy of digital music, movie, and software files is sure to spark a lively discussion with parties vigorously defending their side of the argument. Illegal file swapping is an artifact of emerging trends in technology that create more flexible architectures, but the shifting foundation of content ownership and control in the digital domain is at the roots of how we compose, record, share, and listen to music. Recent legislative changes to copyright laws will have far-reaching consequences, not only for music but also for digital content in general. These changes can lead us toward tremendous creative potential or toward drastic restrictions. Considering the multiple tiers of the digital dilemma is crucial if we are to avoid adopting policies that will stunt technical and artistic innovation.

Among the voices clamoring to be heard in an effort to protect their own interests and those of their constituents, are those of the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA). They represent companies that create musical and entertainment content and are generally copyright owners. Organizations such as the Recording Artists Coalition (RAC) represent artists who work for these industries but feel that organizations like RIAA represent industry's more than artists' concerns.

The Future of Music Coalition (FMC) creates a voice for independent artists and labels on a wide variety of issues. Music publishers, their representatives, and collection agencies are not only concerned with the future of copyrights but also with the mechanisms by which royalties are collected and distributed. Broadcasters, Internet-based and terrestrial, rely on content created by the music and entertainment industries. Internet service providers serve both individual consumers and various industries. Technology and software manufacturers are interested in innovation and serving their markets. Advocacy groups have formed to lobby in favor of unfettered access to technology and information. Both the judicial and legislative branches of the government will play a large role in mediating and governing these diverse concerns. Together these entities create a strange texture as they weave in and out of issues they can and cannot agree upon.

Recent Legislation The Digital Performance Right in Sound Recordings Act of 1995 (DPRA) granted a performance right for digitally transmitted audio recordings. This is a statutory license that benefits the owner of a composition copyright, who holds both broadcast and performance rights. It also grants performers who do not own the composition copyright the opportunity to benefit from a digital broadcast. This royalty is divided between rights holders: 50 percent is allocated to the holder of the composition copyright; 45 percent to the featured artists; and 5 percent to nonfeatured artists (2.5 percent to the American Federation of Musicians; 2.5 percent to American Federation of Television and Radio Artists for vocalists). Webcasting royalties are collected from the license by collection agencies such as SoundExchange and/or Royalty Logic.

The Digital Millennium Copyright Act of 1998 (DMCA) amended the 1995 act to stipulate the digital performance right pertains to "noninteractive" webcasts only as defined by the DMCA. Interactive sites include subscription services and other revenue-generating sites such as www.mymp3.com and Bertlesmann,which owns Napster. In interactive or noncompulsory cases, the artists are not entitled to the 45 percent accorded by the DPRA but only to the percentages stipulated in an artist's recording contract. These royalties, unlike those granted by the DPRA, are subject to recoupable deductions by the record company producing their recordings. Record companies can legally strike licensing deals with interactive web broadcasters who want to use their content.

In November 2002, the Small Webcasters Settlement Act was passed allowing small commercial web broadcasters (who often feature eclectic or nonmainstream artists) a reduced royalty rate determined by the copyright holders rather than by the U.S. Copyright Office. This act received support from proponents of independent music such as the FMC and also the RAC.

The DMCA also makes illegal the circumvention of technologies intended to protect copyrighted works. It prohibits the manufacturing or sale of technologies designed to circumvent copy protection, or that fail to conform to industry standards for recording devices intended to prevent unauthorized copying.

Interactivity Downloadable audio files are tantalizing because they do not require a great deal of time or bandwidth to download and need relatively small amounts of disc space to store. The Moving Pictures Expert Group (MPEG) encoding and compression standard MPEG-2, layer 3 brought us MP3s. MPEG members represent both research and industry, and they work to improve the quality and distribution of digital media. These standards are complex and contain numerous components applicable to different aspects of an audio or video file. Like MP3s, new standards may be indicative of emerging creative and technical potential. The MPEG-4 standard, for example, contains a "structured audio" component that enables creators to wrap into a single, downloadable file various types of musical signals (audio and MIDI) as well as synthesis, synchronization, or processing instructions. The final mix is created or "rendered" on the listener's computer. In addition to presenting certain encoding and processing benefits, this scheme can be used to create more dynamic or interactive musical experiences. A single file could contain instructions for a variety of remixes or incorporate user input into the mixing process. With some creative impetus, this could be like MTV and an MP3 rolled into one. MPEG-7 pertains to meta-tagging of media content, or embedding descriptions of the content into the file to facilitate Internet/database searches. These features help people find the content they want.

Standards for E-Commerce. Working with technology currently available, there are numerous business models making use of efficient digital-music distribution. Along with webcasting and subscription services, some artists host elaborate interactive websites that act as conduits for fan communities. These sites are more than marketing tools and contain frequently changing content and subscription services whose benefits include such perks as advanced concert ticket sales. Additionally, there are virtual storefronts, like Robert Fripp's Discipline Global Mobile (www.disciplineglobalmobile.com) that act as vehicles for artists' creative activities - part label, part mail order company, and part fan-base service.

The challenge, of course, is providing the added-value components. As has been said many times, legitimate downloads must be easier to use, quicker to access, less risky, more fun, and more attractive to support. That's easier said than done in an industry that is launching digital copyright protection schemes to prevent the user from transferring content from one format to another (ripping a CD to load onto an MP3 player) or from playing certain formats in all devices (copy-protected CDs which won't play in computer CD-ROM drives).

Many of these emerging strategies are testing the doctrine of fair use as set out in copyright law. With so many new options for reaching fans and distributing music, many are reconsidering the standard industry model. In a June 2002 New York Times article by Jon Pareles, artist David Bowie said, "I don't even know why I would want to be on a label in a few years, because I don't think it's going to work by labels and by distribution systems in the same way. The absolute transformation of everything that we ever thought about music will take place within 10 years. . . I'm fully confident that copyright, for instance, will no longer exist in 10 years and authorship and intellectual property is in for such a bashing." (www.nytimes.com/2002/06/09/arts/music/09PARE.htm)

Fair Use Fair use privileges limit a copyright holder's exclusive rights and grant others the right to make limited use of another's copyrighted work without asking permission. Fair use is hard to define and enforce, in part because it must be considered on a case-by-case basis. Considerations include the purpose of the use (i.e., commercial, nonprofit, educational), the nature of the original work, the amount of the original work used, and the impact the derivative work may have on the value of copyrighted work. The DMCA makes provisions for fair use and consumers' rights in a digital environment, but there are conflicting opinions about what the consumer has the right to do with copyrighted media.

This controversy has included questions about the legality of time shifting (recording a TV show onto a VCR tape or TIVO to watch later) and space shifting (as in ripping a CD you own to play on a device other than a disc player) to the recent Sony release of a copy-protected CD that could be circumvented using a black Sharpie pen. Under the DMCA, merely transmitting information about the Sharpie technique is potentially a criminal activity. In October 2002, Congressman Rick Boucher of Virginia introduced the Digital Media Consumers' Rights Act to "reaffirm Fair Use" and to amend the DMCA. The legislation is aimed at providing balance in copyright law and the proper labeling of copy-protected CDs.

"The Fair Use doctrine is threatened today as never before," Boucher said. "The Digital Millennium Copyright Act of 1998 (DMCA) dramatically tilted the copyright balance toward complete copyright protection. The 1998 law enables the copyright owner to enshroud his material with a technological protection measure and then makes it a civil wrong and a potential federal felony for anyone to circumvent the technical measure for any purpose. Even people who have purchased and paid for copyrighted material would be liable if they bypass the technical protection for the purpose of making Fair Use of the work they have lawfully acquired. Under the 1998 law, copyright owners now have the power virtually to extinguish the Fair Use doctrine with respect to material delivered in digital format." (For the text of Boucher's statement, see www.house.gov/boucher/docs/dccrastatement.htm.) The Campaign for Audiovisual Free Expression (CAFE), a subset of the Electronic Frontier Foundation (www.eff.org/cafe), contends that "individuals have a right to access digital recording technologies that are currently restricted for all except for "professional" uses. This position contrasts with that of RIAA and MPAA, which currently oppose any technology that does not severely restrict functionality for copying and recording.

Public Domain and Copyright Term The first copyright act, the U.S. Copyright Act of 1790, granted a 14-year term to the author of a copyrighted work. At that time, there were no huge media conglomerates with vested interest in copyright protection. The concept of copyright was created to provide proper incentive to create and compensate the creator for his efforts. But the Constitution's framers considered the notion of a perpetual copyright damaging to the public good. To ensure that ideas would flow from creator to populace and to new creators, the term of ownership was limited. This term has been extended numerous times and now encompasses the life of the author plus 70 years, as defined by the 1998 Sonny Bono Copyright Term Extension Act. This legislation - backed by Disney, Bertelsmann, and AOL Time Warner - extends the copyright on more than 400,000 books, movies, and songs created between 1923 and 1943 for an additional 20 years.

Works in the public domain are no longer the property of any copyright holder. To quote Sir Isaac Newton, "If I have seen further, it is by standing on the shoulders of giants." This is a phrase often used by the Center for the Public Domain, which posts detailed accounts of the social, intellectual, and scientific importance of preserving the public domain (visit the site at www.centerpd.org). In January, the Supreme Court ruled on the Eldred v. Ashcroft case (which challenged the constitutionality of the "life of the author plus 70 years" term in the Sonny Bono act) and upheld the Sonny Bono act.

Media Consolidation The Telecommunications Act of 1996 loosened restrictions on the number of radio stations a single company could own or operate in a given market and did away with restrictions on national ownership. In November 2002, the FMC issued a report on radio deregulation that indicated that two-thirds of the market is dominated by 10 companies. Clear Channel and Viacom account for 42 percent of the listening audience and 45 percent of the revenues. At the local level, on average, four or fewer of these large conglomerates control 70 percent of the market share, making competition for independent stations extremely difficult. The report also warns of playlist homogeneity (visit www.futureofmusic.org to read the report titled "Radio Deregulation: Has It Served Citizens and Musicians?".)

As technology advances, and the current climate of change becomes the norm, numerous well-accepted music industry practices ultimately may seem unfair. Hollywood used to be controlled by a handful of studios that for decades thrived financially through unregulated, mutually agreed-upon policies. In 1948, the anti-trust Paramount decree forced the studios to sell off their theater chains, breaking up major-studio control over the industry and creating opportunities for independent filmmakers. It is imperative that - within the contraints of the law - we preserve options for all artists, innovators, and entrepreneurs. It is also crucial that we not only maintain but encourage technical and artistic exploration. A thriving culture includes independent artists, amateurs, and an engaged audience. There has never been a time when such a variety of visions and talents stood a chance of being heard by so large an audience. The decisions to be made about the fate of digital content must bear the greatest number of possibilities for a prolific and multifarious musical future.

- Nyssim Lefford '95 is a Ph.D. candidate at the Massachusetts Institute of Technology, studying psychoacoustics, music cognition, and developing music technology. Mark Nutini '93, formerly employed by Opcode Systems and Digidesign, is currently a web engineer at Red Hat, Inc.