Hard News by Russell Brown

124

The Public Good

Is the Campbell Smith who told a select committee last week that illicit downloading was killing his artists' careers and forcing them into day jobs the same Campbell Smith who told a room full of people several years ago that he didn't have much of a problem with file-sharing, which was "the only marketing we've got in most territories"?

Yup. I don't particularly hold it against Campbell. He's a good guy. And back then, he was solely an artist manager. Now he's an artist manager and the CEO of the Recording Industry Association of New Zealand, and there are different expectations of him.

It is probably true that illicit copying is costing some local artists some sales, but it is certainly not true that it accounts for the career fortunes of Campbell's whole roster. If Scribe's scratching a bit, that'll be because he hasn't had a new album in nearly four years and has barely played locally for the past two.

And Bic Runga's third album, Birds, has sold only 50,000 copies (compared to 100,000 and 160,000 respectively for the first two) because it doesn't have any pop hits on it. That's not a criticism, but it's sombre and introspective even by her standards. But it still entered the New Zealand charts at number one and sold double platinum in a fortnight. That 50,000 sales represents triple platinum status.

And I'm not sure if Campbell's artist will thank him for the mention, which won her some unwarranted hostility from readers in the Herald's Your Views section.

Update: This just in from Bic herself in her MySpace blog:

Got home to some fuss in the media about how most New Zealand musicians have to have day jobs. Now that's never been news! But you know, I haven't flipped burgers since i was 15 (actually, I was very good at it, I once made up an order of 21 burgers in one go.) Thanks for your concern, but most musicians are just happy to be musicians.

The more modest recent sales figures for some well-known artists need to be set against the fact that the late 90s and early 2000s were a period of unprecedented sales success. There were more multi-platinum New Zealand releases than there have ever been. New Zealand music sales grew in a declining overall market, and a handful of artists had a simply phenomenal impact.

But previous results are no guarantee of future performance. Nesian Mystik's sophomore album captured few hearts the way their first one did. And it's not like no one's selling records. In the past two years, Fat Freddy's Drop's Based on a True Story has set a new record for weeks at number one total and weeks on chart. It has sold 105,000 copies so far. If downloading is killing music, someone forgot to tell the Freddies.

It wasn't business as usual: Based on a True Story was the first independently-distributed album to top the local chart, and it did so with almost no conventional marketing expenditure. The band played live and toured a lot, and ran itself as a self-contained business. Its arrangement with its distributor, Rhythm Method, was based on trust, rather than a formal contract.

IF RIANZ members - that is, the major music companies - want to use the artists to plead their case, they also need to be called on the way they treat those artists, especially in the small but growing realm of legitimate download sales. As I've explained here before, a local artist signed with a major label will typically get about half as much from a sale on the iTunes Store as an independent artist. I know of one or two artists tied to major labels who are quite frankly being screwed on downloads.

But sales are but one income stream for today's artists, and not always the key one either. A single licence for a track to be used in a TV ad makes a direct copyright return to the creator that's worth thousands of sales. Other forms of rights income are nearly as important. None of these are under threat from file-sharing, and none will be facilitated by the kind of draconian laws the industry is demanding for its benefit.

RIANZ spent a lot of money on its select committee submission, so much so that Independent Music New Zealand chose to join in rather than make its own. I've seen the submission, and it would be fair to say I'm very disappointed by parts of it.

The highly conditional format-shifting exception and qualms about the exalted status of TPMs via Section 226 have been dealt with fairly extensively. So - pausing to note that the music companies' submission calls for the bill to be strengthened to make it an offence for anyone to personally circumvent a technological protection measure - let's start here:

Secondly, the subscription model, which typically allows unlimited rental-style access to a catalogue of songs in return for a fixed monthly fee. These services offer access to catalogues of up to one million separate recordings. Subscription services are a growth area for the music industry. Music subscription services such as Rhapsody, Napster and e-Music now reach 3.5 million consumers worldwide, growing by 25% in the last year.

Although subscription services are not yet available in New Zealand, we are hopeful that the developing market will soon support such services. We discuss this further with regard to TPMs below.

I would have thought that $35,000 worth of lawyering would have procured a little more accuracy. Emusic, the second-biggest music download service in the world, does require a monthly subscription, but it assuredly is not a subscription service in the way the RIANZ submission implies. You download a track from eMusic, you keep it.

And insofar as it relates to TPMs (technological protection measures), it's an argument against them. Emusic sells high-bitrate MP3 files with no DRM. It is available to New Zealanders. And the major labels' expression of "hope" for emusic is a little ironic, given that they all refuse to license music to it because of its no-DRM policy.

One of the more draconian provisions in the draft Copyright Amendment Bill is 84 (c) - the one that would withdraw the exception for "time-shifting" of programmes - that is, recording for later consumption - in circumstances where there was an on-demand version of the programme available, even at an additional cost.

TVNZ has told the select committee it doesn't even want this provision (which would ban the use of a PVR or VCR to record Shortland Street, TV news and a very wide range of other TV and radio programmes made available either free or for purchase via the internet) - that it's simply unrealistic in terms of consumer behaviour. RIANZ, as you might expect, thinks it doesn't go far enough:

A further development to be taken account of is the newly-created market for podcasts of work. Copyright owners or licensed providers now make podcasts available for purchase and obtain a return. The wide time shifting provision in the Bill will interfere with the normal exploitation of copyright owners and thus be in conflict with both the Berne Convention and TRIPs Agreement.

This is nonsense. I'm not aware of a single New Zealand podcast made available on a paid basis, and few that are produced in New Zealand contain musical elements - because RIANZ almost always denies permission.

But the submission's depiction of copyright crisis is relentless. Take the section on stream-ripping - the online equivalent of taping stuff off the radio:

Stream ripping; what is it? 129. Many radio stations now make their broadcasts available by streaming (simulcasting) or webcasting their programmes over the Internet. In addition digital radio is appearing in other jurisdictions and will likely operate in New Zealand within a year. Broadband Internet access enables such radio programmes to be widely available to Internet users. As a result, many radio stations around the world are instantly accessible via the Internet. For example, it has been widely reported that the New Zealand radio station, George FM, is listened to in Germany. In addition, digital radio is operating in several countries and it seems likely that it will be introduced in New Zealand within a year.

130. When content is transmitted digitally in these ways, it is accompanied by metadata. Metadata is information that is embedded in the broadcast, and is capable of being detected and processed by digital reception devices. So, for example, the metadata associated with a digital radio broadcast would typically include data identifying the track name for particular sound recordings within the broadcast. Metadata means that listeners are easily able to, through the use of automated tools, identify specified broadcast or streamed content, and then record and manipulate it. This is called “stream ripping”.

131. Stream ripping devices and tools now allow users to take music from simulcast radio and webcasts and digital radio (which are intended to be transient and non- interactive) and make permanent copies of sound recordings. These are then available on demand on the user’s equipment. The Windows Media Player program on most computers has a button you click for recording to hard-drive (or burning to CD Rom). Some tools that are now available enable metadata searches so that a user can set up an automated request for a song e.g. Fat Freddy’s Drop Wandering Eye. The automated programme then finds the song on a webcast, anywhere in the world and records it. If a number of songs are chosen, then the user can create a library that is in clear substitution for legitimately purchased downloads. In practical terms, this presents a far greater threat than consumers waiting by their radio and pressing the “record” button when a favoured song is played.

You might assume from the above that George FM's stream contains this sort of metadata. It doesn't. Neither does bFM's stream, or Radio New Zealand's (indeed, RNZ's web guy Richard Hulse didn't even know it was possible until I asked him about it). I'm not aware of any local station that does. When you start narrowing all this down to the few internet radio stations that embed metadata; the consumers who know what it is; the consumers who'd purchase a dodgy stream-ripping app; and the consumers quite quite frankly can even be arsed with all that, you're not talking about a really big issue.

To address the stream ripping threat, we submit that there should be an exclusion from the time shifting provision if a person uses metadata or an automated process to identify and selectively record certain sound recordings from a communication work.

Oh, whatever …

The music companies want to further restrict the right to time-shift to someone who:

(b) makes the recording solely for the purposes of viewing or listening to the recording once only at a more convenient time.

In sum, this all proposes an unenforceable law that no one will pay the blindest bit of attention to, although I am sure that those involved in this submission will stand out by virtue of their religious adherence to it, and they will all cease using their video recorders in all but the most restricted circumstances. Or not.

But if that part's silly, the parts which seek to tightly restrict the ability of libraries and archives to digitise collections, and even to make works available for viewing on-site border on the offensive.

Short version: libraries should not be able to format shift sound recordings for archival purposes. And, further, "it is submitted that libraries and archives should not be permitted to make sound recordings or films available both in terminals on-site or terminals off-site and that such rights are not necessary for their proper functioning and operation."

But this is actually the basis on which organisations such as the New Zealand Film Archive operate. No one goes to the Film Archive and sits at a terminal to view a work for the sheer entertainment value of it. But people ought to be able to see those works (most of which are not available any other way) for study or information purposes. There is a clear public good in them being able to do so.

I understand that the music companies are obliged to defend their copyrights, which are the basis of their business. They are going to have particular views on copy-protection and format-shifting. Generally speaking, I don't approve of illicit copying and downloading of music: which isn't to say I've never done it, but I try not to, and I spend money every week on legitimate music downloads. But parts of this submission go beyond the purview of copyright law, and, indeed, beyond the legitimate interests of music companies.

Here's the thing: the public good has been invoked frequently in the past decade as a compelling rationale for support of the arts. Taxpayers' pockets have been tapped to the tune of millions, radio stations have amended their programming and a lot of people have preached the good word. Music companies and their artists have gained from all that. In that light, those involved might want to reconsider the contempt for the public good shown in parts of this submission.

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