Words, Words, Words

Because e-books were not explicitly mentioned in most author contracts until about 15 years ago, disputes have arisen about who has the right to publish digital versions of older books. But along with other publishers, Random House, which releases Styron’s works in print, has said that clauses like “in book form” give it exclusive rights to publish electronic editions. In a letter to literary agents in December, Markus Dohle, chief executive of Random House, the world’s largest publisher of trade books, said authors were “precluded from granting publishing rights to third parties” for electronic editions.

Motoko Rich

New York Times

25 April 2010

As we bring this year to an academic close with concerts and festivals and the first glimmers and glints of who will be where next year, let us pause and examine the turning point at which we find ourselves in the intellectual property world. “How does this affect me? ” I hear you cry. The short answer is, in many ways that you may not have thought, Grasshopper.

Intellectual property relies on contracts, and contracts are, despite the opinions of their authors, written by mortals. There is no such thing as an iron-clad contract as time has a way of making its intentions known. All of the music that you buy from your favourite supplier is licensed from the author/composer/librettist under a contract. Contracts are limited by their terms and conditions. If the person drawing up the contract is neither omniscient nor incredibly precise in the language they employ, the contract may be unenforceable or offer loopholes in the terms and conditions that may be exploited by either or both parties.

When choral and band arrangements are contracted, there are a wide variety of rights that are under negotiation. Distribution, performance, duplication, medium are some of the principal rights that are covered. As you can see from the quote above, the medium through which the material is published is becoming an issue. As an author, there is a separate negotiation for audio recording rights, film rights. screenplay adaptations and extensions to contracts. Most of us who use online services for purchasing music are waiting for the day that all work will be offered as “print on demand”. We may well be waiting for a long time. Many publishers would like to see this happen as it would mean a relatively inexpensive solution to keeping a publication in print and in stock. Many authors would like to see this as it means that more of their titles are available for performance (and for sale). Why hasn’t it already happened? Read the contract.

If a contract has not specified electronic means in its terms and conditions, the author has the right to enforce the contract and not allow electronic distribution. That means opening up a renegotiation for electronic publication rights with everyone involved in the publication in question. “Everyone?” I hear you ask? The composer, the arranger, the lyricist or poet if the choral work is taken from a pre-extant text all have a say in the publication or non-publication of the piece, depending on their original contract for the piece. If any one of them does not agree the terms, the contract cannot be completed and the piece cannot be published electronically.

This is one of the reasons why films of events such as “Woodstock” have featured artists and songs. Unless all the performers agreed, including the composer and lyricist, the pieces could not be legally transmitted. It could be argued, if there were any advocates, that the pieces filmed, but not used should not even have been filmed. However, since ownership of many rock and blues songs is cloudy at best they were at least filmed. If the film distributors could not find a clear title for a composer or lyricist, the song could not be included in the film. Also if a band did not agree to their performance being distributed, no film rights. If a songwriting partnership disagreed, no film rights. For film rights read any rights and you’ll see the state of the current publishing field.

The current publishing field also has to cope with the emergence of a global market where copyright has always been specified nation by nation and in global treaties. If a country didn’t sign the treaty, any copyrighted material that entered the country had only the rights granted by the country where the material was located. The Internet can be filtered by nation so there is some form of discrimination possible. However, the licenses for publication have historically been granted nation by nation, often with differing publishing groups in differing nations. A case in point are my own books from Novello. The first three books are not licensed for sale in the US and Canada. The next four are available world wide, so Novello and MusicSales negotiated a different agreement with the holders of the publication and distribution rights.

So bear a thought for the publishers as you search for new repertoire and materials. Everything so far has presumed that for the most part the people concerned with the title want the piece to remain in print. It may surprise you that there are authors and composers, such as the late J.D. Salinger, who do not wish works to remain available after the initial contract period expires or in any altered form from the original specification.

I leave you with the contract terms offered me from Novello. Their lawyers are pretty sharp and I think that you will appreciate both the brevity and impact of their work.

In consideration of the payment set out in this Order you hereby assign to us with full title guarantee the entire copyright and all like rights in and to the product of your services performed by you pursuant to and under the terms of this Order (the "Services") for the full period of copyright including any and all renewals, revivals, extensions and reversions therein throughout the World to hold to Music Sales Limited absolutely. You hereby confirm that the payment referred to above shall be the entire payment whatsoever due to you in respect of the Services (including for the avoidance of doubt any further payment that may otherwise arise in respect of any rental and lending rights under the Copyright and Related Rights Regulations 1996) and, further, you give your consent to the Services being used in any form and in any media whether now known or hereinafter designed or invented without further payment of any kind whatsoever.

Enjoy your summer and re-create!

License To...?

Consider a future device for individual use, which is a sort of mechanized private file and library. It needs a name, and, to coin one at random, "memex" will do. A memex is a device in which an individual stores all his books, records, and communications, and which is mechanized so that it may be consulted with exceeding speed and flexibility. It is an enlarged intimate supplement to his memory.

Vannevar Bush, “As We May Think”
Atlantic Monthly, July 1945

As we begin this year’s journey through the uncharted waters of academe, it is good to look back into the history of technology at a visionary thinker. Dr. Vannevar Bush was Director of the Office of Scientific Research and Development. He supervised the progress of scientific research during the Second World War and was on the cutting edge of technological developments. In this article for the Atlantic Monthly, he looks to the future of technology and its wider application to more ordinary uses. He discusses the innovations of microfilm, dry printing, dry photography and their application to the invention of a desk system, “the memex” as described above.

As knowledge workers, we daily manipulate vast amounts of books, records and communications. We can look back sixty-five years and see the concepts behind our modern computing system appearing hazily in the distance. He does not predict the intercommunication of the desks and libraries into one enormous virtual desk. He still talks about buying information.

In our world, the “books, records, and communications” have expanded exponentially to include films and music. Not only do we now purchase films and music for our entertainment we also create and publish them for the use of others. Our creations are also managed from our memexes; we license the performance through third-party brokers like YouTube or Vimeo.

One of the major issues in the world of the performing arts today is the debate about compensating artists for their work. If you want a picture of the music market of today, ask your fourteen ear old students how they buy their music. You may be in for a surprise, as many don’t actually buy music. At least one mobile phone operator licenses its users to temporarily download as much music as they wish from the firm’s online library. That downloaded music will disappear when the contract ends. Others use services such as Spotify where licensed music is available for you to listen to online. You can organize and share playlists, but you don’t own the music and are restricted from storing any on your personal devices.

Those are some of the legal ways of obtaining music without purchasing it. The world of illegal file sharing, sometimes called ‘torrenting’ after the BitTorrent networking client, rears its head. You may recall the birth of file sharing with the service named Napster. Sean Fanning transformed the system where people on a network designate share points for posting files for visiting users into a centrally searchable database of the contents of al the subscribers to the service shared content. His network was not the local area network or wide area network of an office or university campus, it was the network of networks – the Internet. The music industry took action, and along with major film and television organizations still continues to take action against its successors. Distribution of copyright content is strictly controlled by the industry, sometimes through physical means such as region codes for DVDs, but always through contracts and licenses. What is available on eMusic in the UK differs from what is available on eMusic in the United States. Pandora, the online music service, had to curtail its operations outside of the United States because agreements on licensing could not be reached with the record industry. One of the newest forms of distributing music is through performance videos on YouTube. This has become a ‘hot button’ issue because of the potential for redistribution of copyrighted material.

When content is posted to YouTube, according to the YouTube terms, posters are to ensure:

9.2 You agree that you will not post or upload any User Submissions which contain content which it is unlawful for you to possess in the country in which you are resident, or which it would be unlawful for YouTube to use or possess in connection with the provision of the Services.

9.3 You agree that you will not upload or post any User Submissions that are subject to any third party proprietary rights (including rights of privacy or rights of publicity), unless you have a formal licence or permission from the rightful owner to post the material in question and to grant YouTube the licence referred to in paragraph 10.1 below.

Your students may not know that the video and audio rights for performances that they attend are licensed and that they do not implicitly have the permission of the copyright owners to transmit or rebroadcast personal recordings of copyright performances. When students are adding music to a film or media project, they must be explicitly be warned of copyright issues and further distribution outside of the classroom if they use any material copyrighted by others from their music libraries.

In that light, it is worth reminding your students that when they are posting their own original work on YouTube that, according to the Terms posted on YouTube, they are entering a contract with YouTube and granting a license to YouTube as follows:

10. Rights you licence

10.1 When you upload or post a User Submission to YouTube, you grant:

1. to YouTube, a worldwide, non-exclusive, royalty-free, transferable licence (with right to sub-licence) to use, reproduce, distribute, prepare derivative works of, display, and perform that User Submission in connection with the provision of the Services and otherwise in connection with the provision of the Website and YouTube's business, including without limitation for promoting and redistributing part or all of the Website (and derivative works thereof) in any media formats and through any media channels;
2. to each user of the Website, a worldwide, non-exclusive, royalty-free, licence to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions to the extent permitted by the functionality of the Website and under these Terms.

10.2 The above licenses granted by you in User Videos terminate when you remove or delete your User Videos from the Website. The above licenses granted by you in User Comments are perpetual and irrevocable, but are otherwise without prejudice to your ownerships rights, which are retained by you as set out in paragraph 8.2 above.

Every nation has its own copyright clearance body and procedures. The world of copyright has not yet found a global understanding. Rights are licensed and applied differently all around the world. What is “fair use” in the United States is “Prohibited Activity” elsewhere. Some countries have only a notional form of copyright protection and licensing that is largely ignored. All we can do as educators is make students and our colleagues aware of both their rights and their responsibilities and do our best to ensure that our practices are in line with the local laws.

Our personal memexes grow smaller and more powerful with every passing year. The material that we have access to grows every year. The association we can make between performer and composer and consumer of creative acts grows deeper and richer. We need to make sure that an attitude of respect for the works of creative artists is being established.