by : May 2013, Music Law

The Copyleft Tradition

The Copyleft Tradition

In past years, music has firmly established itself as a free good in the minds of many consumers, making it increasingly difficult to monetize and track licenses especially in the electronic music scene where sampling and remixing is commonplace.  Aside from the music itself, the costs associated with music production have also decreased, making high-quality music creation accessible to amateurs.  This accessibility has transformed music into an amiable art form –where styles are transitory and trends emerge and evolve daily.  While there is value in copyright ownership and monetization, many of the copyleft and creative commons movements would argue that the free progression of art trumps any monetary benefit.

The EDM Culture

The nature of the electronic music culture lends itself to infringement, and yet some producers are still unwilling to make their work available for sampling and remixing.  Ethically, one would assume that if a producer “borrows” another’s music it then would become acceptable for others to “borrow” his music.  In a way, if this mentality were honored, electronic music could be considered inside the public domain.

However, not every producer shares this mindset – especially ones that stand to make a large profit from their music.  Additionally, allowing others to create derivative works does not necessarily prevent those derivatives from being copyrighted as new pieces with no credit given to the original author.  By giving up derivative rights outright, producers face the possibility of losing a good deal of money in the future.  Furthermore, if a derivative surpasses its contemporary, the original producer will be overshadowed by the derivative’s success and forgotten in its wake.  These monetary and egotistical factors act as barriers between our closed society and free musical progression.

History

The computer programming industry developed a solution to this problem back in the 1980’s – copyleft.  Computer programming, like electronic music, can easily be managed by one person, is always morphing into new products as programmers modify each other’s work, and is subject to copyright law.

In 1984, a programmer by the name of Richard Stallman resigned from MIT to prevent the school from having any claim on his software.  He believed intellectual property was an unhealthy concept for the computer programming industry, and that programmers should instead be allowed to share and develop software together. “It wasn’t worth continuing in the software field without being able to cooperate with people and to write and improve whatever program you want to improve.  I decided that I would make a new software-sharing community even if I had to write all the software myself.”1  He went on to create the GNU Project, which developed free software that could be built upon and improved for the good of society.2

The project allowed programmers to work together and share information.  With this sharing principle, programs improve and develop quicker than they would if they had been restricted.  Despite the talent employed by these large corporations, the united knowledge and creativity of the masses often lead to more advancement and innovation.

Sharing leads to the creation of a derivative work, which requires a license in copyright law.  To achieve their vision, Stallman and the GNU Project could have placed their software into the public domain, but this approach would perhaps create more problems than it solved.  Once a derivative work is created, parts of that work become copyrightable again, and the new copyright owner can prevent the software from being shared in the future, thus halting the innovation process.  Also, despite Stallman’s pure intentions, programmers still need to be paid and earn a living.  Stallman believed that programmers should still be paid for their services, just not the proprietary rights of their software.3

Stallman created the copyleft license to ensure the continuation of the permission-free software movement and to ensure the programmers could make ends meat.  Copyleft is a license that works inside modern copyright laws; instead of abandoning the rights to the public domain, the license creates stronger proprietary rights in the GNU Project’s works.  The GNU copyleft license gives users permission to copy, modify, and distribute the software on the condition that all derivative works are licensed under the same terms.4 The user must also “agree (i) not to establish proprietary rights in the software; (ii) to provide the source code to anyone to whom they give the object code;(iii) to include in the software notice of the applicability of the GNU GPL;and (iv) to accept the software without warranties of any kind.” 5  Many commonly used programs, such as Firefox, Open Office, and the Linux operating system were developed and continue to be improved upon through the copyleft principle.

In practice, a programmer creates and sells a piece of software, which can then be changed and developed.  The resulting derivative work can also be sold, but must use the same license as the original programmer, allowing for the free creation of derivatives.  Using this methodology, the programmer still profits from his services, but cannot limit the future development of that software.

Creative Commons and Music

The copyleft idea spread to creative industries in 2001 with Creative Commons.6  Much like copyleft, the Creative Commons’ purpose is to allow owners to easily grant licenses for their copyrighted works, allowing for monetization and the free progression of the arts. Creative Commons has several different licenses including: Attribution, No Derivative, Share Alike, and Noncommercial.  These licenses can be combined to fit an artist’s needs, allowing a creative to control how their works are used without the bother of licensing each individual use.

In music, producers often build upon each other’s works to create something new and original.  By employing an Attribution Share Alike license, music producers can effectively replicate the copyleft license from the software industry.  The Attribution license requires all derivatives or covers to credit the original author, and the Share Alike license requires all subsequent creations to use the same license as the original.

This principle need not be confined to the electronic music industry, though.  Many artists, including Trent Reznor of Nine Inch Nails, have made their masters available free for remixes.  By using the Noncommercial license, artists can allow amateurs to build upon their original while still maintaining income streams from professional uses.  Additionally, the recent development allowing artists to more accurately track and monetize YouTube videos has made covers, remixes and derivatives profitable for the original artist.

While many consider this free progression of music to be beneficial to the industry as a whole, the Creative Commons movement has not yet reached a critical mass.  It is not copyright law and it is not mandatory – artists must choose to opt-in to this principle.  Many musicians are not aware of Creative Commons and others simply fear change – giving up copyrights has historically been associated with negative connotations.  Creative Commons is, however, extremely dependent on network effects.  If only a small minority of musicians use this licensing system, it will provide little value to the industry as a whole.

Creative Commons presents an often misunderstood and misrepresented solution to amateur copyright infringement, sampling and the administrative nightmare of tracking uses.  It stands, not in opposition to copyright law, but as an augmentation, healing the bonds between musicians and fans torn apart by copyright litigation.  Copyright law was established to balance the good of the intellectual property owner with the good of society, and Creative Commons is certainly a step forward for both parties.

By Allen Kronenberger & Chelsea Ira

 

Endnotes

1. Ira V. Heffan, Copyleft: Licensing Collaborative Works in the Digital Age, 49 Stan. L. Rev. 1487, 1505 (1997)

2. The software is free to edit and change, not free to initially buy.

3. Ibid.

4. Ibid.

5. Ira V. Heffan, Copyleft: Licensing Collaborative Works in the Digital Age, 49 Stan. L. Rev. 1487, 1508 (1997)

6. Adrienne K. Goss, Codifying A Commons: Copyright, Copyleft, and the Creative Commons Project, 82 Chi.-Kent L. Rev. 963, 978 (2007)

email

Comments

Leave a Reply