<The absurdity of copyright>

Dr.Godfried-Willem RAES

Summary: Main theses which will be defended in this paper:

1. Information cannot be possesed . It is not property since it cannot be taken away.It is object nor energy , but essentially form.

2.Every form of treating information as a product is intrinsically contradictory to its very nature.

3.Copyright protection is not only based on an epistemological lie, but it is also immoral towards society as well as it is a reactionary reflex towards capitalisation of thought.

4.Composers, authors nor inventors need protection since the use of their work is not an attack, but contrarywise it rather constitutes an honour.

5.Regardless any ideological considerations , the further development of new technologies will make the idea of copyright completely anachronistic and obsolete. Copyright protection will reveal itself to be just inefficient.

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Si je me fais installer une toilette avec chasse-eau par un plombier, il parrait tout a fait justifié que je paye le plombier pour son travail, si bien fait. Cependant personne n'a jamais songé a lui payer chaque fois qu'on tire la chasse. Le cas du compositeur ne devrait pas être différent.

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Wanneer ik een loodgieter vraag mij een WC met spoeling te komen installeren, dan lijkt het nogal evident dat ik de man betaal voor de gepresteerde arbeid en voor de gebruikte materialen. Niemand, denk ik, zou het ooit in zijn hoofd halen te overwegen die man te betalen, elke keer dat ik doorspoel en van zijn geleverde prestatie gebruik maak. Welnu, voor de komponist zijn er geen redenen zoiets anders aan te pakken. In het geval van uitvoerende musici - zelf reeds reproducenten van informatie - is het opkomen voor reproduktierechten op de uitvoering nog onzinniger. Vooreerst is tegen het eigen belang van de musici zelf aangezien het wezen van hun arbeid uit het musiceren bestaat en niet uit de reproduktie daarvan. Bovendien zou de aanvaarding van zulk reproduktierecht bij logische doortrekking moeten leiden tot de absurde aanvaarding van een reproduktierecht voor de uitvinders en producenten van de zuiver mechanische reproduceermachines (bandopnemers , cd's , luidsprekers)... Voor een arbeidsprestatie dient slechts eenmaal betaald te worden.

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As far as we know, the idea of copyright and the royalty-fees in connection to it, did not originate in the minds of composers nor creators at all! Protection of copyright entered our law-systems only under pressure of publishers and replaced their former privileges to print and to sell books. Therefore the idea of copyright cannot be traced back any further than up to the moment of the invention of the printing press with Gutenberg. Even if the idea of individual authorship and moral rights with regard to intellectual property goes back on the french revolution, it should be said, as to musical composition, that all copyright regulations date back only from the second half of the nineteenth century. The time when our music culture took a turn towards historicism.

Concert life at that time just achieved independence from contemporary music production and concentrated merely on reproduction of so called classic music from the past. Only commercial, i.e. mass-consumption oriented new music (Strauss-walzes, the real origin of pop-music) was really in demand. The majority of academically schooled composers became sort of superfluous and thus felt a lot of social frustration. Nobody was in need of their music and thus, economically speaking, their music was (and still is) absolutely worthless, since out of demand. Organisations such as Sabam here in Belgium, were not founded to help out poor composers, but only to secure them a place in a capitalist economical system: to give them some psychological feel of being valuable. It is thus very well explainable why those organisations where founded by probably the worst of those days composers, and... why still today they are led by the worst and most academic amongst them. But, what they have done in fact, was nothing else than copying the idea of copyright protection from the publishers, but without understanding the very basis of the system. Publishers in fact used and needed copyright protection in order to protect their investment. Composers at the other hand do not usually invest anything but cheap ink and musicpaper.

However, I am not going to annoy you all with historical facts and details, but the only reason why I am raising these few points is to show that the underlying motivation to the legislation of such a thing as copyright was nothing else than the protection against competition of the publishers material production. The publisher, before printing, had to do a for that time rather substantial investment, and he did'nt like the risk of someone else producing the same book - cheaper - in fear of major financial losses. He didn't protect the contents of the book, but merely used the criterium of the contents as a way of protecting his material production and financial investment. One can consider such an attitude to be clearly in contradiction with liberal economic theory. Information in the second half of the nineteenth century still was quite strongly bound to its medium, to its material carrier. As a parenthesis, allow me to remark that the first books printed in large numbers were actually bibles, wherefore nobody could really claim any form of copyright anyway! One thought of it being quite evident, the Holy Word going round. And, as a second remark, of course also before printing the practice of copying was widely in use, and nobody ever made a problem with regard to the "property of the contents" . Every copy - a manuscript in itself - was a new commissioned product and that product was owned by the one who payed for it. In every case, the notion of content was entirely unrelated to the economical value of the manuscript. The labour of copying - by hand - was what was payed for. Furthermore, in the case of "original" work, the new work was either a commission in some way (of a publisher, a monastery, a government, an art collector, an institution...) or a normal result of a given job situation (as in the case of professional researchers in service of an institution, university, conservatory etc...), or else, it could also be a new work under the personal initiative of the writer. In the first case the work was of course payed for by the commisioner or the employer, whereas in the second case, no claims for remuneration could of course be made.

Up to the beginning of the 19th century, this procedure sounded - and so it still sounds to me - quite fair. Things have changed from the second half of that century on, where the first associations of authors and inventors were founded in an attempt to protect the economy against its own and most beautiful and democratising consequences: technology. And here we enter the level of the philosophical debate of the matter, since this paradox can only be solved by careful analysis of the different concepts used. So, let's first have a brief look at the notion of 'information', and let's define information broadly as a set of perceivable forms of matter or energy (form in space or form in time, as in the case of music). As such any form is transferable to any material or energetic substrate or carrier. This is a logical consequence of the defined notion of information itself. It seems extremely evident when we apply it to such things as knowledge: it simply means that I can tell you something I know, that I can also write it down, record it on a cassette or store it as a sequence of bytes in a computer. The basic property of information seems to be that its transfer and multiplication is possible without taking away anything from the source. When I tell you something, I don't lose anything from what I'm telling you. I just lose some salliva, some energy etc...

This entails that information cannot be owned for very intrinsic reasons. Property after all, is something you can lose. If you can't lose something you can't consider it to be your property neither. Thus the whole notion of intellectual property, property of ideas, appears to be nonsensical, and , not for ideological reasons but logically so. Its merely a bad metaphor. Secondly, as information is not a product and an object of possession itself, it cannot be considered to have been produced neither. The notion of production can be sensefully applied only to the substrates and the labour put into shaping them. This means clearly that thinking is not producing. An idea is not a product. A score is, speach is, just as making (and I mean, playing) music is the result of a real production. Now of course, it may be true that it is quite impossible to communicate ideas, or information in general, without producing shaped substrates, but still the distinction remains fully correct.

Knowledge is not a product nor is it produced. Knowledge and memory are simply properties of collective systems necessary for their survival in an steadily changing environment. I say clearly collective for transferability characterises information and for the fact that this implies a social context. Knowledge and information in the broadest sense therefore is a capacity of a system and its transferability is even a criterium for its being knowledge! If society takes care of its members' knowledge, by organising schools and such more..., it does so because only doing so it has a chance to increase its survival and developmental chances as a society. The members do not own this knowledge, but they share it, change it, contribute to it, examine it, recombine it, transform it and... can only give it back (i.e. let it know) to society. Nobody doubts this reasoning as long as we apply it for instance to the discovery of physical laws. Who would say that Einstein owned the general relativity theory? Or stronger, who would find it logical to pay a fee to Einstein (or his heritagers) everytime "his" knowledge would be used for something? Where, but more important, why do our institutions draw a line of calling something property or not? There is absolutely no intrinsic difference as to the nature of information in the case of a physical law, a technical idea to solve a problem, an argument, or an expressive piece of music! Therefore, any legal limitation on the reproducibility of information is an infringe on the proper character of information. It is an epistemological lie! Moreover, it is purely immoral towards society. So far it should be clear that I support the idea that an effort - labour - should be payed for only once. More so, if an effort is done without anyone asking for it, it should be clear that that effort should not necessarily lead to a remuneration whatsever: it becomes a leisure activity. As to music, we can distinguish both cases very clearly:
(i) Either a composer gets a commision for a piece, in which case he also gets a remuneration for the writing. There is no problem, the author is simply a "professional". His labour is payed for. No further royalties should be payed to him, regardless the number of performances the piece eventually gets.
(ii) Or else, the author takes the initiative to the creation of a work. In this case he becomes an "amateur" - and I do not have any negative associations with this term whatsever -, just as those who are helping in the Red Cross, collecting stamps, playing chess, or perform any kind of hobby. It seems logical that he does not get payed automatically, since his effort was not requested at all.

Consequently, to me the idea of a composer, author... as a 'free' profession is pure madness. In the margins of this all, I could of course also remark, closer to the everyday practice amongst the vast majority of new music composers, that they generally compose within the time they are already payed for by our social institutions: radio-stations, music schools, universities etc..., or else they are on welfare, social security or such more. If these composers claim and get copyright royalties I would not even hesitate a moment accusing them of theft.

Yet another, more practical question one could ask with regard to the corruption of the royalty system, is related to the object of protection itself: the information and the properties characterising it one would consider protectable. Speaking of music for instance, traditionally melodies were considered to be the criterium for deciding whether one piece of music was different than another. Since almost a full century now, virtually all possible melodies have been written and one could question whether melody is even a criterium. Are two pieces of music on the same order of notes different? Why not protect instrumentation for instance, or, as would be most appropriate for most rock music, the 'sound' as such. A full analysis along these lines must lead to the unavoidable conclusion that those aspects of music that are probably the most 'original' and typical are not quantifiable, and thus cannot lead to any kind of formal and non-arbitrary legal protection.

Within the last decennia, the whole paradoxical issue of copyright became really something enjoyably problematic. I think that it will become even more problematic up to the moment that it will collapse. Since the idea of copyright is based on the false assumption that information is a product, it will reveal to be auto-destructive. Moreso, it will destruct itself relatively fast: recently our technology made reproduction not only possible, but also accessible to almost everybody at little effort, and the prices of copying (in any medium...) sink everyday. This is a natural consequence of the transferability of information and technological progress. A single CD-rom disk can nowadays contain many whole books for only a fraction of the price, and contrary to the photocopy-procedure, which is still quite time-consuming, here dubbing takes only a fraction of a minute, and this medium has the great advantage of ease of transfer everywhere in the world: only use a modem or better, a fast broadband internet connection! All this beautiful technology made the "music publishers" - the social group that originated the copyright idea - completely anachronistic. Publishing in the traditional way is nowadays only done in two cases:
1. When the published product, by mass production, can be brought on the market at a lower or equal price than the price of a 'pirate' copy. This is the case of our newspapers, many paperbacks and such more...;
2. When it may serve the purpose of a anachronistic honoration of an author (generally, the publisher only starts working, when can he be certain to get some subsidy in some form: guaranteed clients, such as libraries, universities ,orchestras). In most of these last cases, the reason for the publishing is not so much related to the contents of the work, but rather to the 'product' character of the publication itself: it becomes a bibliophile-edition. This of course, is material production, and copies here do indeed lack the prestigiuous values associated with the owning of these publications.

Applied to the realms of new music, we will see the publishing companies disappear entirely within the next generation. Already now it is true that photocopies of scores are always cheaper then the originals, and consequently, most new music is played from copies... As to music in its quot;realized form", we see very similar things happening: so called "pirates" appear everywere, and I find it awfully hard to call them pirates, since dubbing here is just an act of normal common sense and economical behaviour. If publishers want to change this situation, they can only do it sensefully, by lowering the prices of the originals below those of the copy, which is, in the case of records for instance quite possible. The only other alternative they would have, and some actually take this consequence, is to market a product with a high product value (e.g. expensive and complicated covers), but this reflects a change from publishing to producing. For video, of course, the same phenomena are true, and in the last decennium of the 20th century we saw it already happening for digital audio: for instance the recordable CD's as well as the DAT recorders, MD disks, MP3 formats and players. The 'royalty maffia' will of course try to fight this, but they will always be late, since whenever they've succeeded in forcing laws, technology will come up with another not yet covered technique of reproduction and distribution. Consequently I do not only see copyright disappear from our socio-economic system, since its paradoxical position will reveal itself as entirely untenable, but also do I think this to be a very favourable thing for our music culture and for culture in general.

At a very first sight it may appear sort of strange for a music maker as I am to defend a thesis against his own (financial) interests. But, defending the case of copyright on such low and muddy grounds would be purely childish since the long-term advantages, particularly for "serious new music" are huge. Therefore, let's look for a moment to what would happen to the commercial music industry if royalties on copyright grounds would cease to exist: very probably the whole industry would collapse pretty fast and would become, in order to maintain some market position, even more boring than ever... going into real massive mass production. Small scale music production everywhere would flourish and only as long as the participants are interested ("no labour, no money" principle!), so many more musicians would get chances to play more musics. Nobody would make music only for the royalties anymore - no more top hits - since that ridiculous hope would have no more grounds. Reproduction of music would no longer be in the financial interest of the record producer, so he would to a much lesser extend put media under pressure to program it. Also, radio and T.V. would become substantially cheaper, what would render regional TV and radio a lot more possible and interesting. Also, in the realm of technology, inventions would improve a lot faster than now and show economically an ever steeper price evolution. Inventors and factories could no longer sit on their patents and by doing so, slowing down the otherwise very natural process of improvement and further development. Computer software would be free or else, customer-specific. The nature and the possibility of the secret of course remains, although such could only be for a limited period of time, since all codes are in principle breakable...

But, what interest or motivation would the author or inventor have in such a royalty-less society? First of all it should be noted that his value as an author remains as before: his value would still be higher, the more of his ideas get accepted and applied or performed in a society. Such would of course increase his social status, for, the refusal of royalties and of the economical consequences of copyrights does not lead to a denial of authorship. The author, or the collective of authors in some cases, will still be the origin, source and cause of new information, and should be given credit. He does not become anonymous, since for control and improvement reasons it is always better to have the possibility to trace back the origin of information. Copyright would end up being nothing more than a matter of honour and prestige deserved by the author. Breaking these minimal copyright rules in this respect, would be nothing different then lying!

Now most law systems speak in terms of "the necessary protection of the author", but... who is attacking him ? If I choose to play someone's piece of music, then first of all I should know it (for instance by having a score). This means that the piece cannot be a secret. If it is not a secret, it must have been the author's wish to have it known to others. If I choose to let it know to more, what the hell could I be attacking the author??? Furthermore, this raises the question of control. Since at the end we would have no other alternatives than either some kind of 'Big Brother' watching you or no controls on information use whatsever. Who would suggest hiding spies in my bathroom to make sure I'm not whistling "The bridge over the river Kwai" with my window opened to my neighbour???

Dr.Godfried-Willem RAES

p/a Logos-Foundation

Kongostraat 35

B-9000 G E N T


e-mail :GodfriedWillem.Raes@logosfoundation.org

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first version : Stuttgart, 09.1985

revised : Ghent,02.1989 , Hilversum, 11.1994, Vermont 08.2001

Published by :
"Musiktexte", Koeln 1988 ( in German)
"Interface", Utrecht 1988 ( in English)
"Muzikon-kongresverslag", Gent 1988 (in English)
"Option-Magazine", Atlanta 1989
"Vidal", Den Bosch, 1991
"Aktief", Brussel, 2004 (in Dutch)
Presented at conferences and Colloquia in Madrid, Amsterdam, Hongkong, Sydney, Melbourne, New York , Banff , Sao Paulo , Salvador Bahia, Gent, Hilversum, Leuven, Antwerp, Brussels....

Dutch version (updated 24.10.2007)

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Last update: 2010-06-28