"The Complete Songwriter/Producer : An Antidote to Industry Short-termism"
Jonathan Little, Music Business Lecturer, Surrey, UK
This article considers some of the consequences of the present-day short-termism of major record labels and publishers, who, in all fairness, are beset by increasingly substantial development and marketing costs whenever they sign new talent. Technology has, once again, enabled several traditionally separate functions to be undertaken by a single individual, so that the truly competent songwriter/producer, for instance, can now potentially do everything from creating new sounds to mastering a demo recording - or even producing the final "master" recording itself. But the demands on such individuals, or songwriting teams, are clearly heavier than ever. UK-based songwriters, Tim Hawes and Pete Kirtley - who are currently writing for the TV-generated pop group Hear'Say - provide a useful case study in this respect.

Due to the fact that the industry is expecting more and more within an ever-decreasing interval of time, a comprehensive industry-linked musical education embracing composition, performance, technology and business studies may therefore be the way forward for our best and brightest students. The era of the single musical specialism seems to be passing - with the truly successful and long-lived composer-musicians of tomorrow likely to be "multiple specialists" within their chosen field.



THE successful modern songwriter needs to be so much more than a simple tunesmith. Where once the Jerome Kerns or Irving Berlins of this world could present their publisher with the mere outline of their latest number, hammered out on a much used and abused upright piano, today a whole string of complex technological and business phases will probably have elapsed before most serious songwriters would dare approach their publisher, or indeed hand a song over to a record company. As a vital complement to the traditional craft of composition, production and music business skills are also becoming a necessity in an environment where record companies are increasingly demanding that songwriters present them with a product so polished that it could easily go straight to market. The pressure to drive down the now substantial front-end costs which record companies must bear has largely led to this state of affairs. Gone, therefore, are the days when many publishers and record companies, will consider investing a substantial amount of time, effort and lucre in developing many of their newly-signed songwriters - and indeed in nurturing most of their performers, too.

The recent TV craze aimed at searching for "instant popstars" (through much-hyped national talent quests) is correspondingly symptomatic of the desire to discover stars who no longer require intensive further training before their career can be launched. Crucially, from a record company's point of view, such instant stars already have serious media exposure and a solid fan-base before they even cross the threshold of a recording studio to cut their first disk. While a singer with the longevity of Cliff Richard may lament this state of affairs - arguing that such a transient and mercenary philosophy to cultivating new talent risks premature performer "burnout" - this latest corporate attitude to finding and exploiting the talent of singers and songwriters is now so widespread that it seems unlikely to change in the foreseeable future. In an industry already infamous for its fickle treatment of performers and composers, any new device that helps record companies acquire product with minimal up-front costs is eagerly embraced.

A further manifestation of this phenomenon can be seen in the growing tendency by the "Big Five" multinational music corporations towards encouraging the licensing and mass selling of the musical product of small independent labels, or else endlessly exploiting back catalogue, or inventing novel and frequently implausible reasons for assembling compilation albums - often in preference to developing new talent. In such situations, independent labels become the most important A&R (artist and repertoire) sources for the five corporate giants. The public themselves are becoming unwitting conspirators in this general trend, too. Of 2,474 respondents to a recent Billboard magazine poll, nearly 40% reported that with remastering to improve sound quality, as well as bonus tracks and more extensive liner notes, they see it as good value to purchase an updated version of an album they already own.1 By sticking to a tried and true musical product, this makes it less likely that the growing number of older and more musically conservative customers, in developed countries at least - such as the USA and Britain - will risk investing in any new product sung by what they see as "fly by night" popstars. A vicious circle of conservatism is then perpetuated by major record companies, who insist that by repackaging old favourites they are merely delivering what their customers want. To compensate, the battle for the youth market is becoming characterised by the extraordinarily frenzied marketing of any performer or performers able to generate a sudden and large following. Such short-termism is nothing new, of course - it has been an increasing trend in the pop and general music market for more than two decades. Now, however, it does seem to be reaching an unsustainable critical mass. UK pop songwriter Alison Clarkson (formerly known as early 90s performer Betty Boo) has been outspoken in her condemnation of hurriedly formed, audition-based "disposable" pop groups, arguing that such formulaic approaches to music making will ultimately do irreparable damage to the industry. If this trend continues unabated, Clarkson fears that audiences will become very cynical about pop talent, and that natural musical evolution could be restricted through excessive "product" control. 2

A fine case study of this whole phenomenon is provided by the "manufactured" British group, Hear'Say, and one of their leading songwriting teams up to now, Tim Hawes and Pete Kirtley - presently working on the group's second album. Hear'Say are a group of three girls and two boys - all singers (today with appropriately choreographed dance routines for each of their numbers) - who were the successful finalists in a TV series called Popstars, a show aimed at putting together a new, mixed girl/boy band, from the best contestants nationwide.3 Even the producers of the prime-time television series could not have predicted the enormous national success that their TV show would have, which has subsequently led to eponymous imitators as far afield as Denmark (generating girl band Music Metals) and the US (generating girl band Eden?s Crush and rival boy band O-Town), as well as imitators in several other countries worldwide, including Germany (who assembled an all-girl trio in the mould of US chart songstresses Destiny?s Child, or the UK?s Atomic Kitten). The Popstars format originated, in fact, in Australia (delivering up girl band Bardot), but it was the astonishing appeal of the UK version which proved the vital catalyst in demonstrating that the format could be easily transformed into a viable, standardised, global product. And the particular strength of this product, moreover, is that it just keeps generating more and more product - in the form both of imitators and of marketing spin-offs derived from each prefabricated group?s music and image. Not surprisingly, then, there has also been another follow-up show in Britain aimed at identifying a new solo artist, entitled Pop Idol.

As a group, Britain?s Hear'Say have the envious reputation of having achieved an instant debut No.1 hit single, entitled "Pure and Simple" (on its 8th remix at the time of writing, and also to appear on album No.2). Indeed, such was the media frenzy created by the TV show Popstars, that their young fans were primed well in advance to help the ready-made pop act set a UK singles chart record for the biggest-selling first week sales tally by a new artist.4




Significantly, in addition to selling records, the group has made a huge amount of money (in an extraordinarily short time), from merchandising - the marketing of products to which they are linked. In short, merchandising has - perhaps appropriately - been the real bonanza for these manufactured musical "frontmen", the creation of TV and record company executives. On 3rd October 2001, it was reported in London?s Evening Standard newspaper that at least thirty companies had already made licensing deals with Hear'Say by the time the Popstars TV series came to its conclusion in February. The lesson is clear: gather revenue any way you can, while you can - in case the fad doesn't last. The band's record label, Polydor (owned by Universal), has easily netted in excess of ?100 million (US$150 million) from merchandising deals - leaving aside the further income they have derived from singles, albums, concert tickets and airplay. A Polydor spokesman put it this way:

Merchandising and endorsement deals have always been an important part of the music business, especially the pop music business. Hear'Say is an extremely strong brand which a lot of companies want to come on board with.5

The band members themselves have also managed to do quite well, so far allegedly earning around ?100,000 a month from such merchandising deals (and, of course, significant further revenue from their first national tour, their two hit singles - "Pure and Simple" and "The Way To Your Love" - their debut album, Popstars, and their ubiquitous media and public appearances). Guided by their manager, Hear'Say have agreed to have their name linked to everything from cakes to watches, as well as endorsing products by companies such as car makers Peugeot, and even the biggest multinational software producer of them all, Microsoft.



Before Hear'Say came along, Tim Hawes and Pete Kirtley were successful mainstream pop songwriters - whether composing individually or as a team - though their early years in the business had certainly been a struggle, with some hard lessons learned along the way. They had latterly written for several established UK Top 40 acts, including The Honeyz, 5ive, Stephen Gately, The Spice Girls and Girl Thing, yet it was only a few months ago that they came to form their own production company, Jiant Productions.6 They had to set up this company in a hurry in response to the fact that they had reached a stage where they were working with major labels on a regular basis, and these record companies made it clear that they prefer to deal with people who can supply the whole songwriting and production package. As US record producer Kashif pointed out about the "decline of the songwriter" in his 1996 book, Everything You'd Better Know About The Record Industry, Tim and Pete were effectively responding in business terms to a trend which had become recognisable just a few years earlier. "In the music industry of the 1990s," Kashif argued, "the role of the songwriter who just writes songs and doesn?t produce or is not an artist is diminishing rapidly."7 Indeed, Tim and Pete not only write songs and produce records now, but they also do nearly all of the administration (the business aspect), as they have no employees. Successful they may be today, but they are working hard for it - seemingly eight days a week, as the Beatles might have put it.

Fortuitously, in June 2001, Jiant Productions took up an offer to base themselves in The Academy of Contemporary Music's Rodboro Buildings in Guildford, outside London, from where, today, they run most of their recording sessions. The Academy of Contemporary Music (ACM) is a popular music education institution, running performance, production and music business courses, including a two-year intensive degree course integrating all three streams. It is the vision of the Principal and Founder of the Academy, Phil Brookes, to encourage more in-house industry links - such as that with Jiant Productions - for the mutual benefit of both students and industry professionals. (Such harmonious industry-education integration is a long-held government ideal, but one which has rarely, if ever, been fully realised).

During talks to the students given by Tim Hawes and Pete Kirtley in September 2001, it became clear that the practice of professional songwriting differs considerably from student expectations of what the day-to-day craft of modern songwriting must be like. This fact was confirmed very recently, for example, when the songwriting duo held auditions to take on an "apprentice", and, ironically, had difficulty finding more than a handful of novice first-year degree students with a detailed understanding of how songs are composed and produced for the contemporary "pop" scene. The need for such industry-education partnerships was never more strikingly demonstrated. Students may certainly be trained well, even in vocational subjects, but few, it would seem, are regularly exposed to current industry practice at the majority of educational institutions.

Something that students have clearly learned from their interaction with Tim Hawes and Pete Kirtley, however, is that songwriting remains 1% inspiration and 99% perspiration. The songwriters readily admit that it took them three minutes to compose the outline of "Pure and Simple" (the biggest-selling UK single of the year so far), but three months to put together the track to the satisfaction of record company, Polydor. In their lecture to students delivered during the first week of the ACM degree course, the two songwriters described how their own workload has not been lessened by modern industry structures. While music publishers may certainly be fulfilling their traditional role of helping to place the duo's songs with potential performers, the songwriters themselves must nevertheless also spend a great deal of time networking with anyone looking for songs. They pointed out that often, when they could be composing, they were on the phone trying to secure placement of their songs, either off the back of contacts suggested by publishers, or, more frequently, through the songwriters' own vital and extensive network of contacts (in addition to their own managers? efforts, too).

Completely unlike the traditional notion of a songwriting partnership, where one member specialises in lyrics, and the other in music, this modern songwriting duo fulfils each of the roles equally well. They then criticise and try to improve upon each other's contributions - whether they be lyrical, or musical - until, as a team, they feel satisfied with the final product. Tim Hawes and Pete Kirtley, are, therefore, the complete antithesis of such famous collaborations as those between Bernie Taupin and Elton John, or Tim Rice and Andrew Lloyd-Webber - teams who, almost exclusively, stick to their respective roles as lyricist or composer. While reluctant to talk in too much detail about the mysterious art of song composition, Tim Hawes and Pete Kirtley admit that

While our thought processes and musical styles as songwriters are very different, we each bring something unique to the process. We've learnt the need for compromise, and together we seem to produce better material than we do separately. Not that one writes the lyrics, one the music - we want to do all parts of the process, and hammer songs out that way.8

Both Tim and Pete started out in the music business as performers, and then decided that they would prefer to be songwriters. It was Tim Hawes' manager (also the manager of Hear'Say) who introduced him to Pete Kirtley, which is how the partnership was born. In the early days, Tim had written three songs for the Spice Girls, and he got his initial publishing deal through the Spice Girls association. This proved to be Tim's first real "rung on the ladder". In their first incarnation, these now world-famous representatives of "girl power" - the ultimate in manufactured pop - were known by the name Touch (i.e., you can look but can?t touch!). It was while in Woking-based Trinity Studios in 1994, in the midst of co-writing and recording the song "Sugar and Spice" with the group, that Tim pointed out just what spicy girls they really were - and the name stuck. Tim confides that the major reason his own early bands (and songs) didn't happen is because he didn't then appreciate the need for networking.



Speaking about contemporary pop songwriting, the songwriting duo stress that record companies require you to write very specifically to a brief.9 In response, they'll first get a "vibe" about a potential new song, establish the groove of a backing track, then try to "discover" the chorus - perhaps feeding a singer the lines - and so it builds up. But if you're a pop songwriter, there's very little scope to explore any new genre, or any strikingly new sound that the record company hasn't heard before. 10 If this seems ironic in a so-called creative profession, then the news gets worse. Once a brief comes in, the deadlines these days are so extraordinarily tight, that the songwriter must deliver on demand in a matter of days - and sometimes even hours. Three hours, for example, is not unheard of in a studio context. Clearly, today's record companies wait for no man.

On Hear'Say's second album, the songwriting competition will also be more fierce. Even though Tim Hawes and Pete Kirtley have been asked to make a significant contribution to the album, other top writers will join the fray, so that Polydor will end up with about 60 solidly-crafted pop tracks to choose from for their forthcoming 12-track album. It's likely that Tim and Pete will end up contributing about 3 songs, with 9 coming from a variety of other sources. And it's not always friendly competition, either. With big money now at stake, fortunes will turn on musical politics and finance. With large future royalties as the bait, managers, singers and publishers all want a slice of the action. Ultimately, each one of the album's songwriters will end up being the least recognised among industry "stars", and, moreover, these songwriters often tend to feel relatively badly treated in comparison to many other music industry personnel - largely due to such lack of recognition.


So for most professional songwriter/producers, even those with a huge amount of specialist knowledge in a host of musical, technological and business areas, the industry remains tough, and Lady Luck often elusive. Guy Fletcher, Chairman of the British Academy of Composers and Songwriters (BACS), puts it bluntly:

Most writers who make it into the charts have more than paid their dues with months or years of disappointment and sometimes downright failure.11

The hit track "Pure and Simple", for instance, was written (in outline) two years ago in Tim Hawes' garage, and initially it was rejected by some big names. But for a twist of fate, the public may never even have heard of the track today. While "Pure and Simple" is, undoubtedly, a classically crafted pop song, few would put the phenomenal sales of the single down to the songwriters' (or indeed the performers') talent alone. The huge success of this single represents nothing less than the triumph of marketing over musical raw material. As Mark Fishlock, Chairman of the British Academy's Media Executive Committee, rather facetiously remarks of the new industry extreme:

These days the road to stardom is laid by someone with an HND [Higher National Diploma] in marketing, where your songs are as likely to be chosen for you as your haircut or the width of your flares.12

With repeated free promotion over several weeks on prime-time British national television, any decent single couldn't really have failed in today's "everyone can be a pop star for 15 minutes" atmosphere. Such marketing pressure also means that the number of successful pop bands formed entirely by themselves is today declining in favour of production-line pop - where a chosen few artists spend all day doing interviews, touring, performing and recording, while their alter-egos, the songwriters, spend all day writing, producing, learning new technical tricks and conducting their "business".

Undoubtedly, Tim Hawes and Pete Kirtley will write better songs than "Pure and Simple" (as will other similarly competent songwriters) but it's worth remembering that many such songs - often on the whim of a record company executive - will never see the light of day. Alison Clarkson, who also collaborated on "Pure and Simple", today seems a little bitter that she hasn?t been asked to contribute more songs for million-sellers Hear?Say, and in a recent interview goes so far as to claim that the song selection system is now "very crooked". She argues that, as owners of their own music publishing companies, a "good handful of really high-powered executives" often reject songs not penned by songwriters already signed to their own companies. 13

Clearly, the next generation of successful songwriters will need to learn as many industry-relevant specialist skills as possible. Past lessons show that they will also have to network constantly, be aware of the pitfalls of financial "politics", and, of course, they should keep persisting long after the other 99% have given up and gone home.



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1 Report carried in the Billboard.com Daily Music Update for 9th November, 2001.
2 In Alexis Petridis, "The Power Behind Pop", The Guardian, Friday Review (23rd November, 2001). Within this article on "who?s writing for whom", Petridis gives examples to illustrate the fact that many of the biggest UK chart successes of 2001 were penned by ex-artists who now largely rely on "manufactured" songsters in order to sell their product to very young target audiences. Interestingly, the decline of investment by major record companies in guitar-based bands continues alongside the rise of management-assembled pop groups, although some industry pundits believe that guitar bands have now reached their nadir, and may increase in number in the coming years.
3 The five members of the group are Noel Sullivan, Danny Foster, Kym Marsh, Suzanne Shaw and Myleene Klass.
4 The single "Pure and Simple", written by Tim Hawes, Pete Kirtley and Alison Clarkson, sold 550,000 copies in its British debut week. 160,000 units alone were shifted on the first day of release. Clarkson was disheartened by the fact that she never met Hear?Say, or indeed had any input into how the song could best be shaped for the group. By contrast, when she was a performer/songwriter in her own right in the late 80s and early 90s, she points out that she was consulted by everyone from video directors to art designers (see fn.2).
5 Quoted in Richard Simpson, "How Hear'Say hype is making them millions", Evening Standard (3rd October, 2001), 22.
6 Such a production company could be established as a limited liability company, or as a sole trader.
7 Kashif, with contributions from Gary Greenberg, Everything You'd Better Know About The Music Industry (Venice, CA [USA]: Brooklyn Boy Books, 1996), p.52.
8 Pete Kirtley, informal lecture on songwriting delivered at the Academy of Contemporary Music, Guildford (UK), 13th September, 2001.
9 Record companies today insist that they want a certain "sound" - and it is the songwriters that can deliver precisely what such record companies want that will gain placement of their songs. Record companies usually circulate songwriting briefs on a monthly basis, describing their requirements in terms of asking writers to forward tracks "in the style of" a given past hit, or even a blending of two or three recent hot tracks. The descriptions in these briefs are sometimes so outrageous and unclear as to be laughable.
10 At a time when composers are less and less willing to be boxed into narrow musical categories - with all sorts of musical cross-over now possible - record companies seem to be adopting an opposite tack.
11 Quoted in The Works [The magazine of the British Academy of Composers and Songwriters] (London: BACS), Issue 8 (2001), 15.
12 In The Works (London: BACS), Issue 8 (2001), 10.
13 In Alexis Petridis, "The Power Behind Pop", The Guardian, Friday Review (23rd November, 2001).




I. Introduction

AT the beginning of the 21st century, copyright law and its application to the music industry is in a transitional state. Over the past several years, copyright has received much more public attention than ever before due to lawsuits against companies such as Napster and MP3.com. Unfortunately, much of the media coverage has been biased and inaccurate, helping to create a public view of copyright as a tool of the entertainment industries employed to maintain control of music and other creative works. Although it has sometimes been used as such, it was not intended for such purposes, and has more often than not fulfilled its intended purpose of providing incentives to authors to create new works of art, while assuring public access to those works.

Adversaries of copyright law tend to oversimplify the issues that copyright law seeks to resolve. Using slogans such as "information wants to be free" and "the genie is out of the bottle," and relying on inaccurate notions of "free speech", "fair use", and "file sharing", these critics avoid the difficult balance that copyright law attempts to strike between providing access to creative works while providing authors with incentives to create such works. Instead, they attempt to persuade the courts, the legislature and the public that they should be allowed to use creative works without having to pay any compensation to the owners and creators of these works.


Some people believe that we have reached the end of the copyright era, and that intellectual property should be free to all in the Internet age. Some of these "information wants to be free" proponents even believe that they are being altruistic by making copyrighted works available to others for free. According to John Perry Barlow, a former lyricist for the Grateful Dead and current outspoken copyright critic:

Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum (which, in fact, rather resembles what is being attempted here). We will need to develop an entirely new set of methods as befits this entirely new set of circumstances.1

Barlow?s analogy ignores the fact that copyright has always been an evolving body of law. Just because expression can be stored in digitized form does not mean that copyright has outlived its usefulness. If all laws were thrown out when any new set of circumstances challenged their application, society would be in a constant state of chaos. Certainly, there are new circumstances which copyright law must adapt to, but copyright has been adapting since its origins over two centuries ago, and to think that any new technology, no matter how innovative it may be, automatically eliminates copyright?s necessity or applicability, seems extremely short-sighted.



It is important to realize that the theft of intellectual property is not a victimless crime. The victims include not only authors, but also producers (record companies, publishers and all the individuals who work for them), and the public, too, since losses due to piracy are generally passed on to consumers in the form of higher prices. For example, when you buy a compact disc at a record store, part of the purchase price covers costs that the record company incurs in an attempt to prevent and fight piracy, and these costs could be argued to have risen dramatically in recent years, in large part due to Internet piracy.

Although the recording industry has been criticized for the legal actions it has pursued against companies using new technologies to distribute copyrighted works, is it really so surprising that an industry has tried to protect the right to control the products which it invests millions of dollars to produce and market? Is there any industry that would sit idly by while new companies attempted to build businesses by freely appropriating their products? This is essentially what some Internet-based businesses such as Napster have tried to do. If it became possible to steal cars easily because someone invented a device which made it possible to unlock and start cars without breaking into them, would the auto industry simply allow people to do so? Just as automobile manufacturers are not likely to give up their main assets (cars), the music industry is not willing to give up its main assets (copyrights) without a serious fight. So far, they are winning the fight using a mixture of legal and business tactics. The legal tactics have included filing lawsuits against companies such as Napster and MP3.com, while the business tactics have included buying out the few Internet music companies that have managed to survive the drastic devaluation in their stock prices which took place over the past year.2

The Internet is merely a relatively new medium to which existing laws such as copyright must be applied. Music in digital form which is copied and distributed using computers and the Internet is protected by the same provisions of copyright law that apply to music in more traditional formats - such as compact discs and cassettes - as well as some amendments to copyright law dealing specifically with digital music. The U.S. Copyright Act specifically recognizes that technological advances will alter the mediums in which works are fixed in tangible form, and the Copyright Act was specifically intended to include works fixed in digital form in such media as computer files, compact discs, etc..3 According to the judge who decided one of the first cases involving the digital distribution of music over the Internet:

Defendant's copyright infringement was clear, and the mere fact that it was clothed in the exotic webbing of the Internet does not disguise its illegality.4

Currently, many people and organizations are proposing amendments to copyright law. Copyright owners are attempting to convince the U.S. Congress that greater protection is required, while new industries that use copyrighted works are attempting to limit copyright law and obtain exemptions favorable to them. Some copyright scholars are also worried that some of the recent amendments to copyright law have gone too far and unfairly limit the rights of individuals to build upon existing works, thereby stifling rather than promoting creativity. In the author?s opinion, passing legislation in response to every technological change that arises is bound to be a self-defeating prophecy. Although some amendments to copyright law will be required, too much legislation (especially as the result of lobbying by affected industries) results in the creation of over-complicated, impractical laws, many of which will become obsolete as technology continues to evolve.



II. New Technologies

Technological developments have always provided a challenge to copyright law. In fact, copyright law initially developed as a response to the invention of the printing press. Innovations in technology have led to new ways to reproduce and distribute copyrighted works and have consistently expanded the boundaries of copyright.

New technologies can provide both threats and opportunities for copyright owners. Initially, the threats must be dealt with, but, in the long run, copyright owners have benefited greatly from technological advances. After the invention of the photocopy machine, the print publishing industry worried that its business would be ruined by people photocopying rather than buying print publications. However, many books, newspapers and magazines continue to be sold. Similarly, the motion picture industry originally believed that the VCR would destroy the movie business. In fact, people continue to pay to watch movies in theaters, while selling videocassettes to rental stores has provided motion picture companies with a substantial additional revenue stream.

The music industry has also been no stranger to technological advances. Since Thomas Edison invented the gramophone in 1877, advances in recording technology have challenged copyright law and forced it to adapt. The gramophone was followed by inventions such as the phonograph, eight-track, analog cassette, compact disc, and digital audiotape. In the early years of radio, many felt that this new broadcasting medium would destroy the record business. Several decades later, some worried that video would supplant radio.

It is important to note that none of the new technologies mentioned above have destroyed their respective industries. In fact, some - such as the VCR and the compact disc - have actually rejuvenated their industries, bringing in new sources of revenues. However, the concern of the various entertainment industries when a major new technology is introduced is not totally misplaced. The mistake is that the concern should be over the use of technology rather than technology itself. No technology is inherently bad. Instead, it is the illegal use of technology by individuals which poses the real threat to copyrighted works, and the industries built upon copyright ownership.

At the dawn of the 21st century, the newest challenge to copyright and the music industry is actually the combination of two technologies - digital technology and the Internet. These technologies are changing the way people listen to music. Through these technologies, copyrighted works are much more easily accessible than anytime in the past. This also means that copyrighted works can be much more easily infringed than anytime in the past.

A. Digital Technology

Digital technology involves converting information such as sounds into mathematical bits which are represented by a series of 0s and 1s. With analog recording, each successive copy results in a decrease in sound quality. The main advantage of digital audio technology is that there is virtually no loss of sound quality regardless of how many generations of copies are made. Additionally, digitization provides an easy and inexpensive way to reproduce and distribute an unlimited number of copies.

B. The Internet

The Internet is made up of a worldwide network of computers connected by telephone and cable lines. The Internet allows computers and their users to communicate with each other. Information is transmitted over the Internet in analog form through the use of modems. A modem converts digital information stored on a computer into analog form so that the information can be transmitted to another computer over phone or cable lines. The receiving computer?s modem converts the analog information back into digital form.



III. How Music Is Used on the Internet

IN order to understand how copyright law applies to the Internet, it is first necessary to examine how the copyright owner?s exclusive rights are exercised in the Internet medium. There are two main ways music is distributed over the Internet - streaming and digital downloading. Both of these technologies allow music to be transmitted over the Internet to any individual?s computer.

A. Streaming

Streaming technology allows for the continuous transmission of music over the Internet in real time, so that listeners hear the music as it is transmitted to them from a website. Streaming can be thought of as the Internet equivalent of radio broadcasting. No permanent copy of the music transmitted is made on the listener?s computer since the audio is merely "streaming" (or passing) through the computer on its way to a connected sound system. Many radio stations transmit their broadcasts over the Internet using streaming technology: a process known as "webcasting". One disadvantage of streaming is that the listener must be online to hear the music. Additionally, the music is usually of lesser sound quality than downloaded files, since it has to be heavily compressed in order to flow through typical modems. Many record companies use streaming technology to allow consumers to preview recordings and videos.

B. Digital Downloading

Digital downloading allows people to make (or download) copies of digital music files from websites. Downloaded files can be stored on a computer hard drive or other storage device, and played on demand.

(1) MP3 - The Latest Challenge

Traditionally, when audio files are copied to a computer hard drive, they take up a lot of memory. Consequently, audio files must be compressed in some manner in order to transmit and store them effectively. Compression involves taking digital data, such as a recording, and representing it with a smaller number of bits. Compression algorithms delete redundant parts of a digital file and parts of the file that are inaudible to the human ear. The result is a smaller or compressed file which reduces the amount of bandwidth and storage space needed. MPEG Layer 3, or simply MP3, is a compression format which reduces the size of digital audio files by a ratio of 11 to 1, without much loss of sound quality.5 Whereas a typical four minute music file in uncompressed format takes up about 40 megabytes of storage space, the same recording in MP3 format takes up only 3.5 megabytes. The MP3 compression format is not owned by anyone, and has become the most commonly used compression format for music files.

There are two ways you can obtain and store MP3 files. The first involves using a search engine to locate websites where MP3 files are located, and then downloading a file to your computer?s hard drive. You can afterwards play the MP3 file using software known as an MP3 player, which can be downloaded for free. Although some recordings are available for downloading in this manner, many of them have been posted illegally. It has been estimated that in the first six months of 1999, 3 billion MP3 files were downloaded from the Internet - equaling 17 million MP3s each day.6

You can also create MP3 files from compact discs. To do so, you must use a software program called a "ripper" which extracts music tracks from the compact disc while it is loaded in your computer CD-ROM drive. The extracted tracks can then be saved on your computer?s hard drive, and converted to MP3 format.

Once you have a music file stored on your computer hard drive in MP3 format, you can play the music using your computer (equipped with a sound card and speakers), or record it onto compact discs if you have a compact disc recorder (CD-R). You can make an infinite number of copies, which if made from a lawfully acquired file and used solely for your own personal use, is perfectly legal. However, you cannot legally give away, sell or upload copies to websites without the copyright owners? permission.

(2) The Legality of MP3

There is nothing inherently illegal about the MP3 compression format. However, it is often used illegally. Uploading and downloading an MP3 file containing a copyrighted work is legal when the copyright owner gives the uploader or downloader permission to do so. However, if you upload or download an MP3 file containing a copyrighted work without the copyright owner?s permission, you will generally be infringing the copyright owner?s exclusive rights.7

(3) The Music Industry?s Concern over MP3 and Internet Piracy

The use of MP3 software for the distribution of music has generated considerable fear in the music industry. Many individuals possess ripped MP3 files of their entire CD collections, and the trading of illegal MP3 files over the Internet has become rampant. Worsening the problem, more and more consumers are buying compact disc recorders, and many are using them to burn CDs of illegal MP3 files. Due to the compressed nature of the MP3 format, many more audio tracks can be recorded onto a single CD than the typical 10-12 tracks on commercially-released CDs.



IV. How Does Copyright Apply to the Internet?

ONE of the main problems for businesses attempting to offer music legally over the Internet is the complexity involved in licensing music. This can be a complicated process since most uses will involve two separate copyrighted works (a musical work and a sound recording) which are normally owned by different parties. Additionally, there are different rights and limitations on those rights applicable to musical works and sound recordings.

A. The Reproduction Right

Copyright owners of musical works and sound recordings have the exclusive right to reproduce or make copies of their works. The reproduction right is exercised continuously by Internet users, often without their even being aware of it. Whenever someone receives an e-mail or visits a website, a copy of the computer file accessed is made on the computer user?s hard drive. Reproduction occurs when a work is entered into a computer for more than a temporary period. For instance, a reproduction occurs in each of the following situations:8

A work is copied to a computer file, whether on the computer?s hard drive, a floppy disk, CD-ROM or other storage medium. This includes "ripping" an MP3 file from a compact disc.
A digitized file is uploaded from a computer to a website.
A digitized file is downloaded from a website.
One person?s computer is used to access a file on another computer. This process is commonly known as file-sharing, and is the basis for software programs such as Napster.
A file is transferred from one computer on a network to another.
If you operate a website which allows digital downloads of files containing copyrighted sound recordings and musical compositions, you need to obtain licenses from the copyright owners or their agents. Licenses to reproduce copyrighted sound recordings are obtained directly from the record company or artist which owns the sound recording. In some instances, independent artists may be willing to license the right to reproduce their sound recordings for free. For instance, MP3.com requires that all independent artists who make recordings available for download on their website give them the right to allow reproduction of the recordings without any payment to the artist. Record companies, on the other hand, are not usually willing to license the right to download their recordings for free since the only way they make money is by selling recordings. If a record company is willing to issue a license allowing you to make digital downloads of its recordings available, you will normally have to agree to pay a royalty to the record company for each download. However, many record companies will not issue licenses allowing their recordings to be distributed in MP3 format at all, since it is an insecure format which is often used for illegal copying.


In addition to the license for a sound recording, a license is also required for any copyrighted musical compositions contained on a sound recording. Licenses to reproduce musical compositions can be obtained either from the songwriter or publisher who owns them, or a licensing agent such as The Harry Fox Agency - which represents many music publishers in the United States.

B. The Public Performance Right

A copyright owner has the exclusive right to perform publicly a copyrighted work, directly or through a means of communication or transmission. The transmission of music over the Internet can constitute a public performance. When you listen to music over the Internet, the music is certainly being performed, but it may not seem that the performance is a "public" one. However, the fact that a performance occurs at different times for different users does not legally prevent it from being a public performance. Similarly, when you download a music file, the public performance right may be implicated. This is true even if you do not listen to the music immediately after it is downloaded, since copyright law only requires that the performance is transmitted.

Licensing of the public performance right is handled predominantly by performing rights organizations such as ASCAP, BMI and SESAC in the United States, and by similar performing rights organizations in other countries. The performing rights organizations offer licenses which authorize performances of musical compositions over the Internet, for fees generally based on the amount of music used and the amount of revenue generated. It is also important to realize that under the Digital Performance Right in Sound Recordings Act of 1995, sound recordings transmitted over the Internet are also subject to a performance right. To obtain performance licenses for sound recordings, you would need either to contact the copyright owner of the particular sound recording (usually a record company) or the copyright owner?s licensing agent. Currently, it appears that an organization called Sound Exchange (a division of the Recording Industry Association of America) will be the licensing agent for the majority of American record companies. Most foreign countries recognize a broader performance right than the United States. In such countries, the performance right generally applies to all public performances (including live performances, broadcast performances, and digitally transmitted performances) rather than solely digital transmissions.

C. The Reproduction/Performance Controversy

Before the digital distribution of music over the Internet, the difference between a reproduction and a performance of music was usually clear. Unfortunately, music transmitted over the Internet does not always fit within these distinct categories. Often, both rights are involved when music is transmitted over the Internet. In a sense, the distinction between listening to, and purchasing, music becomes blurred in the Internet environment.

Resolving this controversy has not been easy, in great part due to the turf war between reproduction right licensing agents and performance right organizations, neither of whom want to give up a potentially lucrative source of royalty income. The transmission of music over the Internet generally makes the act of copying automatic since the digital representation of the music is copied into the receiving computer?s Random Access Memory (RAM), so that it can be played. Consequently, reproduction rights agents such as the Harry Fox Agency believe that virtually all transmissions of music involve a reproduction. At the same time, the performance rights organizations believe that all transmissions also constitute public performances. The result is that a website wanting to make music available by digital transmission over the Internet is forced to obtain several licenses for the right to transmit musical compositions, as well as to obtain separate licenses to transmit sound recordings.


Example :
A website which allows users to download from a choice of copyrighted musical compositions and sound recordings would have to obtain at least the following licenses : mechanical licenses for the reproduction of musical compositions from the Harry Fox Agency, or individual publishers; blanket performance licenses from ASCAP, BMI and SESAC; and licenses for the reproduction and performance of the Sound Exchange, or the copyright owners of the sound recordings.




There seem to be two potential solutions to this problem. One would be to amend the definitions of reproduction and performance in the Copyright Act to classify certain types of transmissions as reproductions and others as performances. For instance, transmissions that result in a permanent copy could be classified as reproductions, while transmissions that are listened to while being made, and do not result in a permanent copy, could be classified as performances. A second solution would be to reach some type of compromise allowing website operators to obtain a single license covering both the reproduction and performance rights for musical compositions. For instance, copyright owners could appoint a licensing agent to grant the rights of reproduction and public performance for a single fee, thereby simplifying the online licensing process. At this point, such a compromise seems unlikely due to the vested interests of existing licensing agents. Ultimately, however, what is important is that copyright owners are adequately compensated for the use of their works, rather than how those uses are classified, or who collects for them.

The United States Copyright Office has recently weighed in on the webcasting reproduction/performance controversy and has taken the position that it is likely that the reproduction of a temporary or "buffer" copy in the course of streaming is a fair use which would not require an additional payment to the copyright owner.9 The Copyright Office?s reasoning is based on the fact that buffer copies exist only for a short period of time, and consist of only small portions of a work. The Copyright Office stated that:

The sole purpose of making the buffer copies is to permit an activity that is licensed by the copyright owner and for which the copyright owner receives a performance royalty. In essence, copyright owners appear to be seeking to be paid twice for the same activity.10

Although the Copyright Office?s position has no legal effect, it is possible that Congress may eventually decide to resolve this issue, and Congress often gives a great deal of deference to the Copyright Office?s recommendations.

C. The Distribution Right

Another complication brought about by the transmission of music over the Internet involves the copyright owner?s exclusive right to distribute the copyrighted work. Under the first sale doctrine, once someone has legally acquired a copy or phonorecord containing a copyrighted work (e.g., a compact disc, cassette, etc.), they can sell or otherwise distribute that copy or phonorecord without the copyright owner?s consent.11 The first sale doctrine applies to the material object containing a copyrighted work, and is limited to that material object. For example, someone who has lawfully acquired a compact disc is free to distribute that compact disc to someone else. However, the compact disc owner is not free to make and distribute copies of the copyrighted works contained on that compact disc.

In order for a distribution to take place, a material object must change hands. In the online environment, the concept of distribution becomes a bit fuzzy. When a copyrighted work such as a sound recording is transmitted over the Internet, it seems like a distribution has taken place. However, this is not technically true, since such a transmission does not involve the transfer of a material object. Instead, the owner of the copy or phonorecord transmitted still possesses that copy or phonorecord, and the recipient has received a copy of the original. Instead of a distribution, what has taken place is really a reproduction of the original work, which results in a new copy being created. Since a reproduction rather than a distribution has taken place, the first sale doctrine does not apply (since the first sale doctrine is limited solely to the distribution right). The new copy resulting from a digital transmission would therefore be an infringement unless made with the copyright owner?s permission.


Example :
If you buy a compact disc from a record store, the store no longer owns that compact disc. In contrast, if you download a sound recording from a website, a material object has not changed hands. Instead, a reproduction of the sound recording has been made, usually by the copying of the file to your computer's hard drive. If the download was made legally (i.e., the appropriate licenses had been secured), the first sale doctrine would allow you to distribute the phonorecord contained on your hard drive (for example, by removing your hard drive from the computer and giving it to someone else). However, you would not have the right to make and distribute additional phonorecords (such as by copying the file to a recordable compact disc and giving the compact disc to a friend) since the first sale doctrine does not apply to the reproduction right.





Some critics have argued that the first sale doctrine should be extended to reproduction to the extent necessary to allow the digital transmission of a work by the owner of a legally-made copy of the work, as long as the owner of the copy destroys his or her copy after making the transmission. For example, a proposed piece of legislation in the United States known as the Music Online Competition Act12 would expand the first sale doctrine to permit the reproduction that occurs during the course of a digital transmission, provided that the transmitter deletes his or her copy after making the transmission.

The United States Copyright Office, in a recent report to Congress, recommended that Congress refrain from expanding the first sale doctrine as proposed by the Music Online Competition Act, basing its recommendation on the inherent differences between physical copies and digitally transmitted copies. Physical copies of works (especially those in analog formats) degrade over time, making used copies less desirable than new ones. However, digitally transmitted copies do not degrade over time regardless of how much they are used. Additionally, with an Internet connection, digital copies can be transmitted almost instantaneously to an infinite number of people worldwide. The Copyright Office Report states that:

The need to transport physical copies of works, which acts as a natural brake on the effect of resales on the copyright owner?s market, no longer exists in the realm of digital transmissions. The ability of such "used" copies to compete for market share with new copies is thus far greater in the digital world.13

The Copyright Office also expressed doubt about the practicality of the Music Online Competition Act?s requirement that a transmitter delete his or her copy after transmitting it. It would be very difficult for a copyright owner to prove or disprove that someone deleted a copy of a digital file from their computer hard drive or other storage device, after transmitting a copy to someone else. Further, the Copyright Office believes that this difficulty would likely result in "greatly increased risk of infringement in a medium where piracy risks are already orders of magnitude greater than in the physical world".14 According to the Copyright Office:

Removing, even in limited circumstances, the legal limitations on retransmission of works, coupled with the lack of inherent technological limitations on rapid duplication and dissemination, will make it too easy for unauthorized copies to be made and distributed, seriously harming the market for those works.15

Interestingly, the Copyright Office cited "the Napster phenomenon" as evidence that consumers generally want to retain rather than destroy copies which they use to transmit further copies to others.16 Before Napster was forced to shut down by a court order until it could find a way to prevent the massive copyright infringements it was enabling to occur, Napster users would typically transmit digital files to others while retaining their own files. It certainly does not appear to be realistic to expect people voluntarily to comply with a legal requirement to delete their copies of digital files that they transmit to others. Moreover, the costs to copyright owners of policing and enforcing such a requirement would be prohibitive



D. Conclusion

Technological innovations have brought about new ways in which copyrighted works can be reproduced, distributed, performed, and enjoyed. The beginning of the 21st century has been a great challenge for copyright, but despite copyright owners? fears of piracy and the anti-copyright establishment?s cries of a revolution to free music, copyright will continue to survive.

Copyright has survived numerous technological advances over the past two centuries such as the player piano, phonograph recordings, motion pictures, television, radio, cassettes and compact discs. Often, these new technologies have posed challenges to copyright law?s applicability. Although copyright has not always adapted immediately and smoothly, it has not prevented any of these technologies from thriving. Similarly, copyright will survive the challenges posed by the Internet and the digital distribution of music. However, its application will certainly change as new legislation is passed, court precedents are established, and protective technologies are incorporated into copyrighted works.

As always, copyright law must balance the competing interests of copyright owners and the public. Just as the public needs to become educated about copyright law, the music industry needs to educate itself about new ways that music can be made available. Although the music industry should not be blamed for protecting its property, it does deserve some blame for failing to be open to new possibilities of legally making music available in ways that consumers want it. If the music industry becomes a bit more flexible and responsive to new technologies and business models, neither the Internet, nor any other technology, is likely to destroy it. Instead, technology can be used to enhance the creativity of artists, and increase the dissemination of music to the public, which is exactly what copyright is supposed to accomplish.


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1. "The Economy of Ideas", Wired (Mar. 1994), 84-85.
2. For example, Vivendi Universal recently purchased MP3.com for approximately $5 per share. Vivendi Universal had previously acquired Emusic, while Bertelsmann purchased a majority interest in Napster in return for providing funding to try to keep the struggling company in business along more legitimate lines.
3. See: H.R. Rep. No. 1476, 94th Cong., 2d Sess. 47,52 (1976).
4. UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp.2d,349.350 (S.D.N.Y. 2000).
5. Some audiophiles would disagree as to the loss of of sound quality when music is compressed in MP3 format. However, to most casual listeners, the reduction in sound quality is minor and possibly unnoticeable.
6. See: Vito Peraino, "The Law of Increasing Returns", Wired (Aug. 1999), 144.
7. I use the word "generally" since, in limited circumstances, uploading or downloading a copyrighted work without the copyright owner's consent may not constitute copyright infringement if the defense of fair use is applicable.
8. See:Final report of the National Commission on New Technological Uses of Copyrighted Works (1978), 40.
9. Digital Millenium Copyright Act of 1998, Section 104 Report, August 2001, pp 132-148, available online at: http://www.loc.gov/copyright/reports/studies/dmca/dmca_study.html
10. Id.
11. 17 U.S.C. 109.
12. Music Online Competition Act of 2001, H.R.2724, August 2, 2001, available online at: http://thomas.loc.gov/cgi-bin/query/z?c107:H.R.2724.IH: (or more concisely : http://www.house.gov/boucher/docs/moca-summary.htm)
13. Digital Millenium Copyright Act of 1998, Section 104 Report, August 2001, pp.82-83.
14. Digital Millenium Copyright Act of 1998, Section 104 Report, August 2001, pp.83-84.
15. Id.
16. Id., 85.








Dr. David Moser is Assistant Professor of Music Business at Belmont University, and a North American Special Consultant for Music Business Journal

http://www.musicjournal.org/02songwriting.htm

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