Kiwi music at risk

March 13th, 2012 at 8:07 am by David Farrar

blog at Frog Blog:

With the Trans-Pacific Partnership Agreement negotiations having just occurred in Melbourne I’m urging the Government not to surrender New Zealand’s sovereignty on copyright so we can keep enjoying Kiwi Music in the public domain.

Under a leaked draft of the TPPA, length is to be extended from 50 to ‘…not less than 95 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram,’ meaning music and recordings set to enter the public domain in New Zealand will take decades longer.

An iconic song that would be impacted by the copyright extension is the Fourmyula’s “Nature”which was voted the best New Zealand song ever written. Produced in 1969 this song should enter the public domain in 2020 to be remixed, re-played, and re-imagined however under proposed TPPA rules Kiwis would have to wait to 2065. Likewise Ray Columbus’s “She’s a Mod,” released in June 1964 wouldn’t enter the public domain till 2059.

The extension in the term of copyright would mean no new works would enter the public domain in New Zealand until at least the late 2050s negatively impacting access to New Zealand culture and history. In particular ‘orphan works’ that aren’t available commercially would just not be accessible.

Kiwi listeners and artists will miss out on freely accessing Kiwi classics until the 2060s not benefiting the musicians who would have likely died decade’s prior, but benefitting mostly very profitable businesses who own the copyright. Copyright is about finding a balance and I welcome a discussion – should it be 40, 50, 60 years etc. but I think 95 years is extreme.

95 years definitely is extreme, and the should not be used to rewrite our copyright and other intellectual property laws. The Government has been resisting the US demands, but of course at some stage there will be great pressure to make concessions. Our concessions should be  allowing the US to export whatever goods or services they want to us, but not allowing them to export their laws onto us.

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26 Responses to “Kiwi music at risk”

  1. Peter (1,662 comments) says:

    Whilst I don’t think the US should be forcing their laws onto us, I’m not so sure why a copyright owner should be forced to gift their property into the public domain, just so the likes of Gareth can “remix, re-play, and re-imagine (wtf?)”

    People aren’t denied access to the work. They can replay it as much as they like, so long as they pay for it. If they want to remix it, I understand they pay a fee for that, too. I have no idea what “reimagine” means, but perhaps it has something to do with John Lennon.

    What’s the real problem here? Gareth wants private property to be made public?

    Oh, what a surprise.

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  2. Rick Rowling (823 comments) says:

    We need stronger IP laws.

    Because I’ve only been paid 60,000 times for that afternoon’s work I did in 1975.

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  3. redkea (14 comments) says:

    >What’s the real problem here? Gareth wants private property to be made public?

    Copyright is nothing more than a left-wing state subsidy.

    Copyright ‘holders’ rely entirely on the state to protect their income by restricting copying through enforcement and threats.

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  4. Richard29 (377 comments) says:

    @Peter
    This isn’t about the interests of artists (who are long since dead) it’s the interests of estates and corporations who own significant copyrighted works. I completely understand the interests of the parties who lobbied for the law – but it’s a shame that the lawmakers folded as I don’t think it’s in the public interest. It’s not about making private property public – copyright is the action of granting a licence for a limited time to reward the creators of works through being able to seek monopoly rents. Extending monopoly rights in perpetuity is not in the interests of a free market. To me, giving monopoly rights to a group to charge royalties or restrict competition in sales and distribution for decades seems silly when they bear no relation to the original creators.

    As you raised John Lennon I’ll use that example – the rights to most of the Beatles back catalogue was bought by Michael Jackson – who himself has now died so the rights will be held by his estate or sold. Now I have no problem with Prince or Blanket or whatever the other one is called, but I fail to see why they should be able to go through their entire working lives living of the royalties of John Lennon’s creativity – it’s just government lining up against freedom and in support of inherited privelege.

    Mickey Mouse Protection Act:
    http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

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  5. MT_Tinman (3,043 comments) says:

    Music?

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  6. Lance (2,550 comments) says:

    The TPP provisions sound like ‘you will bend over and take this or else’

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  7. adze (1,974 comments) says:

    95 years is ridiculous, and it has everything to do with corporates rather than artists. No artist will live 95 years after they create a work, unless it was a fingerprinting done while they were a toddler.

    This IP business as a whole is getting extreme. People should be recompensed for their work, but any such creative work will have been influenced or derived in part by prior art. Nothing occurs in a vacuum (except quantum fluctuations).

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  8. SteveO (77 comments) says:

    Sadly, I suspect that copyright length is one of those things that our negotiators will have identified as being of more value to the US than it is for us so will be used to pry some very worthy concessions out of them. As a nation, we’ll probably end up deciding that it is much better for us to sell vat loads of butter to the US than have the right to sing “She’s A Mod” out of tune in 2014. So, reluctantly but deliberately, we will accept the compromise.

    We’ll do our bit, no doubt, and pass the required law extending copyright out to 95 years and look forward to increased export earnings that will never come because somehow, the US will never get around to removing the 101 non-legislative barriers to trade that their negotiators assured us would disappear as soon as we compromised.

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  9. Weihana (4,496 comments) says:

    # Lance (1,189) Says:
    March 13th, 2012 at 9:14 am

    The TPP provisions sound like ‘you will bend over and take this or else’

    Or else what? Surely there are plenty of other nations with which we can negotiate free trade deals. Is the benefit of a US deal worth the shafting they want to give us?

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  10. dime (9,634 comments) says:

    “but I fail to see why they should be able to go through their entire working lives living of the royalties of John Lennon’s creativity – it’s just government lining up against freedom and in support of inherited privelege.”

    umm Mike did pay millions for the rights.

    do you own a business? you invested capital?? i dont care! i dont see why your kids should be able to live off the profits forever!

    so, after a set amount of time you have to give up your company profits.

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  11. 3-coil (1,204 comments) says:

    After an artist has composed a piece of music, what they do with the fruit of their efforts is their business. They may sell the rights, leave them to their children/estate, donate them to a charity…whatever, but I don’t see why it should revert to public domain ever.

    Try applying that logic to a visual painting created by an artist – it would never work. Why should a piece of music not have the same status and protection as a solid/material asset that has been created, such as a painting?

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  12. dime (9,634 comments) says:

    95 years is not extreme. we are talking about private property.

    going back im sure its been hard to track who originally wrote the songs, who owns them etc.

    in this day n age though i dont see why a song should ever enter into public domain.

    especially when you get assholes like this guy who want to butcher your songs. screw that.

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  13. Weihana (4,496 comments) says:


    “Gareth wants private property to be made public?” – Peter

    It’s worth remembering what a copyright is: it is a trade between the state and the artist. The state provides a monopoly licence for the work which grants the artist legal rights to the intangible asset, whilst artists provide their work for public consumption. There is no natural right to profit from the creation in perpetuity. Information is capable of infinite replication and copying this information does not deprive the artist of their ability to enjoy what they have created. If they want to keep it all to themselves then they are free to keep their artistic works locked up away from the public. But if they want to profit from it then they have to trade with the state. The terms of the trade are: limited monopoly rights in exchange for making the work available to the public. Therefore the state is well within its rights to limit the terms of copyright to the shortest extent possible sufficient to induce copyrighted works to be created.

    On this basis I conclude 50 years is too long as no artist is induced to create artistic works on the hopes of revenues generated 50 years hence. 20 years would probably be sufficient.

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  14. Peter (1,662 comments) says:

    I’m not sure the public is being deprived of anything.

    Why anyone would want to listen to “She’s A Mod” in 2020, or 2012 for that matter, is beyond me, but if they do, they can find it easily on YouTube, or iTunes, or whatever distribution method will be used in 2020. They are not deprived of it.

    In the case of YouTube, they don’t even need to pay for it – the advertiser does so on their behalf. A change in copyright means the song becomes public domain, but I’m sure the advertisements will continue and Google will get 100% of the revenue as the distributor.

    So who is really being hurt here? The owner.

    Who benefits? The distributor.

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  15. Weihana (4,496 comments) says:

    3-coil,


    After an artist has composed a piece of music, what they do with the fruit of their efforts is their business.

    Agreed. And they can hide their music away from anyone and enjoy it all to themselves if they so wish. But if they want to make a profit from it they require the resources of the state to enforce an artificial legal protection and what the state does with its resources is its business.


    They may sell the rights, leave them to their children/estate, donate them to a charity…whatever, but I don’t see why it should revert to public domain ever.

    Because that is the price of the legal construct which grants them limited monopoly rights.


    Try applying that logic to a visual painting created by an artist – it would never work. Why should a piece of music not have the same status and protection as a solid/material asset that has been created, such as a painting?

    Because a tangible asset is NOT THE SAME THING as an intangible asset. If I take a tangible object from someone then they are deprived of using that object. An intangible thing such as music can be copied ad infinitum without depriving anyone of the ability to enjoy that thing.

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  16. Weihana (4,496 comments) says:

    dime (4,069) Says:
    March 13th, 2012 at 10:52 am


    95 years is not extreme. we are talking about private property.

    We are talking about intellectual property which should not be treated the same as other forms of private property for reasons already mentioned.

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  17. Weihana (4,496 comments) says:

    dime,


    do you own a business? you invested capital?? i dont care! i dont see why your kids should be able to live off the profits forever!

    Business generally doesn’t operate in an environment where they have exclusive monopoly rights to sell their product. If someone starts up a burger joint, someone else can copy them and start up another burger joint across the road. Thus, business requires constant work and ongoing investment in a competitive environment. Intellectual property requires no such thing because the law grants exclusive rights to the work.

    Thus, if a person is lucky enough to inherit riches from their parents they will either continue to invest their wealth wisely, thus living up to the wealth they have not earned, or they will begin to throw that wealth away and eventually undo all the progress their parents achieved before them.

    However, if we imagine that intellectual property is the same as other types of private property then the descendent of a person who invented, say, the wheel could demand royalties from anyone who copied his ancestor’s invention thus diverting reward away from those who are productive and hardworking toward someone who isn’t, who hasn’t contributed anything and is merely a parasite on society. This is the logical conclusion of your line of thinking if you refuse to differentiate between intellectual property and other forms of private property.

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  18. UrbanNeocolonialist (219 comments) says:

    Patents are for 20 years, are they any less an intellectual property than a song?

    20 years is more than enough to reward people for creative works.

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  19. dime (9,634 comments) says:

    weihana – if i wrote a song, i wont stop you from also writing one..

    mcdonalds seems to have protection for their big mac etc. or does the big mac go into public domain soon and we all get to make special sauce?

    as it stands, no one is deprived from having a big mac, they just have to pay.

    i think the argument that songs should be like patents is weak. someone retaining rights to their music will not hold society back.

    i think the patents on drugs arent long enough, but it helps society the way it is.

    some dude butchering classics or playing them for free in his night club isnt helping society.

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  20. adze (1,974 comments) says:

    But dime, if you appealing to the notion that IP is private property, and is therefore not obligated to anyone else, why do you make a distinction for patents on the basis that society will be held back? Who cares; it’s private property right?

    Forever is a very long time. Should Chrysler have to pay royalties to whichever inventor’s family “owns” the patent to the internal combustion engine (or the wheel for that matter)?

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  21. 3-coil (1,204 comments) says:

    Weihana

    “Try applying that logic to a visual painting created by an artist – it would never work. Why should a piece of music not have the same status and protection as a solid/material asset that has been created, such as a painting?

    Because a tangible asset is NOT THE SAME THING as an intangible asset. If I take a tangible object from someone then they are deprived of using that object. An intangible thing such as music can be copied ad infinitum without depriving anyone of the ability to enjoy that thing.”

    We are not talking about the artist/owner’s “ability to enjoy” their creation – if I take a copy of an artist’s painting and put it on a tee-shirt they still have the original to “enjoy”, but I can profit from their intellectual creativity. The same criteria and protection should apply to music as any other art form.

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  22. Weihana (4,496 comments) says:

    3-coil,

    Correct me if I’m wrong, but my understanding is that a painting IS no different to any other artistic creation. Copyright will apply for a limited time after which it will expire and enter the public domain. So I’m not sure what point you are making here by referencing paintings.

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  23. dime (9,634 comments) says:

    Art expires as well. Then its a free for all with prints.

    Adze – because im not a total ideologue. Sometimes “society” comes first.

    but with art & music. why should someone lose their rights so others can profit off it?

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  24. Weihana (4,496 comments) says:

    # dime (4,071) Says:
    March 13th, 2012 at 12:21 pm

    weihana – if i wrote a song, i wont stop you from also writing one..

    Agreed. But it is the value of the song you wrote that is, hypothetically, in issue. Just because you wrote it is not, in my view, sufficient justification to award a monopoly licence in perpetuity just as it isn’t sufficient if you invented a new device.


    mcdonalds seems to have protection for their big mac etc. or does the big mac go into public domain soon and we all get to make special sauce? as it stands, no one is deprived from having a big mac, they just have to pay.

    What you are talking about is trademarks and trade secrets which is quite different. A trademark is to
    “identify that the products or services with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities.”

    A trade secret is “a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers”

    A trade secret is not protected under law except by such instruments as a non-disclosure agreement. If another company discovers how to make “special sauce” they are well within their rights to distribute it for profit. They cannot, however, use a trademark in order to pretend it is from a certain source when it is not.

    These are quite different matters than copyright and as such are handled differently. Copyright should not exist in perpetuity like a trademark because it isn’t one, likewise it should be subject to more protection than trade secrets because it is different from a trade secret.


    i think the argument that songs should be like patents is weak. someone retaining rights to their music will not hold society back.

    Ohhhh… so personal property is only valid so long as it is in “societies” interest. You big socialist you. ;)


    i think the patents on drugs arent long enough, but it helps society the way it is.

    some dude butchering classics or playing them for free in his night club isnt helping society.

    Society benefits from art simply because society enjoys art and holds art to be valuable. Whether you personally think certain forms of art are important or not is irrelevant, the fact is they hold value to people otherwise there wouldn’t be an issue.

    The question is therefore how should society realize that value. Should it:

    * afford creative efforts no protection thus destroying any incentive to create in the first place?

    * afford creative efforts protection in perpetuity thus inevitably enriching people who do not deserve it, took no part in the creative effort and thus diverting societies resources from the productive to the unproductive?

    * afford only so much protection as is necessary to induce creation in the first instance?

    I choose the latter as the only rational option.

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  25. Weihana (4,496 comments) says:

    dime,


    why should someone lose their rights so others can profit off it?

    Because there is no rational motive to protect copyrights in perpetuity.

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  26. dime (9,634 comments) says:

    rational? that would make me irrational? :O

    ill concede perpetuity is a hell of a long time lol how about the 90 years with the option of extending the rights.

    50 years isnt a long time. hell, 50 years would mean people could start butchering the beatles soon. (i know, some people have already butchered them).

    and im not a complete ideologue! sometimes i believe in things for the good of society… sometimes!

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