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Prof proposes music biz ends copyright protection obsession

Allow copying, share profits like broadcasting royalties

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"Give it away, give it away, give it away, give it away now," was the chant of the Red Hot Chilli Peppers a few years back. The Peppers weren't singing about the music industry, but recording companies looking to make sense of the Net would do well to follow their advice, according to Harvard Law School Prof Terry Fisher. Fisher's point, made last week at the Signal or Noise? The Future of Music on the Net conference, and subsequently reported by Wired News, is that because the digitisation of music and other media makes perfect duplication so easy, copyright holders should cease trying to profit from their intellectual property directly - in other words, stop trying to prevent their music being copied - and instead share whatever profit the industry makes as a whole. It's a smart idea. While at first glance Fisher might appear to be suggesting that even the likes of ultra-low-selling Smeg and the Heads - "out now on the Wanker label," as Peely might put it - get rich on the back of Mariah Carey's latest best-seller, in fact no such distribution of wealth is implied. They're Doing it Already The business model is one the music industry already uses, to make sure they take their cut from tracks put out on TV and radio. Broadcasting companies pay a fixed fee to royalty administrators who then share it out among the artists they represent under a ratio governed by how likely they are to have had their works transmitted. It's not a perfect system -- the administrators are largely guessing how many times a given artists' work is broadcast -- but it works. There's no limitation on how many times a track can be broadcast, and nothing to stop that track being copied. In short, it's the very antithesis of what the music industry is trying to achieve with digital distribution. Translating such a system to the online world would result in the very "unfettered release of intellectual property with profits distributed fairly among all interested parties" that Fisher is proposing. Unworkable Strategies Fisher contends that this is the only workable option open to the music industry. Rigid copyright enforcement - either through aggressive legal action against infringers or control over the copying process through copy protection mechanisms - will work to a degree, but will never be a satisfactory solution for consumers or recording companies alike. Legal action depends on tracking down and successfully prosecuting pirates, which is both costly and, in the Internet world, often ineffective. "The record industry has not succeeded, nor have they failed," Fisher said. "The doctrinal basis of these suits is very solid. If they can be mounted, they would be very effective. The problem is it's hard to locate the target." Copy protection limits the freedom individuals have to listen to music in they way they want to, particularly now we've all got used to dumping CDs to tape, MiniDisc or MP3 so we can listen to them on the move. Consumers will reject systems that curtail that kind of activity, reckons Fisher. Ironically, this could actually be the basis for copyright protection schemes such as the Secure Digital Music Initiative (SDMI): to make the whole damn business too inflexible for most consumers, who will turn back to the traditional hard media. The Drugs Don't Work Such speculation aside, Fisher's proposals are unlikely to win the support of the music industry. His argument neatly mirrors that of those who reckon the solution to the West's drug problem is the legalisation of soft drugs - that the real trouble is the criminality prohibition engenders, not the use of illicit pharmaceuticals per se. It's a valid argument, but one that hard for conservative authorities to take on board - it's just too hard not to view such a liberalisation as resulting in the world and its dog getting permanently stoned. Equally, it's hard for the record companies not to view abandoning copy protection as a signal to everyone that they need never buy a CD ever again. But then that's possible now, thanks to domestic cassette and CD recorders, and there's no evidence that the slowdown in album sales has anything to do with that rather than a lack of material worth buying. ®

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