What if Swedish artists were allowed to sample freely?

[TankGirl]

In the light of the recent Swedish developments it is a conceivable possibility that the Swedish musicians might get soon a permission to sample freely whatever they want to their creative works. While we don't know how likely this is, it is a possibility. Let's play a little with it.

A Swedish composer could sample say any fresh American big label music and use it as a material in her new original work of art. In Sweden her composition would be fully legal and she would not have to fear about being harassed or going bankrupt because of the samples she used. Would her art be fully legal also in America? If not, at which point of a p2p delivery would it change from legal to illegal?

And what do you think - would a Swedish composer have an artistic advantage over her American colleagues if she could freely utilize modern commercial audio material in her works?

[JackSpratts]

i'm not clear why this might prove advantageous to a swedish artist vis-a-vis her american counterpart per-se, since artists are generally free to incorporate whatever they feel like incorporating in their work. the advantage such as it is would occur primarily when said artist proceeds to sell multiple copies of "her" works, and that rarely happens without the aid of a large recording and distributing syndicate, even now in 2006. so i guess we're talking about the advantage a swedish record company would have in profiting from works they didn't invest in, that were (to some degree or another) created by an outside artist and sold without compensation. under those circumstances the swedish record company could do quite well i'm sure. i could see record company business models that encourage the quick packaging of swedish pop bands to clone and sell american hits, that wind up making lots of fast money. i'm just not sure i'm entirely comfortable with such a development.

conversely if we reach some sort of tipping point where ip policy becomes so eviscerated that nobody sells records anymore and all this stuff is pumped out for nothing, in order to rotate turnstiles at concert venues or something promotional like that, then yeah, anyone who could freely and quickly incorporate the latest microtrends in music without having to worry about any plagiarism blowbacks might have an advantage over somebody who didn't...perhaps. it's just that in such a scenario as described above the american band, being the one who did it first would i think have the advantage of freshness, and would gain the most because of it, in international competitions for audiences such as roskilde at least. so ultimately, "firstness," if not actual originality might still command a premium, and the commercial, if not the artistic advantage.

- js.

[TankGirl]

Originally Posted by JackSpratts

i'm not clear why this might prove advantageous to a swedish artist vis-a-vis her american counterpart per-se, since artists are generally free to incorporate whatever they feel like incorporating in their work.

Are they? Can for example an US artist freely create and release (say using non-commercial public channels) an original work of art where the sound material comes from say today's 20 most sold US singles? I'm not interested in the question of cheap commercial rip-offs or non-creative repackings but in clearly original creative works where the sound material just happens to come from fresh commercial works? Say an artist builds a smart sound collage from bits and pieces of these 20 different tracks so that the new work is clearly not derived from any of the source material works but rather a novel, creative recombination of their elements plus whatever other stuff the artists would like to add. Would an American artist be free to release such a work without fear of being harassed by the copyright owners of the original works?

[JackSpratts]

Originally Posted by TankGirl

Are they? Would an American artist be free to release such a work without fear of being harassed by the copyright owners of the original works?

well if we're discussing reproductions that's where everything changes. here in the us there would be nothing to stop your artist from creating, and even performing her work regardless of its genesis. nothing i've encountered i should say, and i've been associated with live shows and artists who incorporate stuff from everywhere for years. but when that same artist copied the work and released reproductions of it then yes, that's when she'd open herself to litigation possibilities.

i'm a dj. i can play shows all night long, no problem, but i can't sell copies of those shows if they contain copyrighted material and of course they're stuffed with it. people try to pay me for copies and i have to turn them down, it’s too bad. even there if i pushed it i might be able to work out a deal and get the proper licenses…who knows? but it never affects my primary work. it’s true that most people can’t groove to mr. spratts when he’s soaking in the bath and it’s their loss certainly. he has to be there live – but – if it’s live, there’s nothing stopping him from mashing up the entire riaa catalog should he feel like it.

so it shouldn't stop her from creating either. or i should add, necessarily. you never know what'll stop somebody from working. but yeah, it could sure stop her from reproducing.

- js.

[Mazer]

Realistically, will copyright be completly removed from Sweedish law, or will they simply reduce the copyright terms and infringement penalties?

Sweden is a signatory to four international copyright treaties, including the Berne convention and the Rome convention. These treaties require a term of protection lasting for at least lifetime of the author, producer, or performer of the recording plus 50 years, but they give Sweden the ability to make exceptions for specific uses of copyrighted material. If the Swedes want to change their law to give citizens the right to sample copyrighted songs for commercial use then they may do so, but that exception will not extend beyond Sweden's borders.

To my knowledge there are no compulsory licensing laws that apply to music samples, so I would expect that if such a compilation as you're describing were to be produced in Sweden and published abroad that the producer of that mash-up would be legally liable in the other countries that have signed those treaties. And should she visit one of those nations she would be subject to arrest and trial for her crimes, such as happened to Dmitry Sklyarov when he visited the United States. Furthermore, these other nations might decide to censor the mash-up and bar it from sale or broadcast until the proper license fees are paid.

[~XIX~]

Originally Posted by Mazer

Realistically, will copyright be completly removed from Sweedish law, or will they simply reduce the copyright terms and infringement penalties?

Sweden is a signatory to four international copyright treaties, including the Berne convention and the Rome convention. These treaties require a term of protection lasting for at least lifetime of the author, producer, or performer of the recording plus 50 years, but they give Sweden the ability to make exceptions for specific uses of copyrighted material. If the Swedes want to change their law to give citizens the right to sample copyrighted songs for commercial use then they may do so, but that exception will not extend beyond Sweden's borders.

To my knowledge there are no compulsory licensing laws that apply to music samples, so I would expect that if such a compilation as you're describing were to be produced in Sweden and published abroad that the producer of that mash-up would be legally liable in the other countries that have signed those treaties. And should she visit one of those nations she would be subject to arrest and trial for her crimes, such as happened to Dmitry Sklyarov when he visited the United States. Furthermore, these other nations might decide to censor the mash-up and bar it from sale or broadcast until the proper license fees are paid.

Interesting. As far as I know (at least in the UK) the limit is 2 bars or 2 seconds... and that sample cannot be used as the 'hook' for the tune either... unless royalties are paid... and i think that permission needs to be asked before release or u will be sued.

I was also under the impression that the US had extended copyright on music to 75 years after death... prolly cuz Elvis' estate isn't rich enough yet

[TankGirl]

Originally Posted by Mazer

Realistically, will copyright be completly removed from Sweedish law, or will they simply reduce the copyright terms and infringement penalties?

It's too early to estimate yet what parts of their agenda the pirates might get through should they manage to march to the parliament. Here's what they demand anyway:

The monopoly for the copyright holder to exploit an aesthetic work commercially should be limited to five years after publication. Today's copyright terms are simply absurd. Nobody needs to make money seventy years after he is dead. No film studio or record company bases its investment decisions on the off-chance that the product would be of interest to anyone a hundred years in the future. The commercial life of cultural works is staggeringly short in today's world. If you haven't made your money back in the first one or two years, you never will. A five years copyright term for commercial use is more than enough. Non-commercial use should be free from day one.

So for the sake of this thought experiment, let's assume that this part of the agenda would go through, and the Swedish artists would be able to use non-commercially everything from day one and commercially anything at least five years old. Let's also assume that what you say about the situation elsewhere...

Sweden is a signatory to four international copyright treaties, including the Berne convention and the Rome convention. These treaties require a term of protection lasting for at least lifetime of the author, producer, or performer of the recording plus 50 years, but they give Sweden the ability to make exceptions for specific uses of copyrighted material. If the Swedes want to change their law to give citizens the right to sample copyrighted songs for commercial use then they may do so, but that exception will not extend beyond Sweden's borders.

To my knowledge there are no compulsory licensing laws that apply to music samples, so I would expect that if such a compilation as you're describing were to be produced in Sweden and published abroad that the producer of that mash-up would be legally liable in the other countries that have signed those treaties. And should she visit one of those nations she would be subject to arrest and trial for her crimes, such as happened to Dmitry Sklyarov when he visited the United States. Furthermore, these other nations might decide to censor the mash-up and bar it from sale or broadcast until the proper license fees are paid.

...would apply.

Say we have a hypothetical Swedish composer Lena Svensson who has a fascination for modern soundworlds. She has already used all sorts of modern sounds in her critically acclaimed sound collages and welcomes the new more liberal law that finally gives her legal access also to use modern music recordings as one of the brushes in her audio palette. As she makes part of her living selling signed copies of her self-released albums to her fans, she decides to respect the 5 year protection time, just in case. Then she starts to work on and release all sorts of fancy sound collages with musical elements sampled from anything released anywhere up to year 2001. Audience receives her works well, enjoying the smart way she references modern pop culture with actual samples from well-known contemporary works. And so she gets not only more fans but also musical followers, giving birth to a new subgenre of electronic music known as 'Free Swedish'. In February 2007 TV5, the French culture channel, would award her with a prize for the best album of the year.

Would TV5 be able to play her album?
Would she risk being arrested if she went to Paris to pick up her prize?

Further...

Say we have a hypotethical American composer Jack Jazzy who likes obscure Scandinavian stuff and has downloaded all Lena Svensson's albums from Pirate Bay. Lena Svensson released all her albums under a Creative Commons license in Sweden and put them up on Pirate Bay herself for anybody to take. Did Jack commit a crime by downloading them?

Jack as a composer immediately falls in love with the 'Free Swedish' style and decides to compose some 'Free Swedish' himself. And so he comes up with a great new album of that genre. Would there be any place on the planet where he could release the album without having to fear about the consequences?

[~XIX~]

Originally Posted by TankGirl

The monopoly for the copyright holder to exploit an aesthetic work commercially should be limited to five years after publication. Today's copyright terms are simply absurd. Nobody needs to make money seventy years after he is dead. No film studio or record company bases its investment decisions on the off-chance that the product would be of interest to anyone a hundred years in the future. The commercial life of cultural works is staggeringly short in today's world. If you haven't made your money back in the first one or two years, you never will. A five years copyright term for commercial use is more than enough. Non-commercial use should be free from day one.

ok, it isn't TG's quote, she quoted it from elsewhere...

I disagree... I'm sitting on tunes up to a decade old, and they are not limited by their style, and they haven't been made commercially available. There is a massive difference between 5 years from completion to 70 years after death. The 70 years after death is like a 'just in case' clause... if some guy dies at 30 surely his family should be able to get some benefit from his work if it is commercially successful after his death? If not I feel you're really opening the floodgates to some very seedy and unfair business practices.

Anyway, there are plenty of examples of music making far more money a number of years after release. I can think of two off the top of my head straight away... Clash - Should I Stay Or Should I Go... David Bowie - Space Oddity. Both of these examples are more than 5 years too... the Bowie tune was 6, the Clash one was something like 16.

Dunno where u quoted that from TG, but it is bollocks

Originally Posted by JackSpratts

i'm a dj. i can play shows all night long, no problem, but i can't sell copies of those shows if they contain copyrighted material and of course they're stuffed with it. people try to pay me for copies and i have to turn them down, it’s too bad. even there if i pushed it i might be able to work out a deal and get the proper licenses…who knows? - js.

I know... and you can, but as u said, u need to aquire the licences.

This doesn't happen with pop music generally because the licences would cost more than you would ever make, but certainly in the world of house and techno music it happens.

Also depends how much money you're trying to make out of it... there isn't much to stop u gigging to 300 people and selling ur own mix cds... it's unlikely you'd be caught if u were smart enough.

[Mazer]

Originally Posted by ~XIX~

I disagree... I'm sitting on tunes up to a decade old, and they are not limited by their style, and they haven't been made commercially available. There is a massive difference between 5 years from completion to 70 years after death. The 70 years after death is like a 'just in case' clause... if some guy dies at 30 surely his family should be able to get some benefit from his work if it is commercially successful after his death? If not I feel you're really opening the floodgates to some very seedy and unfair business practices.

Anyway, there are plenty of examples of music making far more money a number of years after release. I can think of two off the top of my head straight away... Clash - Should I Stay Or Should I Go... David Bowie - Space Oddity. Both of these examples are more than 5 years too... the Bowie tune was 6, the Clash one was something like 16.

Dunno where u quoted that from TG, but it is bollocks

I aggree to a point. The Pirate Party platform TG quoted is more like a list of grievances than actual demands, but if they only accomplish part of their goal then it's at least a step in the right direction. Copyright terms shouldn't be shortened to just 5 years in my opinion. And you're right, if an artist should meet an early demise then his copyrights should last for a little while longer. However, if copyright was implimented as it originally was, with a fixed term of 14-28 years, that would leave plenty of time for musicians to cash in on their work, even those who die young. Think about it: fads only last a few years, and the classics rarely last more than 30. After that how much profit can you expect to get out of such old music? I know the rock dream is to record a few hits and retire young, but at some point these people need to grow up, stop living off of royalties and produce some more content, or get a square job.

[TankGirl]

A coalition representing over 500 Canadian artists has now also raised its voice in an open letter demanding better access to contemporary works of art in order to use them as raw material for new art.

The Coalition offers three principles that it argues must ground Canada’s copyright policy:

FAIR ACCESS TO COPYRIGHTED MATERIAL LIES AT THE HEART OF COPYRIGHT. Creators need access to the works of others to create. Legislative changes premised on the “need” to give copyright owners more control over their works must be rejected.

ARTISTS AND OTHER CREATORS REQUIRE CERTAINTY OF ACCESS. The time has come for the Canadian government to consider replacing fair dealing with a broader defense, such as fair use, that will offer artists the certainty they require to create.

ANTI-CIRCUMVENTION LAWS SHOULD NOT OUTLAW CREATIVE ACCESS. Laws that privilege technical measures that protect access to digital works must be rejected. The law should not outlaw otherwise legal dealings with copyrighted works merely because a digital lock has been used. Artists work with a contemporary palette, using new technology. They work from within popular culture, using material from movies and popular music. Contemporary culture should not be immune to critical commentary.

“Artworks that use appropriation have a long and well documented place in the history of art” notes Sarah Joyce, a signatory to the Open Letter. “These works are collected and exhibited in major cultural institutions across Canada and throughout the world and yet artists express this form of creativity under threat of the law. To silence this valid form of creativity is tragic. That Canada’s laws do so is simply wrong.”

“Canada’s art community has not been consulted on the implications of possible copyright reforms,” states Gordon Duggan, another of the Open Letter’s signatories. “We are creators, and we rely on copyright laws for our livelihood. Yet, to my knowledge, the needs of Canadian artists have never been a consideration in copyright policy debates. It is time that changed. The sheer size and makeup of this coalition relects the level of dissatisfaction within the art community. These changes are set to lock Canadian art into a very narrow idea of what the Government wants art to be rather than reflecting the reality of contemporary Canadian art.”

Some discussion on the topic available in Slyck.