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Intellectual Property Law & The Music Industry
Intellectual property can be found in industrial, scientific, literary and artistic fields. They can be a range of things including poems, novels, musical compositions, inventions, etc. They are known to be non-exclusive because they can be used by many people at the same time, in many different places. This essay looks at the issues surrounding intellectual property, paying particular interest to the downloading and use of music from the Internet through different means of hardware and software. Whether this is a computer crime or whether this infringes the Intellectual Property rights of the owner will be discussed and debated in detail.

Making an original piece of music can be time consuming and very costly. Distribution and marketing of this piece of music will also carry hefty expenses. The artist or company that this piece of music was composed by would rightfully want royalties or profits to come out of this composition. The owner would like to be able to carry on making more compositions. However, if the sales of these albums do not bring in enough profit, the artist may not be able to afford making such compositions again.

Computer technology has made it extremely easy for users to download and copy music from the Internet. This can be done in many different ways. Compression formats such as MP3 make music files small enough to download, copy and store by taking away extracts so small from the music that they are barely noticeable if gone. “The late 1990s saw the emergence in the computing market of a new standard for compressing audio signals previously used in the film industry--MP3. MP3 is a file compression format that reduces the size of audio files by a factor of 10-12, making it possible to download a song via the internet in a matter of minutes.” (P. Duquenoy, et al, 2005). This leaves the music with the same quality, yet making it easier for users to download. Peer-to-peer technology is another form of transferring music amongst a large number of people over the web, without any centralised server.

Many artists believe that the availability of music downloads helps them get their music out to a wider audience but the problem they are now facing is shareware programs, this is where users share files on their own computers with other users all over the world using the Internet, which in turn makes it available for people to download. “By 1999, MP3 players were being manufactured and sold and hundreds of websites had appeared making thousands of songs available for download in the MP3 format. By far the most well known of these was Napster.” (P. Duquenoy, et al, 2005). This procedure makes it hard for artists to make a living as they will not make as many sales, if one person buys an album but then makes it available for millions of users all over the world to download via the Internet, the sale of this one album will hardly cover the costs of making it. Intellectual property law covers copyrights, patents and trademark rights. Internet users should be made aware of these regulations by shareware or peer-to-peer programs, as this would be socially and morally correct. If users do not have the understanding of these laws then how can there be a reduction of the illegal download of music. It is classed as illegal because the user does not have the artists’ clearance. When installing many peer-to-peer programs they usually have an user agreement but it can be argued as to how many people actually read it and understand what they are agreeing to, well it is simple because it is very rare, having asked 20 people in the university who use shareware programs only one person said they read the user agreement before accepting to the agreement. Protecting intellectual property and defining who the owner is and who the creator is of the piece of music has become extremely difficult and problematic. It can be questioned that once the owner/creator sells an album, is it now not the buyer’s property? Does the new owner of that album now not have the right to do whatever they wish with that piece of music? Is it a crime if they upload this music onto the Internet and distribute it to a wider audience? The creator of the music piece restricts the user from doing so by making the buyer enter a licensing agreement of the copyrighted the album, limiting the use of that album to just the buyer itself.

However, these albums do end up being distributed to very large numbers of people, through different means, as mentioned in the above paragraphs. Not many people pay heed to this copyright act and have found easy ways of transferring and distributing the music. This creates many ethical and legal questions, for the creator of the music, and for the general public who buy and use these albums, whether this is done legally or illegally. Napster started a service where users were able to download music from other users’ hard disks in mp3 format. This was probably the beginning of the mp3 revolution. By the end of 2000 it was reported that approximately 98 million mp3s were downloaded since the launch of Napster. After record industries started to realise the impact of what Napster had created, they came down with heavy law suits which eventually made Napster shut down as they could no longer cope. Not long after Napster came KazaA. A different method of distributing and sharing music files was adapted by KazaA to avoid falling in the same pit as Napster. “By 2002, about 200 million copies of KazaA Media Desktop had been downloaded, and by the third quarter of 2002 its monthly user base was about 9.4 million” (Quinn, 2004). In the media there have been many arguments between intellectual property and music download and it goes far beyond what is right and wrong. James DeLong (1997) argues in defence of intellectual property, “defending ownership rights in terms of value. He observes that unless we have clear ownership rights, and unless we pay for the goods that we need, those goods will become devalued and abused. Having to pay for things forces us to think what is really valuable and what is not. If all goods were free, these goods would be abused and diluted. History and experience has taught us that people do not value things that do not have ‘value’ (that is, which are cheap or free). The abuse of free things, such as land, air, and water has already led to serious environmental degradation. Similar tragedies could arise if property rights are diluted and ownership shifts too dramatically from the private to the common.” (Quoted from; P. Duquenoy, et al, 2005). Realising the effect the sharing of files through the Internet had on the music industry, the Digital Millennium Copyright Act (DMCA) was designed. The DMCA made a significant impact on fair use of copyrighted material, an increase of penalties for copyright infringement. The Act coming into place made it illegal for consumers to make copies of any digitally recorded work for any purpose. The Act also included that it is a crime to circumvent anti-piracy measures built into most commercial software. It also outlawed the manufacture, sale or distribution of code-cracking devices to illegally copy software (except for the purpose of encryption research, or to test the security of systems). The DMCA also made it a requirement for webcasters to pay licencing fees to record companies. (P. Duquenoy, et al, 2005). On 9th March 2004 a law was passed by the EU, stating anyone who violates intellectual property rights in regards to music downloads will be prosecuted, this law was mainly passed to target professional counterfeiters. The Minister of Culture of Brazil stated in a news conference that they would consider changing the law of intellectual property rights so it coincides with modern day technology. "We will modernise copyright and other forms of protection of intellectual property rights so that they are appropriate for the digital age”. - Gilberto Gil - Minister of Culture (Brazil) This would have a huge impact on the music industry if laws became more lenient on music downloads and allowed Internet users to use peer-to-peer shareware programs to distribute music without the proper consent from the artists. Artists would not receive royalty fees from any songs downloaded and album sales will decrease and this will damage the record industry in general.

It can be concluded that the downloading of music by the above mentioned means is a computer crime. However, this issue is a lengthy and debateable issue. On the one hand, the music industry is losing a lot of money by the downloading and share of these musical compositions, whereas on the other hand, governments are beginning to realise the impact of modern computer technology and are looking for ways to amend the current law in order to accommodate both the needs of the music industries, and the consumers of these products. It can also be said that, even if the government look for ways to try and completely ban the download of illegal music, there will always be new technology appearing which will be able to by pass the laws.

Bibliography

Quinn, Michael (2004) Ethics for the information age, Addison Wesley

Gilberto Gil - Minister of Culture (Brazil). http://news.bbc.co.uk/1/hi/technology/4348970.stm - last accessed 12/11/2006

Penny Duquenoy, Simon Jones, Harjinder Rahanu, Dan Diaper (2005) Social, Legal and Professional Issues of Computing, Middlesex University Press Limited