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On Friday, March 5, Leslie, Heather and I attended the first panel discussion entitled “Who is Right? Comparing and Contrasting the Interests of Artists/Broadcasters, Assignees, Academics, and the Public“.

The first panelist was Kimberliann Podlas, a Assistant Professor of Law and Media Ethics from UNCG. Kimberliann asserted that in the war on illegal downloading of music, (which the music industry asserts is “threatening the very nature of the industry), there are not just two camps in the battle but three. The music industry, the consumer, and the artist all have a stake in the outcome. The industry speaks as though it is aligning it’s interests with those of the artist, but artists may frequently WANT to push their music out for free. (Radiohead’sIn Rainbows experiment with putting its music out for free and allowing the user to pay whatever they want was used to describe this method.) While music business interests are: Sell lots of music, and don’t have anyone steal it, and the savvy consumer is a potential threat, the artists interests are not to malign the consumer because they just want to get lots of music out there. The I-tunes experiment has found that if music is legal enough/cheap enough/convenient enough, people will pay. This behavior has now become the norm. But while digital downloads have increased, I-tunes has also increased the price charged from .99 to $1.29 a song. The increase in price does NOT add any extra money into the artists pocket, it all goes to the business.

In digital distribution, the cost of creation and distribution go way down. CD Sales are dropping while in 2009 1.1 BILLION songs were downloaded. Individuals can now purchase only the songs they want (two tracks per album) instead of buying the whole thing for $20. There is now a coalition of artists who are trying to battle business interests to change the royalty contracts to provide for better balance. It reminded me of the conversation about open source publishing where faculty can retain more of their rights if they just say “no” to the first contract.

The second speaker was Professor Rothkopf who spoke on behalf of the artist. He is the interim Dean of Music at UNCSA. He stated that copyright law encourages the exchange of ideas, maintains artistic integrity and supports revenue streams. The majority of the 1.6 million artists in the USA support themselves by doing their art, teaching their art, and promoting their art. Not too many actually make a ton of money that allows them to be affected by the position of the recording industry or I-Tunes. An interesting point he made is that all of the musicians he knew had material that they’d created that they could never perform publicly because there were elements of the piece that could be considered copyright infringement. Musicians frequently will not, can not or do not seek permissions in these circumstances and so the music just never gets played Copyright can restrict free expression among the working artist if they can’t or won’t obtain permission. In the arena of copyright, where exchanges of ideas are battling artistic integrity, he hopes that there will be a safe space created that will allow for both.

The third and final panelist Roberth Monath, is an attorney an intellectual property lawyer at Monath Law Firm. (And if his life was ever made into a movie he would be played by Will Ferrell.) He discussed the myriad copyright licenses that are involved in production of a musical release. In response to Ms. Podlas’ assertion that the music industry takes too large a cut without sharing it appropriately with the artist, he related that it is frequently the case that studios invest $200,000 to $400,000 in the production of an artists work, assuming the risks that their “product” will sell. Now that people are not buying full length CDs anymore, (at $20 a pop) but is instead purchasing the content on I-Tunes $1.29 at a time, that business model that supported that up front cost is collapsing.

In order to simplify and further untangle the myriad of copyright issues in the music industry, he: a.) supported moving copyright under a single circuit court instead of having copyright cases heard in many different circuits. b.) realizes that net neutrality is a benefit of our society, but would like to find ways to cut down on the infringing uses, and enable enforcement of law. c.) wants international reciprocal enforcement of copyright law. and d.) would like a global copyright law to be agreed upon.

In the Q&A that followed, I asked if there was any guideline that exists to help us determine if faculty requests for music to be put on reserves is an infringement or allowable. Lolly Gasaway was invited to answer, though she was not a part of the panel. She said we have to wait to see what happens in the Georgia case. That there is no caselaw that defines what is allowable as yet. So we don’t know the answer because there isn’t one.