There was a very interesting opinion piece by Victor Keegan in the Media Guardian today. It’s worth reading the whole thing of course, but I’ve excerpted it to give you an idea here.

It’s certainly no stretch to see just how this impacts recorded music as much as anything else…

Is copyright getting in the way of us preserving our history?

The issue of copyright is a global nightmare for anyone interested in digital preservation

Historians 100 years hence will have an abundance of source material about how ordinary lives were lived during the 21st century thanks to the unprecedented way we leave traces through websites, email, Twitter and social networks such as Facebook.

Well, that’s the theory. In practice, most of this living history will be discarded in digital dustbins unless something is done about it. We are often told that, thanks to startling improvements in technology, all our personal memories will soon be able to be stored on something the size of a sugar cube. But the granules that make up that sugar cube are widely scattered and difficult if not impossible to recover.

It is reckoned that the average life expectancy of a website is less than 75 days and that at least 10% of UK websites are lost or replaced with new material every six months. These figures come from a statement by the British Library at yesterday’s launch of the UK Web Archive, which will guarantee access in perpetuity to thousands of hand-picked UK websites – some of which might otherwise have faced oblivion.

They include Antony Gormley’s Trafalgar Square Fourth Plinth Project. This involved 2,400 participants, and the live stream by Sky Arts would no longer have existed online from next month had the BL not taken over responsibility for it. Other projects to be preserved for posterity include a record of the Credit Crunch and the 2010 general election.

The British Library has trouble sourcing even the most popular works from the major record labels, who still cite copyright reasons (though institutionalised entropy is probably more to blame) for not routinely making copies available for permanent archiving.

Worse still, the vast majority of the recorded music in the vaults of those labels, the provenance of which could well be unclear or problematic – and the condition of which is both unknown, but certainly deteriorating – is entirely off-limits to the archivists of culture and heritage.

The article ends:

It is sometimes argued that if copyright law is standing in the way of a universal archive then maybe the world’s collective memories should be placed into some kind of escrow account, not to be opened until copyrights have been sorted out or expired. This sounds plausible, but it would act against the worthy principles espoused by the British Library and others that as much as is humanly possible should not just be available but available now.

And if this is true for websites, it’s true also for books. And if it’s true for books, it’s true also for records.

And I would go one step further… and that’s to argue that the case for the digital public archiving of recorded music is of particular urgency – if only because the magnetic tape on which the vast majority of recorded masters reside are falling to pieces as we speak.

Remember folks, thanks to 11 copyright term extensions in the past 40-some years, more than 98% of all works in copyright are ‘orphaned’ — still in copyright, but no one knows to whom they belong.

But the legal changes introduced in the years after Fahrenheit 451 did more than just extend terms. Congress eliminated the benign practice of the renewal requirement (which had guaranteed that 85% of works and 93% of books entered the public domain after 28 years because the authors and publishers simply didn’t want or need a second copyright term.)

And copyright, which had been an opt-in system (you had to comply with some very minor formalities to get a copyright) became an opt out system (you got a copyright automatically when you ‘fixed’ the work in material form, whether you wanted it or not.) Suddenly the entire world of informal and non commercial culture — from home movies that provide a wonderful lens into the private life of an era, to essays, posters, locally produced teaching materials — was swept into copyright. And kept there for the life of the author plus 70 years.

The effects were culturally catastrophic. Copyright went from covering very little culture, and only covering it for a 28 year period during which it was commercially available, to covering all of culture, regardless of whether it was available — often for over a century. Unlike Fahrenheit 451, the vast majority of the culture swept into this 20th century black hole was not commercially available and, in most cases, the authors are unknown. The works are locked up — with no benefit to anyone — and no one has the key that would unlock them.

We have cut ourselves off from our own culture, left it to molder — and in the case of nitrate film, literally disintegrate — with no benefit to anyone. The works may not be physically destroyed — although many of them are; disappearing, disintegrating, or simply getting lost in the vastly long period of copyright to which we have relegated them.

But for the vast majority of works and the vast majority of citizens who do not have access to one of our great libraries, they are gone as thoroughly as if we had piled up the culture of the 20th century and simply set fire to it; and all this right at the moment when we could have used the Internet vastly to expand the scope of cultural access.

Fahrenheit 451… Book burning as done by lawyers

(Via Boing Boing.)

I went to Manchester yesterday to speak with David Sanjek – former head of archives at BMI in the US, now a professor at the University of Salford.

We ended up talking for three hours over coffee and covered everything from the history of music copyright in America to the effect of digitalisation on the practice of archiving. There’s a lot of information to sort through, and a lot of very helpful leads to follow up on.

But I thought I’d give you a taste of the conversation – which included some real eye-opening revelations.

David reassured me that the boss of any record label could demand an inventory of all that label’s assets at any time and be sure of its comprehensiveness. But a stocktake might reveal a slightly different picture.

In brief, his assertion is:

1) A record that is not in circulation but only exists as an archival copy in a vault effectively doesn’t exist;

2) The archival copy in the vault may not exist either.

In other words – it’s worse than we thought.

However, since there is, at present, no legal or (theoretically) economic imperative to make these recordings available, it’s not really considered to be that much of a problem. Culturally speaking, of course, it’s a disaster.

Have a listen.

Lawrence Lessig discusses the Google Book Search decision. It’s not much of a stretch to imagine the parallels to recorded music. Except to say that Google isn’t even attempting to do this with recorded music…

We talked about all of the music that’s sitting in the vaults, decaying on master tapes – and Matt shared some good ideas about how this situation could be addressed, from a practical and digitally savvy perspective.

These are a couple of choice quotes from that half-hour interview, which was full of interesting insights and parallels from other cultural industries. I’ll go through the interview in more detail when I get a chance, and transcribe bits that I want to use for the book. But as I find these interesting excerpts, I’ll post them up here for you to listen to and discuss.

It was really great to talk to Matt – someone who’s given these matters a great deal of thought – and I can thoroughly recommend his book (here it is at Amazon).

I’ve also just secured an interview with Dr David Sanjek, former director of the BMI archive and now Director of the Centre for Popular Music at the University of Salford. Looking forward to that one too.

You’ve heard of Earth, Wind and Fire. This is one of their hits, from an album called Touch The World, released in 1987. Never been reissued as far as I can tell. Shame to see it rot, really – especially since it raises some good questions, comments on the contemporary politics of the day and reflects aspects of the culture of its time rather well.

Thanks to Andrew B White for pointing this one out.

A few things have made me question my focus on music as the territory for this conversation recently. After all, all culture is under threat as a result of copyright conservatism in a changing media environment.

Chris Bestwick raised the point in a comment on my last post, I’ve talked about it with a few people – and a somewhat belated viewing of Rip: A Remix Manifesto earlier this evening made the point really clear.

The cultural and intellectual lockdown extends way beyond popular music into books, visual arts, academic works, medicine… and extends into the realms of international trade, global politics and genuine life and death issues.

And yet – the book in progress (not to mention this blog) is called ‘Deleting Music’ and not ‘Deleting Culture’. Why?

Well, first the most prosaic and uninteresting answer: I like music. Music is my background, it’s what I talk and teach about, and it’s what I’m most interested in. But ultimately, that’s also an unsatisfying answer. There’s more to this debate than music, and I need to acknowledge the broader cultural ramifications of that.

Second, there’s the answer that says this is an important issue and it needs to be communicated to as many people as possible. I want to talk to the people who love music – the musicians, the fans, the collectors, the independent label owners, the music educators, researchers, retailers, distributors, promoters, DJs… and if someone else could please talk to the visual artists, the biochemical engineers, the film makers, the potters, the choreographers, the architects and everyone else – that would be really cool, thanks.

I don’t want to preach a message to an audience who (quite rightly) don’t think I have any credentials or understanding in their area. My credentials, such as they are, are rooted in the music side of things – a territory I’m far more at ease discussing and debating.

But third – and I think most importantly, this book is not purely and simply about copyright reform. I am, as you may have guessed, a copyright reformist – and the purpose of this book will be as much advocacy for change as it will be a description and analysis of a cultural issue. Current copyright regimes are clearly implicated in the story I’m telling here – but that’s not the full picture of what I’m working on with this book.

There’s a genuine cultural crisis going on in the music industries. Master tapes are decaying in vaults. Original works – by artists you’ve heard of, not just obscure and irrelevant wannabes – are not being preserved. Archives and libraries are only reluctantly being supplied with copies of released material – and not reliably so.

In music, perhaps in more than any other field, culture is not merely being prevented from being remixed – it’s completely disappearing, preventing it from forming the basis of any future works or research. And it’s that, more than anything else, that I want to communicate through this book.

This is not a hypothetical problem, or merely an unfair distribution of power. Popular music culture is literally vanishing right now. Magnetically-charged metal oxide particles are falling from master tapes as we speak.

To me, that’s important, urgent – and worthy of its own book.

Techdirt ran an interesting post recently about The Myth of Original Creators. In it, they explored the Romantic Era notion of the artist as the sole creative participant in a work.

And when I say ‘Romantic Era’, think Beethoven. He was the poster child for art as unique ’self expression’ rather than art as contributing participant in a cultural dialogue with antecedents and referents.

I’m not saying Beethoven was deluded – and nor that his genius is diminished if I claim that no work is wholly original – but simply that he was making an assertion about his art that has captured the imagination, and which largely remains as the basis of our music copyright law.

But music – especially popular music – is part of a cultural conversation.

The piracy of Elvis
Peter Friedman, the law professor whose blog is quoted in the Techdirt article, cites the case of Robert Johnson. As he points out, Robert Johnson didn’t sell his soul – he just listened to what was going on around him, developed some ideas and was recorded.

In other words, he was no more the ‘originator of the blues’ than Elvis was the ‘inventor’ of rock and roll.

Both men took elements around them, engaged in the conversation, and fashioned those elements into something that had not previously existed in that way. Nobody’s denying the creativity or genius that goes into it – just that these things don’t happen in a vacuum.

And you can’t bake a cake without ingredients.

The locked ingredient cupboard
Unfortunately, because of the power of that Romantic notion of the lone genius and the fact that it’s been crystallised in copyright law – which, for interests with which we are now entirely familiar, enforces the myth of original creators – most of the ingredients from which we could make more popular music culture are locked away in vaults.

Tapes, mostly – and they’re decaying rapidly. Most of them will never see the light of day for the simple reason that the corporate owners of those vaults cannot imagine a way in which investing in releasing and ensuring the availability of those works will turn a profit.

And since music is, for them, purely a commercial interest, the cultural, communicative and ‘conversational’ component – and the potential value of those works as springboards into other, possibly significant cultural works – is entirely overlooked.

For that reason, the ideal of musical composition as solely an artistic, cathartic and personal endeavour that is simply an expression of the creative outpouring of the artist – and which may or may not be shared with an audience – is problematic.

Not only does it (inadvertently, perhaps – but inescapably) serve the exclusive corporate interests of the ‘music purely as commerce’ brigade, but it also denies the very real fact that music is culture – and that the seemingly inevitable disappearance of that culture is not only tragic but, because it is entirely avoidable, criminal.

Music as Lone Works of Genius vs Music as Culture
Put simply, copyright law assumes that creative works are either wholly original, or they represent theft. That idea is nonsensical, because no works are wholly original. Because significant corporate interests are based on that framework, works that are under copyright but which are not commercially viable are dead works – stolen away and left to rot.

This stolen past – conservatively estimated in the region of 90% of all recordings ever released – could seed a massive, profound and important shift in popular music culture – like the birth of the blues or the genesis of rock and roll. Or it might just inspire a few good dance tunes. We just don’t know.

But what we can be certain about is that our stolen musical heritage cannot hope to contribute to culture where it is now – and that’s important.

Dwele’s tribute to Michael Jackson is the most honest and authentic expression marking the passing of the pop legend I’ve yet seen.

Essentially a cover version, but with no reasonable cause for publishing claims or financial transactions to take place. This is simultaneously an artistic expression and cultural communication of something for which there aren’t any right words.

It’s pop music by an important recording artist, using the intellectual property of another.

But it’s not commerce.

Roly Keating delivers his keynote speech at FOCAL

Late last year, I was involved in a research project with the BBC’s Audio and Music Interactive Department. It was about how specialist music fans connected with the BBC with regard to that kind of programming.

You can read what we came up with as a result of that research, but for me, one of the key lessons was the problem of the word Broadcasting as a defining and totalising concept for the BBC – that is, the British Broadcasting Corporation.

Because the BBC’s role, in a digital sphere, is no longer simply about making content and pushing it out there to audiences. It’s about acting as a resource for public media. That’s not to say they shouldn’t do broadcasting – but that the broadcasting should be part of a bigger concept of British Public Media (and BPM’s got a nice ring to it, doesn’t it?).

The way in which the public uses media – including music (which is a media form, a topic I’ve discussed elsewhere) – is no longer simply as ‘audience’. And because of that change, the BBC is heavily implicated in accommodating that change.

Part of that change is about archives. How media are preserved, how they can be accessed and how they can be used as a springboard into new creative works.

I was very interested to see Roly Keating’s first keynote speech since being appointed as the BBC’s first Director of Archive Content. Video of the speech is definitely worth a watch.

Importantly, he says:

[We want to] position the BBC as still, we hope passionately, a broadcaster – still doing those great schedules night after night, still galvanising audiences, bringing people together, being the soundtrack of lives and so on – but being more than a broadcaster: also emerging in some sense… as a resource for the nation.

Keating makes the point that this is a long-term project, rather than a quick fix – and underlines the fact that this will require strong partnerships across commercial and public media industries. I’ll be interested to see the role music will play in this resource – and the extent to which recording companies drag their feet or outright refuse to cooperate with such a venture.