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.

I was actually going to lay off the New Zealand stuff for a bit. Cultural history, localism and identity are going to be major themes in the book, but I planned to mix it up a bit in the blog. However, a good case study has pretty much fallen into my lap in the last few days, and it would be a shame to let it pass.

This story – just to lay all the cards on the table (and underline just how small New Zealand is) – comes from within my own family. Mark Loveys (pictured left, with the Dr Who look going on) is my sister’s partner. He was in a band called Satellite Spies who had a major NZ pop hit in the mid 80s called Destiny in Motion, which Mark wrote.

Throughout May, for New Zealand Music Month, I put one NZ music clip a day up on my personal blog, and I thought it would be cool to put Destiny in Motion up there – far and away Mark’s biggest hit (but far from his only single).

However… when it came time for the video to go live on my site, it disappeared from YouTube. Mark picks up the story…

Mark: You might recall that Satellite Spies was initially a 2-man band consisting of myself and Deane Sutherland. I was the singer, songwriter & bass player. Deane was the guitarist and did backing vocals. All the songs on the Destiny in Motion album and all the songs that we played at that time were written by me – mostly during the time of my previous band – Blasé.

During the peak of Satellite Spies’s time in the spotlight in NZ (following strong airplay of Destiny in Motion and being support act for the nationwide Dire Straits’ concert tour in 1986), the excitement of being popular went to Deane’s head in a destructive sort of way. Without getting in to details, this led to all sorts of conflict with fellow musicians, band management, the record company and general music industry people etc.

Eventually I had to sit him down and give him the hard word to sort his behavior out. Deane immediately took the “stuff you” approach and quit the band.

That left me in the lurch a bit, because we had an extensive nationwide tour booked to go in a couple of weeks which was too close to cancel (and too expensive to cancel, given the advertising already spent). Fortunately I was able to hire Brett Adams (of the Mockers) to join the band for a while, along with Tim Wedde (also Mockers) for keyboards. Gordon Joll was by that time a full member of the band as our drummer. The tour (suitably named “Living in a Minefield”) went reasonably well and the audience hardly noticed Deane missing – mainly because Brett looked very much like him with the black curly hair and leather jacket look etc.

After this, Deane disappeared and we lost contact completely. Satellite Spies went through a further few line-up changes (due to the fact that we were borrowing people from the Mockers & DD Smash etc) and then settled long term on the combination of Gordon Joll on Drums, David Curtis on keyboards, Eddie Pausma on guitar and myself on bass & lead vocals. We continued touring, recording and playing live around NZ until around 1989, when I got caught up in software development and decided to give music a rest for a while…

A few years later, (I think around 1993) I started getting calls from people saying they heard my band was playing again. Furthermore I started getting the story from friends that they went to a “Satellite Spies” gig and it was a totally different band to what they were expecting. Basically, Deane had appeared on the scene with a new band he was calling Satellite Spies. When I called him about it, he said that he’s registered the trade mark of “Satellite Spies” in NZ and Australia and it was now legally his property.

At the time, I thought that what he was doing was too ridiculous to get away with and that it couldn’t last long. I also received advice that fighting the trade marks would be expensive and difficult, especially since he was now using the name and I wasn’t.

In hindsight I should have fought the trade marks back then, because he kept on doing the Satellite Spies thing for many years since then. He got constantly ridiculed in the music industry and people who realized what he was doing – but he’s thick skinned and carried on regardless. Satellite Spies under Deane reverted to a covers band from what I’ve been told. He did release a single called “it must be love” and managed to buy up enough records to put it on the charts – but it never got much airplay, thankfully.

Over time I realized that after all the damage done to the name Satellite Spies by Deane would prevent Gordon, Dave, Eddie and myself from being able to use it again – which is a pain.

Recently I heard that someone had uploaded Destiny in Motion onto YouTube. The kids and friends at work thought it was cool (perhaps funny and interesting etc), so I got enthusiastic about the idea and loaded another 6 videos of our other singles up there. I also set up a little web site called http://www.satellitespies.net.nz with some photos and links to the videos and MP3s etc.

Deane has obviously noticed these and realizes that most of the videos don’t include him – which negates the story that he has been perpetuating that I quit Satellite Spies and he was the one that kept it going, not me. He’s continued running his version of Satellite Spies over the last 20 years and lies that it is the original band that I quit. Rather embarrassing for him to have the evidence on show, so he has sent a letter to YouTube claiming Copyright violation and spooked them into removing all the Satellite Spies videos. Trying to shut down history in my opinion.

I have since lodged a counter claim letter to YouTube and they say they will reinstate the videos within 14 days unless Deane (through his company SERL Science Research Trust Ltd) files a court order against me. This will be interesting. I will gladly go to court and overturn his fraudulent trade marks if pushed any further.

In the meantime I’ve loaded the Satellite Spies videos onto http://www.metacafe.com and linked these back to my little website http://www.satellitespies.net.nz. I wonder how long it will take for Deane to try and remove those?

Deane’s lawyer has also sent me a legal letter demanding that I close down my little web site too – but I have written back saying that his trademarks won’t stand up in court and so I will ignore his demands.

Deleting media to construct fake memory
And that’s where things stand at the moment. Mark’s not trying to make money out of the music, but he takes issue with the idea that part of New Zealand’s pop culture history can simply be deleted or hidden away for the sake of commercial gain. Deane may be trying to rewrite history, but the ‘inconvenience’ of media sharing sites makes it all very difficult.

For reference – here’s the song, and the video. See if you can work out whose band this is – or, to put it another way, which one’s Hall and which one’s Oates:

Satellite Spies (the ‘trademarked’ Deane version) seem to be planning to release and tour in 2010, and in order to build on the story of being a classic kiwi pop band, are eradicating all evidence that actually, Mark ran the original Satellite Spies, and variations on it for some years after Deane quit.

But, most importantly, Mark owns the copyright on the song ‘Destiny in Motion’ and has permission from the owner of the sound recording and video (Glyn Tucker Jr., who released it on his Reaction Records) to use the material however he sees fit.

The only really contentious bit is the trademark, which Mark’s lawyer believes can be overturned fairly promptly. It’ll be interesting to see what happens.

But while NZ Music historians are reluctant to give the song or the band any significant role in the canon of kiwi popular music, there’s no denying that the song forms part of our collective memory and culture.

Deleting reference to it on sites like YouTube in order to tell a different version of events is, I would hope, an ultimately fruitless endeavour – even if they remove clips on the merest breath of legal murmurings.

I’ve interviewed Mark about this via Skype and will be keeping an eye on it. It’ll make an interesting case study for the book.

1) A lot of people seemed alarmed when some Flying Nun catalogue disappeared from your site. What happened?

Warner Music (WM) has taken the decision to not repress the Flying Nun catalogue on CD. As they run out of stock of a given title then that title will cease to exist physically. We were given a list of FN titles and their current stock levels. Several were already out of print and a dozen had such small stock levels that we couldn’t be guaranteed supply. To the dismay of the office we were left with no option but to remove those titles from sale. Many more will also be removed over the coming weeks/months as stock levels fall.

WM are making these titles available digitally through iTunes, however we have no digital agreement in place with WM so we’re left with no way to retail Flying Nun.

The explanation that we were given by WM was that the titles were commercially unviable and that a re-run of 500 CDs would take years to sell. From a business perspective I can’t fault this however when you’re dealing with art, and music is art, I feel there should be some level of custodianship taken into account. Also I know that for the majority of NZ CDs are still the primary media for accessing purchased music.

2) What’s the commercial imperative for a New Zealand only music website?

There is no commercial imperative for only selling NZ music. If it was only about making money I’d be selling the latest Eminem album or Ronan Keating’s Songs For My Mother. Amplifier exists because a handful of people are willing to make survival money to do something that we believe in. And that belief is in the ability and talent of local musicians.

3) I found it impossible to buy the incredibly successful Smashproof single online from the UK. Why do some record labels want to prevent audiences from purchasing music?

Territories. Universal probably only have the right to sell Smashproof’s single in NZ/Aus. And that’s fair enough as they most likely wouldn’t be able to muster the promotion for Smashproof outside NZ/Aus to warrant them signing over the rights. Unfortunately it probably also means that some kid sat in their bedroom in Herne Bay has already loaded the song up to a torrent and everyone in the Northern Hemisphere will currently be getting it that way.

We’ve been able to fill the gap for many bands in this respect. If you buy Scribe or P-Money from iTunes in the UK/US/EU/JP/CA then you’re buying it via our aggregation company DRM NZ, if you buy it on iTunes in NZ/AUS then you’re getting it from Warners. Same with Goodnight Nurse’s cover of Kelis’s Milkshake.

4) How does kiwi music connect to New Zealand identity, do you think?

Probably more so than any other country that I’ve lived in. And it’s a hard thing to define why. I guess if you ever saw a crowd react to TrinityRoots then it would be apparent.

5) What proportion of Amplifier’s sales are to ex-pats like me who want to connect to the sound of home?

A good number go overseas, though the majority are still to New Zealand. It’s getting harder to find places to buy CDs over here and online services are becoming more important.

Of those going overseas we know that a lot of them are to ex-pats though there are also a lot of people, especially in Europe, who are really into the whole roots scene down this way. We also have a large market in Queensland, Hawaii and the West Coast of America with the Samoan diaspora. The second biggest selling artist on Amplifier is the Laughing Samoans.