FAIR USE AND DIGITAL TECHNOLOGY: A MUSICIAN’S PERSPECTIVE

By Alex Oh, posted on 2 December 2016

As a musician, digital technology can be both a boon and a bane. On the one hand, it helps me create my work and gives me a bigger platform for its exposure, but on the other hand it also facilitates its infringement. It’s bad enough when digital technology provides the means for people to take my music or offer it to others without my permission or knowledge. That’s outright theft as I see it. But when digital technology is combined with excessive fair use exceptions under copyright law, the taking becomes legitimized as a matter of policy.   That’s economically unfeasible for creators, and governments around the world need to remember this when they contemplate rights reform if they value our contributions to society and its store of wealth.

I’m both a composer and a recording artist. I’m lucky enough to make music for movies, in my case usually involving full orchestras as part of the process, and I’ve had the good fortune to score 18 feature films produced in Singapore, Australia, Taiwan, and the United States. It’s a labor of love, and one that’s intensely satisfying. When I was first starting out, it was considerably harder and more expensive to produce a soundtrack. Analog technology was limiting, and allowed me to do only so much on my own. I had to compose and demo my music one instrument at a time, and in real time. I had to involve other people in the trial and error that led up to the recording session where it all came together. That slowed things down and increased my costs.

Nowadays though, there’s almost as much technology and instrumentation available to me in my computer as there used to be in the studio. This allows me to compose and experiment with a variety of sounds and instrumentation all on my own before involving anyone else. I can get things pretty much just the way I want them before calling in the orchestra. Digital technology facilitates the process and enables me to create more efficiently and cost-effectively. That’s important because at the end of the day the music business is just that: a business. And as a businessman, I’m happy whenever my revenues exceed my costs.

Digital technology also helps me to promote and expose my music to a wider audience than just the movie-goers in the cinema. Through the wonders of the internet I can, and do, make my music available to the public whenever and wherever I want. It helps me to promote myself and my creativity in ways that I never imagined, and this is true for most musicians. We crave the exposure because we want as many people as possible to legally enjoy the music we create. Legitimate consumption is the essence of how we (are supposed to) get paid for the work that we do.

As creators, we should be able to determine how, when, and on what terms our music is made available and this is where copyright laws come in. Copyright protects us in this respect by according composers and musicians exclusive rights to the communication, public performance, and reproduction of their works. So when someone enjoys our music, these rights help us monetize that enjoyment so that we can all earn a living. That’s how the industry works, and it provides the incentive for me and my colleagues to stay involved. Digital technology can also facilitate that process by allowing better identification of my music around the world and a more precise determination of the royalties due to me from its sale or performance. Theoretically, at least, the combination of digital technology and the copyright law should be a good thing for composers and musicians in economic terms.

Unfortunately, digital technology also makes it a lot easier for people to take and use our music without our consent. Some people think that music, and movies, and book, and software are theirs for the taking just because they can find it on the internet. Political parties have been formed on this premise, and emotions can run high when it’s discussed publicly. People that would never think of stealing a television set from a store, or a car from the street, sometimes don’t think twice about stealing other people’s music, and they zealously rationalize taking it as their ‘right.’

The music industry has devoted significant time and resources combatting digital piracy, while at the same time appealing to consumers to value creativity by accessing music legally. For more than 15 years now, music creators and performers have been devastated by unauthorized downloading and streaming sites that allow the theft of our music with just a click of the mouse, and without any loss of quality to the product in the process. Needless to say creators don’t get paid when that happens. This is bad enough when the behavior is patently illegal. But when copyright protection is purposefully relaxed as a matter of policy through excessive limitations and exceptions to those exclusive rights, it becomes even worse. That’s where fair use and fair dealing can present an even bigger problem.

The fair use doctrine essentially amounts to a permissible defense typically determined by the courts, to behavior that would otherwise be infringing if done for purposes deemed beneficial to society, such as criticism, commentary, news reporting, teaching, or research. Fair dealing, by comparison, explicitly permits a certain degree of non-consensual use of copyrighted works under prescribed and limited circumstances. But regardless of what it’s called or its underlying intention, the practical effect of these limitations, exceptions, and defenses is that creators don’t get paid for certain uses of their works. It amounts to a policy determination that my rights to my property fall short of society’s right to use it without paying me. It’s a concept that I don’t think has a corollary in many/any other industries.

Fair use and fair dealing were already detrimental to creators during the old analog days when the world was a smaller place and when copyrighted works weren’t as widely distributed or made available as they are today. Serial reproduction and secondary use of music typically resulted in a degradation of its quality. But in a digital world every reproduction is as good as the master, and every performance is as crisp as the original. Much like copyright theft, excessive ‘fair use’ of copyrighted works facilitated by digital technology can thus disrupt the market for those works and threatens the continued health of the creative economy.

Singapore recently initiated a public consultation on proposed amendments to the Copyright Act. Unfortunately, most of the 16 specific proposals contemplate even further exceptions and limitations to creators’ rights than the 28 already provided under the Act. Australia is in the midst of a similar process. The discussion in both territories has been framed by some on the premise that fair use and fair dealing actually helps foster innovation and creative output. The policy implications signal a further message that copyright gets in the way of economic development and societal progression.

But most creators, including me, don’t see it that way. Comprehensive research published in September by Dr. George Ford and his colleagues at the Phoenix Center for Advanced Economic and Legal Studies in Washington, DC entitled Fair Use in the Digital Age observed that while fair use will in some cases serve societal interests which creators cannot be reasonably expected to further, the purpose of copyright itself is to provide adequate incentive for the creation of new works, and that courts and society must evaluate fair use with a close eye on its effect on creators’ incentives. I’d recommend that policy makers here in Singapore take a close look at his reasoning before making any decisions.

Dr. Ford’s subsequent article Fair Use Does Not Mean a Fair Market opines that in order to truly stimulate creativity policymakers should instead focus their attention on reducing copyright theft. He argues that any discussion of expanding or altering provisions related to copyrights exceptions and limitations must be accompanied by better enforcement of copyright than presently exists. More specifically, Dr. Ford observes that “Intellectual property laws support substantial economic activity and rouse the creative energies of humankind. Stakeholders seeking to modify them are within their rights to advocate for their favored outcomes. Emotional positions are certainly influential, but if net improvements in society’s well-being are the desired discourse on policy must eventually turn to rigorous, analytical, and credible research. Intellectual property laws deserve nothing less.”

In my view, so do Singapore’s creators. If we want to encourage a new generation of composers and recording artists to hone their crafts here, we need to value and respect their contributions and output. The way to do that is to enhance the levels of protection and give them a better opportunity for a fair return on their output. Further exceptions and limitations to creators’ rights in the name of technological innovation are not the way to promote and protect the creative industries in 2016.

Alex Oh is a prolific Singapore-based film composer, music producer and pianist. In a career spanning over a decade, he has scored many award-winning feature films in Australia, Singapore, Taiwan, and the United States, along with more than twenty television series.