On the Gripping Hand

I’ve called out Campbell Smith on his creative use of English to make black appear white. Now its APRA’s turn, and specifically Arthur Baysting. This will probably earn me wrath from some sectors of the music community, to whom Baysting has been a battler of the local industry for years, but his latest effort is a little much to swallow.

I’ve mentioned Baysting before, with reference to the ‘80% of music downloads are illegal‘ rubbish. Here is an email he sent out today to APRA members:

From: noreply@apra.co.nz
Date: March 17, 2009 12:39:00 PM GMT+13:00
To: [redacted by me]
Subject: The New Copyright Provisions

Members Bulletin

The New Copyright Provisions

The New Copyright Provisions

SONGWRITERS AND THE NEW COPYRIGHT PROVISIONS

“The internet must not become a high-tech Wild West, a lawless zone where outlaws can pillage works with abandon or, worse, trade in them in total impunity.” So said French President Sarkozy in 2007 introducing strict new law around ISPs and disconnection of copyright infringers.

Do you think the new Copyright legislation will protect your future income? Two events from last week will have a significant effect on your business as a songwriter or composer.

One is the progress on the code of practice with ISPs, now in its final stages of negotiation and expected to be adopted by most ISPs this month. The code will define how well your music is protected and whether you can earn money from it in the digital environment.

The other event is the emergence in Britain of a group of high profile songwriters standing up for the rights of creators against ISPs and those who think music should be free. The Featured Artists Coalition includes artists like Radiohead, Annie Lennox, Robbie Williams, Billy Bragg, Soul II Soul etc.* The website is: http://www.featuredartistscoalition.com/

A statement from the FAC released this week says: “Google is hoping to bring to heel the last remaining outpost of resistance to the idea that music on the internet should be free – the creators of that music, the artists themselves. . . we want all artists to have more control of their music.”

This is the same fight we face in NZ. APRA/AMCOS believes that the new copyright provisions will protect the rights of songwriters and composers. But without a reasonable code – which discourages illegal file-sharing – creators will not have an effective digital business model.

This issue is particularly concerning for Maori members who want protection for their Waiata and traditional cultural practices. With no government involvement, there is no guarantee of protection.

This is why we have been in discussions with the Government, asking them to appoint an independent adjudicator or ombudsman who can rule on any future disputes.

Songwriters deserve to be recompensed for their music and for the profits made by the big ISPs like Telecom, Telstra and Vodafone who play a role in illegal file-sharing.

The recently-born Creative Freedom Foundation has been vocal about the code of practice. While their slogan “no guilt by accusation” has received support, the question needs to be asked: who wouldn’t agree to that proposition? A visit to their website suggests a slightly different agenda:http://creativefreedom.org.nz/

Here you’ll see how the Foundation denies the validity of the term “Intellectual Property”, calling it “a misnomer”. They then challenge your legal ownership of your music, stating that any song you create is not a genuine property right. According to the CFF website, your copyright is more like “a temporary monopoly”.

The language on the CFF site is similar to the EFF – the “Electronic Frontier Foundation” who are challenging songwriters’ rights in Britain. The EFF has a mutual relationship with Google, the same ISP whose tactics against songwriters has angered the Featured Artists Coalition.

The entertainment industry typically does well in hard times and it’s simply bad economics for NZ to introduce a weaker Copyright framework. The Intellectual Property sector has an estimated value of 10% of the total value of our economy and is growing every year. We can’t spend our way out of the recession. We have to earn our way to growth, and songwriters and creators want to play their part. Particularly in the international marketplace, NZ music is growing stronger. This growth should not be endangered through laissez-faire policies on copyright.

Last word to Paul McGuinness, Manager of U2:

“ the failure of ISPs to engage in the fight against piracy, to date, has been the single biggest failure in the digital music market.”

Arthur Baysting – NZ Writer/Director, APRA

APRA/AMCOS members’ comments are welcome:ahealey@apra.com.au

*Artists who have signed up to the FAC include … Boilerhouse Boys, Chrissie Hynde, Craig David, David Gilmour, Gang of Four, Iron Maiden, Jazzie B, Jools Holland, Kaiser Chiefs, Kate Nash, Klaxons, Richard Ashcroft, Sia Furler, Stephen Duffy, The Verve, Travis, Wet Wet Wet, White Lies, and many others.

Published by APRA|AMCOS. © APRA|AMCOS 2008.
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“The internet must not become a high-tech Wild West”
Well, now we know where John Key got that one, and I’m not suggesting he’s ever read anything by Sarkozy. The “strict new law” referred to is France’s 3 strikes legislation, the big labels’ new weapon of choice, seeing as how suing their customers hasn’t really worked that well for them. That’s the same law that prompted the European Parliament to say “Non”, that Germany and others have rejected but that we have in s92A. I’m more than a little annoyed that our claim to fame is that we beat the French to do something stupid.

“Do you think the new Copyright legislation will protect your future income?”
If it won’t, why has APRA been pushing for it? Hey, nothing like starting with a little Fear Uncertainty and Doubt! (even if you contradict yourself several paras down).

I note that APRA is conspicuous in its absence in making a submission to the TCF draft Code of Practice. Nothing to say there, Arthur? Ant?

“One is the progress on the code of practice with ISPs, now in its final stages of negotiation and expected to be adopted by most ISPs this month.”
Except that, without TelstraClear’s approval, the TCF cannot adopt it as binding, and without TelstraClear’s involvement – well, I guess people will have a new reason to switch ISPs, by which I mean ethical reasons such as supporting the only ISP who’s stood up and been counted.

“But without a reasonable code – which discourages illegal file-sharing – creators will not have an effective digital business model.”
Trent Reznor might disagree with you there. Not saying his is the only business model, but it is one to consider. Mike Masnick gave a presentation at midem earlier in the year about Reznor and NIN’s marketing approach for Ghosts I-IV. Radiohead also comes to mind.

“This is why we have been in discussions with the Government, asking them to appoint an independent adjudicator or ombudsman who can rule on any future disputes.”
This is a very recent development on APRA’s part, and a welcome one. Now if they can just make a couple of more steps towards common sense…

“Here you’ll see how the Foundation denies the validity of the term “Intellectual Property”, calling it “a misnomer”. They then challenge your legal ownership of your music, stating that any song you create is not a genuine property right. According to the CFF website, your copyright is more like “a temporary monopoly”.
Oops no, guess not. I suspect you need to chat to a (non-interested) lawyer, Arthur, because that’s exactly what copyright is, under the law. (PS Chris Hocquard’s ownership of amplifier.co.nz does not, in my opinion, make him “non-interested”. Not questioning his credentials as a lawyer, but he definitely has an interest)

“The EFF has a mutual relationship with Google, the same ISP whose tactics against songwriters has angered the Featured Artists Coalition.”
Say what, now? First point – Google, unless I missed a new release from Google Labs, is not an ISP, mmmkay? They’re a lot of things, and more every day but, even under the new legislation, I don’t think they’re an ISP. They’re a content provider, sure, they host blogs, sure, they host videos via YouTube, sure. But that’s all covered under s92C. The TCF Code is about s92A, as is the protest. There’s stuff wrong with the whole of s92, in my opinion, but that’s a fight for the next round.

Second – that’s a gross misrepresentation of the EFF, which has taken Google on as many times as it’s agreed with them, especially over privacy. The reason the EFF’s definition of copyright is similar to the CFF’s definition is that THAT’S THE LAW, in the US, here and anywhere that’s part of the Berne Convention, or TRIPS.

Thirdly – that’s also a very warped and mistaken view of FAC’s position. They believe that:

• artists should retain ultimate ownership of their music
• all agreements should be fairly conducted and transparently accounted
• rights’ holders should have a fiduciary duty of care to the originator of those rights and must always explain how any agreement may affect how their work is exploited.

In case you missed it, Arthur, it’s the music labels that the FAC holds responsible, not the ISPs. They believe the above will be achieved by:

• changing artists’ approach to agreements
• changing the recorded music and technology companies’ treatment of artist rights and incomes
• up-dating laws to reflect the new music landscape.

and, to do that they will :

• campaign for laws, regulations, business practices and policies that protect artists’ rights.
• We will stand up for all artists by engaging with government, music and technology companies, and collection societies. We will argue for fair play and will expose unfair practices.

Billy Bragg’s a-comin’ for ye, Arthur! Better head for the hills! ;-)

In fact, neither “ISP” nor “Internet Service Provider” appear anywhere on their website. Their beef is not with Google, or ISPs or the EFF – it’s with the music labels, the collecting agencies and the apparatus of the industry that they believe is damaging their business.

“The entertainment industry typically does well in hard times and it’s simply bad economics for NZ to introduce a weaker Copyright framework”
Please point to an example of this, Arthur. What’s that? You can’t find one? That’s because no-one has been suggesting this. No-one.

“Particularly in the international marketplace, NZ music is growing stronger.”
The industry talking heads, (e.g. Healey, Smith, Hocquard) keep saying this stuff and I keep wondering, well what’s the problem, then? Then, in the next breath they will say ‘but the industry is being decimated!’ ZOMG!

By the way, fellas, decimation means “1 in 10 removed”, which is 10%. Just saying.

“Artists who have signed up to the FAC include … Boilerhouse Boys,Chrissie Hynde, Craig David, David Gilmour, Gang of Four, Iron Maiden, Jazzie B, Jools Holland, Kaiser Chiefs, Kate Nash, Klaxons, Richard Ashcroft, Sia Furler, Stephen Duffy, The Verve, Travis, Wet Wet Wet, White Lies, and many others”
Glamour by association, Arthur? I have a feeling that they would not approve of your tying them to your email here. In fact, I’ve asked them in an email, so I’ll let you know what they say.

In summary, this is one of the most invalid messages from the pro-92A camp yet. Swathes of it are wrong, just completely wrong. Let’s be charitable and say that Arthur’s enthusiasm for the cause of artists’ rights has led him to mis-step, conflate matters that have no business being together, issue polemic platitudes (which I’ll grant you is not easy) and overstate the nature of the issue. Still, those he’s paid (I assume the Board members are paid) to represent should really ask themselves how good a job he’s doing.

Or I could just call “bullshit!” on the whole piece. Oh, not quite:

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They used an open source product to send it. ;-)