The Rights and Wrongs of Trading MP3 in The Singapore Context (Part 1 of 2)
As a listener and collector of pop/ independent music, I have always been undecided, at times, on the controversy surrounding the illegal downloading of MP3. From Napster to Audiogalaxy to Kazza, it seems the RIAA ( Recording Industry Association of American) is intent on shutting down these large P2P software companies that facilitate the movement and trading of files. Recently, they went a step further by suing those who possess and trade these files online, meaning, targeting the users who made P2P possible. A 12 year old kid made news after given being sued for downloading MP3 through KaZaa.
Amidst the heated debates and flurry of exchanges between different camps of thought, it is difficult to ascertain the situation and determine who is right. The article aims to gather some opinions (not all - exclusive) and present them in a easily digested form, hopefully, to shed some light; as well as making us think deeper about file sharing and copyright.
I will devote part of the article and apply it to the Singapore context; relating the impact of The Internet and MP3 on our music scene.
Content
A) Copyright Laws
1. The Notion of Copyright Laws
2. Copyright issues in Singapore
B) The History and Myth of the Singapore Music Industry
C) The Rise of The Internet & P2P
D) The Proliferation of Thoughts
E) More Thoughts on P2P
F) The Singapore Context: How can we promote Singapore music?
A) Copyright Laws
1. The Notion of Copyright Laws
The embedded notion that a musician owns the right to his music is not as simple as we like to think it is. Even though most of us would agree that creators should own the rights to their work; it is hardly the case most of the time. Most major labels owned the copyright of their musician’s songs. Their claim being, they provide grooming, marketing, studio time, producing and distributing the records. This is however more complicated than what they state, as a song is the result of a group effort from the musician to the back-up band, writer, programmer, and mixer. How then, can we appropriate copyright?
Record companies pay these individuals a one time payment for rendering their professional services but deprive them of any future payments if the recording were to be reissued again. On the other hand, they hold the copyright for years, sometimes as long as the lifetime of the creator. As such, the question is begged, “what gives them the right to release reissued albums or CDs, reaping the profits, without giving the creator or creators parts of the profits to the sales?” Artistes are compensated by royalties which are determined based on their contract agreement. Nevertheless, unless we are talking about a famous celebrity, it is unlikely the less popular or newer acts are able to bargain for better terms in the contract.
As if copyright laws are not unfair enough, major corporations in America are lobbying for extensions to copyright. In an article submitted by Oakier to Boycott-RIAA.com, the writer explains when US adopted the Bern Convention in 1908 which makes copyright laws last for the creators life span plus 50 years, he finds that things are going wrong. The argument is that copyright laws were instilled to allow creator their fair share of profits but that perpetual ownership would damage creative output.
2. Copyright Laws in Singapore
Singapore recently signed the Free Trade Agreement with The United States and the implication of this endorsement means the Singapore government, will under pressure, from the U.S., be seen more vocal and heavy-handed in its efforts towards eliminating software, CDs and movie piracy.
This may impact the way MP3 are traded online in Singapore through P2P networks as seen by the actions of RIAA. Record companies and music associations in Singapore who claims to represent the rights of our homegrown artistes can follow the lead in claiming the interest of their artiste.
In Singapore, copyright laws are governed by the Copyright Act, covering a wide range of materials from artistic performance to films, books, and public performance among others.
In terms of music recording, though not explicitly stated within the act, MP3 can be considered under the law as “a copy of a sound recording”.
The copyright of the MP3 is considered infringed if
“in Singapore, without the licence of the owner of the copyright —
(a) sells, lets for hire, or by way of trade offers or exposes for sale or hire, an article; or
(b) by way of trade exhibits an article in public,
where he knows, or ought reasonably to know, that the making of the article constituted an infringement of the copyright or, in the case of an imported article, the making of the article was carried out without the consent of the owner of the copyright.
(2) For the purposes of subsection (1), the distribution of any articles —
(a) for the purpose of trade; or
(b) for any other purpose to an extent that affects prejudicially the owner of the copyright concerned,
shall be taken to be the sale of those articles.”
- Infringement by sale and other dealings - 33.
Copyright laws with regards to distribution (a) and (b) not only affects those who trade MP3 online; but also fans who create CD-R trees and distribute bootlegs. Much has been argued on whether trading is actually good or bad for musicians, which I shall touch on later (More Thoughts on P2P). The infringement law implies that trading must “affects prejudicially the owner of the copyright concerned” by which the pro trading camp must prove that MP3 trading does not cause harm to the copyright owner necessarily before they can find a loophole in the litigation process.
Generally, the owner of a copyright retains the copyright of the sound recording for 50 years after it is first published. He has the ability to sue the defendant for infringement which can include an injunction (subject to terms, court thinks fit) and damages.
Copyright owners can take action against a defendant even if he is unaware of copyright abuse. He or she is liable for loss of profit; of which, it is up to the court to decide:
(3) Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of the infringement, but shall be entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not.
(4) Where, in an action under this section —
(a) an infringement of copyright is established; and
(b) the court is satisfied that it is proper to do so, having regard to --
(i) the flagrancy of the infringement;
(ii) any benefit shown to have accrued to the defendant by reason of the infringement; and
(iii) all other relevant matters,
the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.
The Copyright Act allows owners to make an application for the said infringed material to be either forfeited to them; destroyed or otherwise dealt with as the court thinks fit.
If found guilty of copyright infringement, the offender can be fined not exceeding $50,000 or imprisonment for a term not exceeding 3 years or both.
The law also states that those who possess the technical equipments to duplicate the work and hence create copyright infringment is susceptible to a “fine not exceeding $20,000 for each such article in respect of which the offence is committed or to imprisonment for a term not exceeding 2 years or both. “
In Singapore, an infringement of copyright ceases 6 years after it has supposedly taken place.
As seen, Singapore possess harsh laws which copyright owners are able to bring an action against MP3 traders, similar to the situation that has occurred in the U.S.
If America’s RIAA can bring lawsuits against individuals; Singapore’s RIAS, who claims to represents the rights of Singapore artistes, and with members consisting of major labels can use similar tactics in preventing MP3 trading.
Below are the names of RIAS members, taken from its website:
BMG Singapore Pte Ltd
Brocita Enterprise Pte Ltd
Catchy Entertainment (S)
EMI Music Singapore
EQ Music Pte Ltd
Easternworld Holdings Pte Ltd
Forward Music (S) Pte Ltd
Hype Records Pte Ltd
Leow Liang Buddhist Book Distributor
Life Record Industries (Pte) Ltd
Music & Movement (S) Pte Ltd
Music Street Pte Ltd
Muvicom (Private) Limited
Ocean Butterflies Music Pte Ltd
Rock Records (S) Pte Ltd
S2S Pte Ltd
Sony Music Entertainment (S) Pte Ltd
Swissteo Music International Pte Ltd
Top2 Music Pte Ltd
Universal Music Pte Ltd
Warner Music Singapore
White Cloud Record Pte Ltd
B) The History and Myth of the Singapore Music Industry
Very little is documented about the history of Singapore pop music industry. In fact, ask most youngsters what they understood by Singapore music and you are likely to get a blank stare.
Some claim the success of Singapore Chinese pop music as proof of the existence of an industry. Singapore Chinese Pop however already originated in the early 80’s with the folk pop movement exemplified by poet icons like Liang Wern Fook. The successful marketing of local pop icons, like Kit Chan, in the mid 90s, as she enters the Taiwan market, serves to pave way for more to follow. That however does not justify given their success are more often than not, dependent on their overseas popularity. An industry should not be just names or acts, but a society of musicians who can generate and sustain demand and supply within the local market.
Despite English being the communication language, English pop suffered a different fate. During the late 60’s, Singapore growing music scene was promising. The Quest was as big as The Beatles here. International acts like The Rolling Stones played to an appreciative audience in The Tennis Hall. Bands like The Stray Cats would play in dance clubs and private parties.
Government clamp down on rock because of its perceived evil influence on our youngsters, would spelled the imminent death.
This blackout is revitalized by the mid 80s with the emergence of, BigO, Singapore’s indie rock music magazine, that attracted a cult readership. This period of rejuvenation sees the emergence of independent rock bands. Probably the first to be formed and the icon of that era is Transformers and later Zircon Lounge fronted by DJ cum satirist, Chris Ho.
These bands play a diverse range of music and embrace the DIY ethics of punks by playing in gigs and making live, demo or home recording cassettes.
The New Wave occurred during the early to mid 90s, and witnessed a burgeoning phenomenon that looks as if it was hitting mainstream. The Oddfellows was on radio. Humpback Oak, well-liked by the critics, was compared to R.E.M. by a Rolling Stones magazine review for their debut album, Pain Stained Morning. John Peel would play surf punk Force Vomit’s Spacemen Over Malaysia in his BBC radio show.
When the newly set up arts radio station, Passion 99.5, devote a segment of their playtime every week to interviewing local musicians and playing their music, radioland seems a little more promising. It complemented the efforts of Paul Zach and his weekly radio show, Zach’s Stack as well as Chris Ho’s Hit Parade.
The Boredphucks, touted by BigO, as Singapore’s first original rock and roll band, would be reprimanded by the police for spouting expletives onstage at the Local Pallooza 2000. The band, in an interview with BigO, would boast that their followers include youngsters outside those interested in local rock.
Audioload.com, Xudioload.com and National Arts Council, at this point in time, would launch and organise gigs for unsigned bands.
If this is a sign of more channels opening up and showing signs of encouragement that the underground might enter mainstream consciousness, things suddenly seem to take a step back.
BigO went into hibernation late 2002 though they still operate, maintain a website and emailing list. Paul Zach’s radio show is canned after the station decides to go for a make-over and do full time dance radio. Passion 99.5, Singapore’s only art radio station, which plays local music would be removed from airwaves. Xudio.com and Audioload.com closed down when the dot com bust.
Local radio, Perfect 10 98.7, targeting the young, plays mainly overseas radio friendly MOR brand of pop music or otherwise corporate rock, the likes of Limp Bizkit or Linkin Park. Our teenagers are heavily exposed to MTV reinforcing their listening habits on radio.
This short but not exclusive history demonstrates that Singapore has hardly a viable music industry; and that mainstream success for English pop still eludes us.
Given smaller indie bands are now virtually shut out from mainstream media, their only chance of ever reaching to the audience is to go back to what was done in the early 80s - continue playing gigs and going about it the DIY way - demos and fanzines.
C) The Rise of The Internet & P2P
The popularity and ease of connection to the information highway is a paradigm shift that would change the way people conduct business and communicate. Emails are a common way for overseas communication and disseminating information. Video conferencing allows meetings to be organised effectively reducing business costs and time. Chatrooms, bulletin boards, ease of setting up a website and blogsite will allow people to communicate, sometimes anonymously, and contribute to the chaotic array of views.
For music fans, it means they can visit a webzine and obtain the latest information about the latest underground metal or goth act, which local media would never write about. It also means that they can source for music files or exchange CDS through websites, P2P and Cd-trees. They can also tune into online broadcast radio stations or purchase a rare CD by bidding for it at ebay.
P2P software allows individuals with computer stations and internet access to trade music files online and at real time. The greatest controversy surrounding P2P first started with RIAA trying to close down Napster, a free P2P network, with lawsuits.
Companies not only tried to foil P2P by bringing down the file-sharing services, but also brought actions against individuals who downloaded illegal MP3.
In America, RIAA filed 261 lawsuits against file traders and among them was a 12 year old Biggie Brianna who thought it was all right to download songs as her mother had paid a monthly subscription fee of $29.99 fee to Kazaa music trading service. Her case was the first to be settled swiftly after the mother agreed to pay $2,000 to RIAA. Other offenders under federal copyright law could be slapped with up to $150,000 per song.
The actions created some embarrassment when it withdrew a lawsuit against a 66-year old accused of downloading thousands of songs. It turns out Sarah Seabury Ward was using a Macintosh which is incapable of running the Kazza file-sharing service. RIAA maintains that they have traced to the right IP address and account; that their withdrawal was a gesture of goodwill and they might refile after further investigations. The glaring mistake is attributed to Ward who uses an Internet Service Providers (ISP) who only assigns temporary IP addresses.
RIAA, after targeting KaZaA recently, filed a similar lawsuit against Israel, Tel Aviv-based iMesh.com, the third-largest file-sharing network behind Morpheus, for acting as a medium in illegal distribution of copyrighted material.
As if not confusing enough, Sharman Networks, the company behind KaZaA, retaliated with legal action; accusing the labels of using unauthorized versions of KaZaA Lite to get onto their network and check on users. The recording companies are also accused of sending counterfeit copyrighted works and messages to users.
In Singapore, when the dot com explosion occurred, music websites such as AudioLoad and Xudio.com were established; heavily featuring homegrown pop music providing editorial and MP3 contents. Both websites are now defunct leaving; Soundbuzz.com, with a more regional approach to survive and branch out into other areas, such as ringtones.
Internet as a medium to promote local music is almost dead with the exception of BigO. As explained earlier, Singapore musicians can adopt the DIY way. They can also upload their music with either BigO or MP3.com which is an international music MP3 portal in the hope that someone will hear their sounds somehow.
The disadvantage with MP3.com, is that, unlike AudioLoad or Xudio, it does not offer any local journalistic or editorial content for Singapore music. Without critique, we can hardly expect our music scene to bloom.
D) The Proliferation of Thoughts
There is a diverse array of opinions with regards to P2P and MP3 trading.
MP3 trading is injurious to music industry.
MP3 trading is tantamount to music piracy; much like bootlegs were targeted pre Internet era.
Holders of these views would be major music labels because logically speaking, the larger the amount of MP3 trading that goes online, the larger the number of sales of albums and singles they would lose as many of these MP3 would be tracks from their stable of musicians. The view is that downloaders would refrain from buying music CDs since they can get music for free online. Some musicians are threatened by P2P because if album sales released by their labels are hurt, it means less revenues and royalties for them.
The other extreme: MP3 trading is beneficial to consumer.
Some people believe that P2P or MP3 trading allows consumers to make better choices. Their argument is that if consumers do not like what they have download, they would not buy it from retail. In this regard, P2P act as a platform for music sampling. Because of MP3 lower audio quality, some believe people will buy an album if they like what they hear.
Another argument goes that CDs are so highly priced in the first place that downloading MP3 will force record companies to lower prices and re - evaluate their marketing and distribution channels and strategies. Such high prices are incentives for people to download illegal MP3 because of the apparent low cost associated with downloading. Downloaders only need a PC, Internet access and perhaps a MP3 player or CD burner to download and store songs.
At the same time, there are others who believe that MP3 trading will force record companies to sign on better musicians and produce better records; in a bid to attract people to buy originals. Albums would be superior quality in terms of sound, music, artwork; and even throwing in freebies such as videos or links to the musicians’ websites. The assumption is that people will buy music CDs once the quality goes up.
The Insider – Veteran Story
Janis Ian’s articles FALLOUT which is a follow up to the first, The Internet Debacle, which can be found in her website, http://www.janisian.com , is probably one of the most well-read and researched article in circulation,
Her views are that free MP3 does not hurt or destroy the music industry which the record companies would like us to believe.
In The Internet Debacle, she says, ” Realistically, why do most people download music? To hear new music, or records that have been deleted and are no longer available for purchase. Not to avoid paying $5 at the local used CD store, or taping it off the radio, but to hear music they can't find anywhere else. Face it - most people can't afford to spend $15.99 to experiment. That's why listening booths (which labels fought against, too) are such a success.”
She also says that when she uploaded more MP3 on her website for people to download, sales of her albums increased online.
