Bruce Willis is reported to be considering legal action against Apple to enable him to bequeath his sizable iTunes music collection to his children. Whether there is basis in the story or not it shines an unforgiving light not so much on Apple’s terms and conditions but the role of copyright in consumer music products as a whole.
Analogue Era Copyright Restrictions Rarely Left the Realms of Small Print
The issue at stake is that iTunes terms and conditions prevent the original purchaser from giving the purchased music to someone else. But this is not something unique to iTunes, it applies to virtually every single piece of music product that you have ever bought (assuming you have bought some at some time or another). And not just to downloads, but also to CDs, vinyl, cassette, MiniDisc and just about any other physical format you care to throw into the mix. With each and every one of those music product formats that you have purchased, all that you actually own is the physical packaging and media, and a license to play the music inside it. You do not own the music. And the licenses come with pretty specific restrictions, often including the number of people that are in the room when you are playing it, though the exact number of people who are allowed to listen to music in your living room is defined by national statute. The restrictions also cover copying, lending and selling. Of course (personal) copying, lending, listening at parties, gifting and buying used albums have all been integral parts of the music experience for decades. People simply enjoyed the music how they wanted to regardless of the restrictions, many of which they simply were not aware of.
Take a look at the small print on the back of a CD album – if you still have any – and you’ll see a copyright notice. The exact wording will vary according to the label and the country of origin or sale, but the same underlying principle applies across all of them: you don’t actually own the music on the album, instead you have bought a license to play that music. In the physical era people rarely bumped into these restrictions, but in the digital age labels and other rights owners have the ability to enforce them through technology.
So should Bruce Willis really prove to be tilting at iTunes’ windmills, it will be decades of global copyright convention and practice that he will in fact be facing, and any potential judge will be made keenly aware of this. Which raises the stakes in quantum leap proportions and builds a case for the industry to come up with common sense business solutions before the entire music copyright edifice is challenged.
It is Time for a Business Solution to the Copyright Problem
Copyright is the critical tool for monetizing content and ensuring creators and originators are fairly compensated. But copyright is at its best when it serves those purposes without placing impractical and unreasonable restrictions on consumers. Paying music fans are becoming an increasingly self-selective group. In the analogue era most music fans were also recorded music buyers. In the digital age music fans often opt out from music purchasing entirely. Thus when analogue-era copyright legacies affect digital music buyers, it is the valuable, opted-in part of the population that is being penalized, not the freeloading opted-out portion. A situation which of course has already happened once before online, with rights owners’ earlier insistence on all downloads being shackled with DRM.
The indies, and then EMI and iTunes finally broke the DRM hoodoo and one would hope that a similar outcome could be achieved here. Changing the underlying copyright frameworks and agreements is not going to happen either soon or quickly, but just as DRM was solved with business decisions, so could the issue of transferring ownership of purchased music. Rights owners and digital music retailers could create a framework agreement to permit certain behaviours within specific parameters or could simply agree to turn a blind eye in certain scenarios.
It would be copyright suicide to suggest that a music customer could ‘give’ their music to anyone they so choose, because a single digital copy can always be legion. But a ‘fair use’ approach which supports a number of scenarios, such as Willis’ desire to bequeath to his children, would be an eminently workable solution.
Copyright should protect rights but not at the expense of penalizing legitimate customers over those who don’t bother to pay at all.