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While the recent Google Books ruling by the US Second Circuit has once again proven how the US copyright system is – thanks to its fair use provision – more flexible and adaptable to digital challenges than its European counterpart, in other fields the legal situation is very similar on both sides of the Atlantic. One such field is digital sampling in music, which is the topic of the book “Creative License: The Law and Culture of Digital Sampling” by McLeod and DiCola (2011, Duke University Press).

Cover of the Book

Cover of the Book “Creative License” by Kembrey McLeod and Peter DiCola (2011, Duke University Press)

Sampling is a comparably recent practice where parts of sound recordings are reused in creating new works. According to McLeod and DiCola, “a good appropriated sample has […] a good quality of its own, and it has a strong reference that evokes cultural resonance as well” (p. 99, emphasis added). The latter of the two, cultural resonance, not only adds an additional meta-layer of cultural reference to a song but is also the main reason for legal calamities associated with sampling. As with remix practices more generally, a core characteristic of sampling is that the old remains visible within the new and is not hidden behind a (more or less transparent) veil of originality.

However, this visibility of creative raw materials – that is, samples of previous works – is considered as some form of creative “short-cut” by the courts, which require samplers to clear each and every sample they use, as small and tiny the portion of sound may be. McLeod and DiCola:

Bridgeport Music v. Dimension Films held that no de minimis exception applied to sound recordings. […] [T]he bottom line was, as the ruling stated, ‘Get a license or do not sample.’” (pp. 139, 141)

In Germany, the decision “Metall auf Metall” by Germany’s highest court had identical consequences. The detrimental effects of such a restrictive application of current copyright to the artistic practice of sampling are the reason why sampling-based creativity suffers from permission culture.

Read the rest of this entry »

Every day I keep adding open tabs to my browser with interesting articles on issues related to governance across borders, hoping to find the time to blog about them; only rarely, I actually manage to do so. This is why I am starting the new year with a new series called “Tagged Tabs”. To remove at least some of the open tabs in my browser I will (un)regularly present a list of commented links to interesting articles elsewhere.


This post is provided by our “guest blogger” Elke Schüßler. Elke Schüßler is postdoctoral fellow at the Department of Management at Freie Universität Berlin.

As part of a larger research program on so-called field configuring events (FCEs) in the German music industry, Leonhard Dobusch and I took a closer look at the question of how the issue of copyright is represented at – and in turn framed by – music festivals, fairs, and conferences where the issue of copyright (or, more generally, the question of the future of the music industry in its multiple forms) is discussed by a diversity of field actors (see working paper). The concept of FCEs comes from organization theory (see Garud 2008 for a scholarly example) and refers to events as temporally and spatially bounded arenas for networking, sensemaking, and debate with a potentially larger impact. We consider such FCEs as a discursive focusing lens hosting different “discourse coalitions” and their respective “story lines” (see Hajer 1993) and argue that the way the event landscape evolves can be taken as a representation of how the field evolves with respect to certain issues.

Empirically, we first analyzed at the evolution of the event landscape in the pre- and post-Napster period (1995-2001 and 2001-2009, respectively). We identified 27 events in the German music industry that fulfilled our selection criteria and that we classified as conservationist, reformist, radicalist, or neutral with respect to copyright. We observe a steady rise in the number of events, from only 3 in the year 1997 to 20 in the year 2009 (see Figure 1).  There is now a larger number of radicalist and reformist than conservationist events and, accordingly, the majority of newly founded events had either a radicalist (5 events) or a reformist (7 events) orientation.

We further conducted a comparative in-depth discourse analysis of three selected events in the year 2009, a critical year for the German music event landscape: the traditional main industry event, the “Popkomm”, sponsored predominantly by the major labels and canceled in 2009 with reference to “illegal downloads”; the all2gethernow (a2n), an impromptu collective act of the independent players in the industry to fill the gap and to counter the claims of the Popkomm; and the c/o pop festival founded in Cologne in 2004 associated with the digital music business. Our aim was to identify compatible and incompatible story lines, associate them with certain actor groups (not) participating at these events, and link them to the related event- and field-level practices. In a comprehensive media analysis we identified 34 different claims with respect to copyright made in the context of these events and, again, classified them as conservationist, reformist, radicalist, or neutral.

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When EMI, the smallest of the “Big Four” major labels, announced to start selling its music without technological protection measures (“Digital Rights Management”, DRM) in 2007, the other three majors quickly saw no other possibility but to follow down this road. Flanked by Apple’s CEO Steven Jobs’s “Thoughts on Music”, this move brought an astonishingly unsuccessful decade of attempts by industry incumbents to establish DRM technologies to an end.

In theory, put forward for example by industry researchers such as Mark Stefik, DRM technologies should not only prevent illegal copying practices (“piracy”) but also allow new streams of revenue by tailoring prices individually to consumer’s needs. In praxis, however, this vision never became reality: while in the world of small and many independent labels DRM never was important (see, for example, the online-store “finetunes”, which was DRM-free from the beginning), the cartel of major labels first tried to develop industry-wide and all-embracing DRM standards in the realm of a so-called “Secure Digital Music Initiative” (SDMI). Remains of this bold attempt, which was silently shut down after only two years of existence in May 2001, can only be found in the Internet archive. Controversies between content owners and hardware producers about the necessary protection levels had delayed DRM development, whose outcome was then rejected by consumers, leading DRM-mastermind Stefik to conclude in 2007: “The situation reflects the core issue that current DRM provides no compelling benefits to consumers” (see the paper “DRM Inside”).

The only refugium, where DRM solutions still prevail, is the – far from thriving – field of mobile music: supported by all four major and hundreds of independent labels, Nokia’s bundling of phone hardware and music-flatrate entitled “comes with music” uses Microsoft’s “plays for sure” DRM solution. But even in this field DRM seems to be in retreat, since Nokia recently abandoned DRM when introducing “comes with music” in China. Ironically, Nokia spokesman Doug Dawson justified waiving copy protection measures with fighting piracy (see Economic Times):

“It’s unique for China where piracy has had a stronghold.”

Does this mean DRM measures against piracy do only make sense, where piracy is weak? While such paradox lines of reasoning seem to finally herald the end of DRM in the music industry, Michael Arrington at techcrunch nevertheless reports renewed attempts of introducing DRM through the backdoor – via watermarking and cloud computing: Read the rest of this entry »

One of the things that make blogs particularly interesting are series. In this blog, for example, Phil features a series on “microcredit myths“. The “series” series recommends series at related blogs. This time I introduce the series “How Evil is File-sharing?” at the German research blog “musikwirtschaftsforschung“.

Peter Tschmuck, founder of “musikwirtschaftsforschung” (“music industry research”), is an economist by training, who is situated at the University of Music and Performing Arts Vienna. In his works he pursues a holistic approach in researching how technological and regulatory changes affect the music industry. Unsurprisingly, new practices such as online file-sharing (see also: “Internet Piracy: A Perfect Excuse?“) play an important role in his research as well as on his blog, where he started a series titled “How Evil is File-sharing?”. We feature this series not only because it gives a great overview – regrettably only available in German -, but also because it is the main topic of the upcoming “Vienna Music Business Research Days” (English PDF), June 9-10, 2010.

After having reviewed 17 studies on file-sharing in the course of the series (see list of studies below), in post #18 Peter Tschmuck groups the extant literature into three categories (number of studies in brackets):

  • Formal approaches (4): Due to the very unrealistic assumptions of these either microeconomic (e.g. Liebowitz 2006) or game theoretical (e.g. Curien & Moreau 2005) models, Tschmuck summarizes their implications as ranging from “no usable information” to “interesting but still empirically unfeasible insights”.
  • Survey-based approaches (7): With one exception (Huygen et al. 2009), all available surveys lack representative samples, thus making generalizations difficult. Interestingly, Huygen et al.’s study, which is representative at least for the Netherlands, finds no connection between the decline in CD sales and file-sharing activities.
  • Econometric approaches (6): Among the econometric approaches, Tschmuck highlights the two Harvard-studies of Oberholzer-Gee & Strumpf (2007) and Blackburn (2004) as being particularly reliable.

In what follows, Tschmuck delineates propositions for further research on the issue. For the supply side he mentions the following three characteristics: The music industry resembles (1) oligopolistic market structures, labels in general and major labels in particular (2) seek to maximize market share and due to copyright regulation we find (3) monopolistic competition.

On the demand side, in turn, he acknowledges the existence of (1) a substitution effect of file-sharing and record sales, which is however balanced by something Tschmuck calls (2) “network effect” in form of new music discovered via file-sharing. The latter lies at the heart of market development and market segmentation.

As a conclusion, Tschmuck offers the following (translation L.D.):

Anyone who wants to belong to future winners has to abandon traditional business models and harvest new opportunities for making profit. The battle against music file-sharing networks is thereby definitly not a sensible way to pursue. One should rather consider how these new forms of using music can be economically capitalized, which brings us to the discussions on music flat-rates and new types of copyright.

Which, in turn, brings us back to posts on this blog such as, for example, “Extending Private Copying Levies: Approaching a Culture Flat-rate?” regarding the former and “Competition for Copyright Collectives: New Market Logics” regarding the latter.


Appendix: Studies reviewed in the series “How Evil is File-sharing?”: Read the rest of this entry »

While around the globe copyright critics advocate the adoption of Creative Commons licenses as a way for enabling remix and non-commercial file-sharing, in Europe a second solution is debated more and more intensively: a so-called “culture flat rate”. Internet users should be mandated to pay a fixed amount per month and in return be allowed to non-commercially remix and share copyrighted files. Of course, differently to the private regulation approach of Creative Commons, such a “culture tax” would require legislative changes.

Technically, most countries already have a minor form of such a culture tax called private copying levies: a special tax or levy is charged on purchases of recordable media – in some cases also on recording or copying devices – and then redistributed to rights holders via copyright collectives. Regularly copying levies are justified as being a compensation for limitations and exceptions to copyright such as the right to make a private copy (see, for example, the US Audio Home Recording Act).

Compared to other aspects of copyright regulation, which are increasingly harmonized across jurisdictions in the course of international treaties such as the WTO’s TRIPS agreement, copying levies still vary significantly from country to country – both in terms of the types of devices and recordable media covered and in terms of levy levels. And these differences are far from being diminished, as recent developments in the neighbouring countries Germany and Austria illustrate: while in Germany the Association of Computer Manufacturers and a consortium of different collecting societies agreed on a new copying levy on any computer with a recording device (German press release), the Austrian supreme court of justice ruled against a similar levy (Austrian supreme court ruling, German).

In his contribution (PDF) to last year’s Free Culture Research Workshop at Harvard’s Berkman Center, the German media sociologist and activist Volker Grassmuck, argues in favor of a “Culture Flat-Rate to end copyright extremism and bring information freedom and remuneration for authors to the Internet.” He describes the model as follows: Read the rest of this entry »

Paul David Hewson, better known under his stage name Bono Vox as a frontman of the rock band U2, is undisputedly one of the world’s best-known philantropists. He holds – and expresses – pointed opinions on a huge variety of subjects, leading him to the foundation of his organization DATA, an acronym for “Debt, AIDS, Trade, Africa”.  So it was no surprise, when in his recent New York Times op-ed he addressed issues covered by this blog. Of his piece “Ten for the Next Ten” especially number 2 dealing with intelletual property caught my attention:

“A decade’s worth of music file-sharing and swiping has made clear that the people it hurts are the creators — in this case, the young, fledgling songwriters who can’t live off ticket and T-shirt sales like the least sympathetic among us — and the people this reverse Robin Hooding benefits are rich service providers, whose swollen profits perfectly mirror the lost receipts of the music business.”

Is it really true that the biggest losers of file-sharing are the creators? Bloggers at the UK Times come to different conclusions in their recent analysis, presenting the following “graph the record industry doesn’t want you to see”: Read the rest of this entry »

Sorry, but I simply have to add my two cents on what Leonhard is writing about. Yeah, I’m blogging a bit out of my depth here, but as an ardent fan of original music and deep skeptic of intellectual property rights, I’ve had a strong opinion on this subject for years.

It comes as no surprise that ABBA are arguing for the preservation of the music industry. Too old or forgotten to sell any new songs, their income depends on the re-selling and licensing of old songs. Björn claims that downloaders are stealing the ideas of “single individuals” who, presumably, should receive income for it.

But the real question is: who needs the music industry? By pitting overproduced, overfinanced pop products against homegrown artists and appropriating the majority of proceeds, does the music industry really encourage creativity? I wonder how many professional musicians actually work for (major) record labels, but beyond any doubt it’s a very small percentage. The rest ekes out an honest and more or less satisfying existence doing what they can’t resist doing: making. good. original. music.

And here’s a link to the current capitalist crisis: As banking practices show, financial incentives just simply do not produce excellence. Read the rest of this entry »

One of the things that makes blogs particularly interesting are series. In this blog, for example, Phil features a series on “microcredit myths“. Today we are starting a series recommending series at related blogs. As an opener I present Digital Renaissance’s “Songs to the Music Business”.

The guys behind Digital Renaissance  –  two music label owners, a researcher and an expert on the movie business – describe the rationale for their blog as follows:

There need to be a Digital Renaissance. Renaissance is the french word for rebirth. It was a cultural movement that brought us out of the middle ages and into the future and then some with a vengeance 4.0 style. The world adjusted to this cultural movement. It is time for the world to start adjusting to the Digital Renaissance.

Yesterday, they started a series “with songs that can be translated as good stories of – or advice/mindsets to the music business”. The first entry of the series is devoted to Warren G and his piece “What’s love got to do with it?” (YouTube-Video) . There they are claiming that Warren G is “telling the whole truth” in the third verse, where he raps:

“Now for these labels tellin’ fables, makin’ the messed-up deals under the tables. You think that you smart, but, fool, I’m the smartest. You can’t make no money if you can’t keep an artist.” Read the rest of this entry »

The Book

Governance across borders: transnational fields and transversal themes. Leonhard Dobusch, Philip Mader and Sigrid Quack (eds.), 2013, epubli publishers.
February 2017
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