Don’t let copyright get drowned out by the noise

Copyright considerations for music professionals

Volume 117, No. 2February, 2017

David Newhoff

Copyright and the protection of intellectual property in the digital age are priorities for Local 802 and the AFM. Over four months in these pages, copyright expert David Newhoff will contribute this guest column, which will discuss the history and importance of copyright law in America, as well as introduce readers to the stakeholders who are involved in amending and reforming it.
– Political Director Christopher Carroll

I could be wrong, but I suspect that following copyright issues in the coming years is going to be like trying to play a Raymond Scott composition without rehearsal. Or worse, like trying to play it without the sheet music. If I had to guess, I assume most New York musicians are anxious about the new administration with regard to a wide range of issues, many of which deserve priority over copyright law; but I would urge you not to lose track of the artists’ rights narrative amid the political cacophony that is surely coming.

For the past several years, the anti-copyright argument has pitted many artists and creators against themselves by either manufacturing or exaggerating a conflict between copyright and free speech. In truth, the way copyright law has evolved in the U.S. alongside the principle of free speech has created more counterpoint than disharmony – an interdependence with some beautiful results. At various times throughout our history, free speech has been best advanced by creative individuals empowered by copyright. Further, it should be noted that the increase in rhetoric about the alleged conflict between speech and copyright just happened to coincide with the growth of multi-billion-dollar web platforms that are financially dependent on user uploads of unlicensed creative works.

But stay tuned for this rhetoric to get louder and noisier in the next year or two. With a new president who is clearly willing to lash out at the press or critics in the creative community, there may be a real urgency to defend First Amendment principles, and that narrative may be used by vested interests as cover to further weaken copyright law. Or to put it more accurately, copyright law is already weak in the digital market, and the major online service providers typically use free speech rhetoric in order to keep it that way.

If artists and creators make progress toward updating copyright law to better protect their rights in the 21st century market, be prepared for the counter-arguments from Silicon Valley and various digital rights organizations that leverage the tone – and possibly even the agenda – of the Trump administration in order to amplify the speech vs. copyright message. Somewhere beneath the noise, beneath the social media memes and meaningless headlines, will be a real story about the Digital Millennium Copyright Act (DMCA) or a litigation or some other proposal that may be complex but that can have real implications for your rights as artists and performers. If the creative community is going to stand united in defense of these rights, it will be essential to learn the facts behind the rhetoric that is designed to play on other emotions regarding issues that may have nothing to do with copyright.

Whether we’re talking about possible changes to the Copyright Act, revision of the DMCA, trade agreements, the Copyright Office, or the prospect of a copyright small claims process, there is no way to improve copyright for creators – especially independent creators – without improving enforcement. But to date, the notion of enforcement itself runs afoul of many people’s emotional instincts when it comes to the internet. This sensitivity has been beneficial to the major online platforms and one reason the labor of artists has effectively subsidized the growth of these platforms and the wealth in their owners’ pockets. Given the tone already set by the new president, we may expect various online law-enforcement proposals that demand rebuttal, but I would be prepared for the likelihood that vested interests will try to conflate copyright enforcement with this broader debate. As such, I urge creators to compartmentalize the issues and not lose sight of their interests and their rights – the melody of copyright, if you will – amid the clamor of dissonant themes, rhythms, and notes.

David Newhoff is a writer, copyright advocate and blogger for The Illusion of More, a blog that is part original editorial, part investigation into the world of copyright protection and the digital ecosystem. The blog is essential reading for people particularly interested in copyright and intellectual property, and can be found at