|
|||||||||||||||||||||||||||||||||||||||
|
|
ASCAP
vs. GIRL SCOUTS: The Best Things in Life
Aren't Free, or, Why You Might Be Better Off If You
Wind Up Paying for Those Campfire Singalongs One of the great quarrels of this era of the Internet is whether rights in intellectual property should be constricted in response to new technological realities. I vote "no," and to support this view I cite what looks like an awfully tough case for my side, the recent flap involving American Society of Composers, Authors and Publishers and 3 million girl scouts. Under
copyright law, a song writer is entitled to a fee for
each public performance. Because the costs of negotiating
millions of transactions would be prohibitive, society
invented a system: Composers join ASCAP or a similar
It notified 8,000 summer camps that they must pay for using ASCAP songs in public performances. The meaning of "public performance," a term of art under copyright law, was not specified, but some camps interpreted it as covering any use, including the good old campfire singalong. Girl Scout Camps in California decided to purge their songbooks of such works as Puff, the Magic Dragon. The press got hold of the story, and the headline punsters had some fun with "The Birds May Sing, But Campers Can't Unless They Pay Up;" "Campfire Churls;" and other jokes. [For the details of the affair, see articles by Lisa Bannon, Wall Street Journal, Aug. 21, 1996, p. A1; Ken Ringle, Washington Post, Aug. 24, 1996, p. B1, & Aug. 28, 1996, p. C3; Elisabeth Bumiller, New York Times, Dec. 17, 1996, p. B1.] ASCAP retreated, taking out ads saying that it loves the Girl Scouts, and, to be gender-equal, the Boy Scouts, too. If you read the ads closely, ASCAP gave not a whit on its substantive position, but it stanched the hemorrhage of bad ink. The ASCAP tale is useful because it captures so much of the ambiguity inherent in intellectual property. Those who were furious at ASCAP made some good points. Song writers draw heavily on the efforts of other people, such as those who invented the musical notation used to put songs into marketable form, a rich tradition of folk music written without benefit of copyright, and old works no longer covered. The composers are tapping into a sort of cultural commons without which their efforts would be bootless, and they have no right to appropriate it. An ingenious reporter contacted Pete Seeger, the folk singer, who said that "music really comes from and belongs to everyone." His father was a musicologist who judged that even Beethoven's music was about 90 percent musical tradition and 10 percent his own. Besides, we suspect that a composer actually benefits from the campfire singing. The more his music enters the great collective consciousness, the more often it will be performed in formal settings and the more money he will make. For him to attack the use of music by the people seems perverse as well as chintzy. On the other hand, song writers do have to make a living. If there were no way to get paid, composers would lack not only the incentive, but the time and energy to write, since they would have to make a living some other way. Music may belong to the people, but Pete Seeger himself holds over 200 copyrights, including Where Have All the Flowers Gone? and his royalties are respectable. And why shouldn't he have the pleasure of collecting them, in exchange for the pleasure his work gives us? And even if Beethoven was only 10 percent original, what a 10 percent! Maybe ASCAP is right -- "Well, little girl, I would like to let you sing Puff for free, but that would cheat you because then fewer such songs would get written; since I cannot bear to deprive you, off to the slammer with you." The essence of copyright law is the effort to find a reasonable way to divide this baby, and it is not easy. Lots of lawyers make a living mulling over "fair use," "public performance," and other concepts. It is indeed a little hard to see a participatory singalong as a public performance. But leaving aside this issue, in the end, and contrary to your initial instinct, on this dispute you should go with ASCAP on the basic moral principle involved. It would never occur to anyone to say that Girl Scouts should get sheet music free from the local music store, or guitars. Why should the music itself, the true core of value, be free just because it is intangible? The real problem is not principle, but price. ASCAP started out demanding upwards of $1200 per season per camp, and came down to about $250. In a frictionless free market, one without transaction costs in which campers could get composers to bid against one another, the price of using a song would go into free fall, down to pennies. ASCAP's real mistake was not in asserting its members' moral right to charge, but their right to charge a monopoly rate. This distinction is crucial, because the computer revolution is changing the possibilities drastically. Before too long it may be possible to check on the cost of the rights to any of the four million songs on the ASCAP list by touching a button, and the frictionless market will be close to reality. It might cost 2 cents to sing Puff, payable over the Internet, or you might learn that the composer, like the Grateful Dead, believes in giving away performance rights for occasions such as singalongs. Whatever. The key point is that as long as the forces of competition are working, the creation of clear, enforceable rights in intellectual property will work to the long-term benefit of Girl Scouts as well as composers. Problems caused by transitory problems of transaction costs or monopoly pricing should not obscure this fundamental truth.
|
|
organization,
which sells a blanket rights that permit users to play
music by any of its members. ASCAP has always
collected fees from radio and TV stations, clubs, concerts
and other major users. Recently, it has gone on
the offensive against smaller users, including restaurants
rodeos, stores, even funeral homes. In the fall of 1996,
this offensive tangled ASCAP in a public relations disaster.
|
