Copyhype

Last week I ran a post collecting a number of pieces that quoted John Philips Sousa and Jack Valenti.

The argument in many of the sources (though not all) goes something like this: The content industry, the entertainment industry, the copyright industries — and by extension the artists, authors, and creators who make their living producing expressive works — fail to see the opportunities presented by new technologies. The history supposedly shows a consistent line of opposition, and the implication is that any current attempts to ensure that the exclusive rights of copyright are accounted for as technology progresses are merely attempts to use law to prop up outdated business models instead of adapting.

And, it seems, a 100 year old quote from a march composer and a 30 year old quote from the president of a film trade association are sufficient proof for this argument.

I’m always skeptical of such broad claims. If you look at history, you’ll find that this story is little more than an apologue, used to add historical weight to influence present day debates. History is useful to the present — but if it is to play a role in debates over copyright law, a more objective history is needed.

Piano rolls and Gramophones

Toward the end of the 19th century, two innovations brought music to the masses: self-playing instruments (primarily player pianos and organs) and recorded music. Prior to this, you could only hear someone else’s song when it was performed by you or someone else.

Most songwriters and composers recognized the opportunities these innovations provided: the audience for their music now included everyone, not just those who had learned to play an instrument. However, at the time, copyright law did not address whether a reproduction of a work onto a mechanical device like a player piano or phonograph was within a composer’s exclusive rights.

In England, in 1899, a committee of the House of Lords held hearings on updating the copyright law of that country. Edwin Ashdown, of the Music Publishers Association, summed up what the issue that would prove to be at the heart of every dispute involving new technology over the next century:

We do not wish to prohibit this thing utterly; altogether we wish the sellers to pay a royalty on every copy they sell. … It is only fair to the owner of the copyright… and I believe these people are sufficiently honourable to pay a royalty if it is imposed, but they want the question settled. If they can do without paying a royalty they prefer it. ¹Report from the Select Committee of the House of Lords on the Copyright Bill, pg. 50 (1899).

Indeed, there was no question that the manufacturers of these devices wanted songs that could be played on them: the value of the “hardware” was dependent on the availability of the “software.” But like any business, or anyone for that matter, given a choice between paying for something and not paying for something, they much prefer the latter. The opposition from publishers and composers was not based on fear of innovation.

As Ashdown said earlier in the hearings, “It is not the instrument, it is the things you buy after you have got the instrument that we wish to provide against.”

The question of whether by law composers had exclusive rights over mechanical reproduction was unsettled in the US as well. But not every manufacturer took that as an opportunity to keep from compensating the composers that made their devices so valuable to the public. By the turn of the century, the Æolian Company, which manufactured player organs, was regularly signing licensing deals with music publishers who were happy to embrace the new technologies. ²Hearings before the Committees on patents of the Senate and House of representatives on pending bills to amend and consolidate the acts respecting copyright, pg. 221 (1908).

A 1908 Supreme Court decision placed mechanical reproductions outside copyright law. ³White-Smith Music Publishing v. Apollo, 209 US 1. Congress responded in 1909 by amending the Copyright Act to include mechanical reproductions. Did this kill recorded music? Just the opposite: jazz, blues, rock, country, hip-hop — the 20th century has been a phenomenal one for music, all easily accessible by any member of the public.

Radio

The invention of radio developed through the late 19th century and early 20th century, and by 1920, the first radio stations were regularlly broadcasting in the US. ⁴Wikipedia, History of Radio.

Music was a big part of radio from the start. E.C. Mills, chairman of the Music Publishers Protective Association and later member of ASCAP, noted music’s role in the industry:

You can broadcast but one thing—sound. Would it be possible to broadcast the sound of the steam hammers working on an iron building, or the traffic in the streets, and make it entertaining to the people? The two sounds that are interesting in the popular sense— and all the sound that comes over the radio is not interesting; the static holloas in my ears every now and then—the two sounds that can be broadcast are the spoken word in the interesting lecture, information, news, crop reports, market reports, etc., and the melody and harmony of music. Without music broadcasting in its popular phases could not exist. ⁵US Senate Patents Committee. Hearings to amend the Copyright Act, pg 73 (1923).

The introduction of radio broadcasting coincided with a drop in recorded music sales. ⁶Stan J. Liebowitz, The Elusive Symbiosis: The Impact of Radio on the Record Industry, 1 Review of Economic Research on Copyright Issues 93 (2004). And, as when phonographs were first introduced, copyright law was unsettled as to whether a copyright owner had control over the broadcast of his music.

But that’s not to say musicians and songwriters opposed radio. Mills, testifying in front of Congress, said flat out:

I am a radio fan; I don’t know but what it is going to bring a divorce into my family. We think that radio is the greatest contribution that science has ever made to man, that it will bring about a universal language, that it will make wars impossible, that it will make the fanner happy, and that in general it will render the greatest service to human kind of anything that has ever been conceived. That is what we think about the radio.

In a 1922 article for Popular Radio magazine, Mills repeated these sentiments:

Radio has developed in such an amazing and spectacular manner that it promises to become the greatest factor the world has ever known for the dissemination of information and education of the whole people. The position of musical copyright proprietors, including authors, composers and publishers, is now and will be in the future to lend their support to any cause or purpose which promises so much for mankind’s benefit, and they therefore do not oppose radio, nor would they handicap or hamper its logical development. ⁷E.C. Mills, A Public Performance for Profit? Popular Radio, pg 208 (May 1922).

Others who represented musicians were even more embracing of the new medium. M.E. Tompkins, of the Music Publishers Association, said:

Our Committee has been carefully investigating the broadcasting of copyrighted music since last November. In our report, just adopted by the Association, we point out that music publishers are vitally interested in radio broadcasting as a great future user of music and that our rights in the use of our copyrighted music in public performances must be protected. However, we appreciate the fact that radio broadcasting is stillin a chaotic and experimental state and that, while ultimately it will have to be placed on a commercial basis if it is to develop its potentialities, nevertheless the commercial side of the broadcasting problem has not yet been solved.

In view of these facts and also because we desire to co-operate in developing the music possibilities of radio, we believe that we should allow the use of our copyrighted musical compositions for broadcasting without charge for the present, and without prejudice in our rights. ⁸“Standard” Works are Free, Wireless Age, pg. 29 (June 1923).

Recording labels, still new to the world, were also generally welcoming of the opportunities radio provided their artists. While some were reluctant to let their performers broadcast, primarily because of concerns over the quality of the sound, others were eager.

An article in The Wireless Age from 1923 quotes H. A. Yerkes, assistant general manager of Columbia Graphophone Company, as saying:

We have no set policy directed against radio. In fact, we have urged that our exclusive artists sing for the radio whenever possible. We have even made arrangements for them to do so in certain cases. You can take the Columbia catalogue and go through it and you will find that nearly all the big names in it have been heard by radio.

The article notes, “H. B. Schaad, Secretary of the Aeolian Company made it plain that no unfavorable influence upon the Aeolian business has been noted and that in consequence, cooperation with broadcasters has been determined upon as the present policy of the company. Many prominent artists who have made Vocalion records or Duo-Art reproducing piano rolls have been heard on the air not only through their records and rolls, but personally.”

Otto Heinemann, president of the General Phonograph Corporation, which ran Okeh Records, said:

Radio has a very beneficial effect on the sale of phonograph records.

People who hear the latest hits by radio of course want to hear them again, and they do not want to have to wait until they are sent out again by a broadcasting station. They want to be able to play them at will. And so they go out and buy the records of those hits, and especially the records made by the artists who have played those hits by radio.

That is why we have been making all possible arrangements to have our artists broadcast the latest song and dance hits by radio. We know that it helps the sale of records. There is no doubt about it at all.

The broadcasting stations have been most generous in cooperating with us, welcoming our artists, and even in many cases announcing that they are Okeh artists. This is very beneficial indeed. I think radio is now a very important factor in the sale of new records.

Finally, A.H. Curry, general manager of Thomas A. Edison, Inc., said:

While no definite campaign has been undertaken, the company has in a few instances aided its artists to get on the air through radio. It appreciates the enormous publicity value to be obtained in this way, and it has called the attention of its performers to the advantages of radio broadcasting.

Like the phonograph, what conflict arose due to the introduction of radio wasn’t from fear or failure to recognize its opportunities. It was due to the simple fact that copyright owners have exclusive rights, and those rights should continue to be recognized no matter what technological advances come along, especially if the new industry is benefitting and profitting off the work of others.

E.C. Mill’s colleague Gene Buck, then president of ASCAP, summed up the position of composers this way:

I want to put into this meeting the sense that every member of this organization and myself have a deep respect and a great regard for radio. We have because we always want to go on record and say it is one of the greatest blessings put into the homes of this country. But, gentlemen, the men who take our material and broadcast it and derive a profit from broadcasting must pay the composer, because if they do not you are going to destroy the initiative. ⁹Id. Hearings pg. 60.

The radio industry resisted any efforts to provide for compensating composers, however. In 1924, the US Senate held hearings on a proposed amendment to exempt radio from having to license public performance rights for the music they played. The hearings were replete with dire predictions that having to pay composers would put an end to the radio industry.

One contemporary magazine article noted, “Radio broadcast flashed conspicuously in the national limelight this week. Not less than 15,000,000 persons are taking an active interest in connection with rapid developments taking place regarding broadcasting in relation to ‘freedom of the air.'” The same magazine included a petition that promised “Every effort is being made through the National Association of Broadcasters to keep the air free and untrammeled by trust control and commercialism.” ¹⁰Id. Hearings pg. 94.

Songwriter and ASCAP founder Victor Herbert saw through these claims. During the Senate hearings, he remarked:

A few years ago the phonograph companies came here with practically the same claim, that we were going to ruin them, just as the radio people have come to-day. We must have protection. Instead of taking away from what we have now and what the Constitution of the United States gives us, you should give us more, because that stimulates creation. You protect everything else. You protect trade; you protect the farmers; you try to protect everybody.

The bill failed to pass. A series of court cases in the mid 1920s established that a radio broadcast of music was a public performance, thus within the composer or publisher’s exclusive rights. ¹¹See The Story of John and Jack.

Did the broadcasters’ claims that compensating songwriters would ruin them come true? Not at all. In 1926, it’s estimated that only 1 in 5 households had radio; in less than 10 years, radio had reached 2 out of every 3 households. ¹²Id. Liebowitz at 107. Even today, with many competing media, 93% of the US population (12 years old and up) listens to terrestrial radio at least once a week, with an average listening time of over 15 hours a week. ¹³Arbitron, Radio Today 2010.

Television

I’m including television here even though its introduction wasn’t accompanied by the same types of copyright disputes as the phonograph or radio. Yet it certainly was a disruptive technology — television took audiences away from movie theaters. ¹⁴Id. Liebowitz pp. 99-103. It should be a perfect place to find evidence of the content/entertainment/copyright industry’s opposition to new technology.

In 1928, Popular Mechanics ran an article called What Television Offers You, where it interviewed a number of those involved in the nascent industry, including Dr. Lee De Forest, inventor of the radio tube. The author of the article also spoke to several in the entertainment industry about their thoughts on the new technlogy. Harry M. Warner, president of Warner Brothers Pictures, had this to say:

Dr. De Forest is absolutely correct in his statement that theater owners have nothing to fear from television. Television will no doubt be an advancement in transmitting photography, but to affect an industry which supplies entertainment is out of the question. On the contrary, should this invention be successful, it will be the greatest help to places of entertainment by stimulating interest directly in the home.

Carl Laemmle, founder of Universal Pictures, shared Warner’s opinions:

In the twenty-two years I have devoted to motion pictures I have never seen the time when science and invention damaged the industry. On the other hand, I have seen the business elevated to an art largely through the help of inventive genius. Therefore, whether television and radio movies are years away or just around the corner, I predict that, when they do come, they will prove a blessing and not a curse, and I sincerely urge those who may be panicky to remember that progress cannot possibly harm them. The very thought that these new wonders may at some time be perfected gives me a thrill of pride and greater confidence in the moving-picture industry.

Companies like Warner Bros. and Universal Pictures, which are still in the business of making movies, wouldn’t have survived nearly a century that was witness to some of the most rapid technological advancement if they failed to appreciate the opportunities of innovation.

Part 2 will look at Cable TV, the VCR, and beyond.