Martin Kretschmer

Can Ideas be Capital? Factors of Production in the Postindustrial Economy: A Review and Critique

Economic and social relations are undergoing radical change, expressed in such concepts as “knowledge economy,” “weightless economy,” “postindustrial society,” and “information society.” The literature suggests the arrival of a distinct new factor of production—intellectual capital—replacing or perhaps supplementing land, labor, and capital. We give a historically informed theoretical exposition of capital as the durable result of past production processes, transforming future production while not being transformed itself and associated with a particular economic actor. We then construct a taxonomy of the possible characteristics and location of intellectual capital in postindustrial production.

Music in Electronic Markets: An Empirical Study

Music plays an important, and sometimes overlooked part in the transformation of communication and distribution channels. With a global market volume exceeding US

The Changing Location of Intellectual Property Rights in Music: A Study of Music Publishers, Collecting Societies and Media Conglomerates

40 billion, music is not only one of the primary entertainment goods in its own right. Since music is easily personalized and transmitted, it also permeates many other services across cultural borders, anticipating social and economic trends. This article presents one of the first detailed empirical studies on the impact of internet technologies on a specific industry. Drawing on more than 100 interviews conducted between 1996 and 2000 with multinational and independent music companies in 10 markets, strategies of the major players, current business models, future scenarios and regulatory responses to the online distribution of music files are identified and evaluated. The data suggest that changes in the music industry will indeed be far-reaching, but disintermediation is not the likely outcome.

Contested Collective Administration of Intellectual Property Rights in Music The Challenge to the Principles of Reciprocity and Solidarity

This article reports the results of a major study, conducted between 1996 and 1999, examining the impact of de-regulation and digital technologies on the global music industry. We analyse four negotiations in the process of bringing music to the world market: commodification, globalisation, delivery, and royalty management. We show that the location of intellectual property rights in this process depends on the mutual bargaining power of the parties involved, within a statutory frame vesting music copyright initially in the author. We describe the forces which have led to the appropriation of rights accounting for 80% of global publishing and recording revenues by only five companies: EMI (UK), Bertelsmann (Germany), Warner (US), Sony (Japan) and Universal (Canada). We predict that this regime will not last and consider the likely future location of intellectual property rights in music.

Privilege and Property : Essays on the History of Copyright

Individual intellectual property right holders in music cannot easily enforce their statutory claims to exclusive usage and remuneration. Since the middle of the 19th century, composers and publishers have responded by creating collective bodies, so-called collecting societies which monitor musical activity in a given territory, and collect and distribute fees accordingly. These societies, first established in Western Europe, operate on two principles: the principle of reciprocity, linking monopolistic national societies and the principle of solidarity, making a collecting service available to all right holders at roughly the same rate. The rise of the global media corporation combined with new digital production and distribution technologies has seriously undermined these principles. The article reports recent trends drawing on over 30 interviews with executives of the five largest multinational music firms and the major copyright institutions in Germany, Japan, Sweden and the UK, including the European Commission, the World Intellectual Property Organization and national and international trade bodies. We conclude that the present structure of music copyright is likely to collapse, skewing the distribution of revenues in favour of big corporate players and global musical products if there is no institutional intervention. Policy implications are discussed.

Intellectual property in music: A historical analysis of rhetoric and institutional practices ∗

Read for free online: this volume conceives a new history of copyright law. Privilege and Property is recommended in the Times Higher Education Textbook Guide (November, 2010).

LEGAL FORM AND CULTURAL SYMBOL

Proto-copyright institutional mechanisms first surfaced in the wake of the invention of the printing press. During the 500 years since, there has been a relentless drive towards expansion in the protection of ideas. The first statutory copyright, the Statute of Anne (enacted by the English Parliament in 1709) secured the ‘sole right and liberty of printing’ for 14 years upon publication of a manuscript. Today, the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs, signed in 1994 as part of the Uruguay round of the General Agreement on Tariffs and Trade, GATT) demands of members of the global free trade area the protection of 50 years from the death of an author; the European Union and the U.S. even enforce an extended term of 70 years post mortem auctoris. With the development of efficient communication and distribution channels, and the growth of the mass media in the second half of the 20th century, the full socio-economic impact of the concepts of intellectual property has come to be felt. Whoever holds the rights to an idea protected under the modes of intellectual property can prevent others from using it. This paper seeks to reopen the debate by looking at one specific area: music copyright, gathering historical evidence on three questions: Who lobbied for the statutory protection of musical ideas? Which institutional environment resulted? Who were to be the chief beneficiaries? It is shown that the rhetoric of author rights has been largely carried by third parties: publishers and record companies, i.e., investors in creativity (rather than creators) who also turn out to be the chief beneficiaries of extended protection. As a result, the institutional environment is extremely muddled, still displaying traces of feudal elements. Copyright, it is argued, should be split into three components: long term author rights to recognition and compensation, limited financial incentives for investors, and direct public support for desirable creative activity.

Is There a EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice

Writers in information and communication studies often assume the stability of objects under investigation: network nodes, databases, information. Legal writers in the intellectual property tradition often assume that cultural artefacts exist as objects prior to being governed by copyright law. Both assumptions are fallacious. This introduction conceptualizes the relationship of legal form and cultural symbol. Starting from an understanding of copyright law as part of systems of cultural production, it is argued that copyright law constructs the artefacts it seeks to regulate as objects that can be bought and sold. In doing so, the legal and aesthetic logic of cultural symbols may clash, as in the case of digital music (the central focus of this special issue).

Legal form and cultural symbol: music, copyright and information studies

The Court of Justice of the European Union (ECJ) has been suspected of carrying out a harmonising agenda over and beyond the conventional law-interpreting function of the judiciary. This study aims to investigate empirically two theories in relation to the development of EU copyright law: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law rather than – less discretionary – semantic and systematic legal approaches). We have collected two data sets relating to all ECJ copyright and database cases up to Svensson (February 2014): (1) Statistics about the allocation of cases to chambers, the composition of chambers, the Judge Rapporteur, and Advocate General (including coding of the professional background of the personnel); (2) Content analysis of argumentative patterns in the decisions themselves, using a qualitative coding technique. Studying the relationship between (1) and (2) allows us to identify links between certain Chambers/ Court members and legal approaches, over time, and by subject. These shed light on the internal workings of the court, and also enable us to explore theories about the nature of ECJ jurisprudence. The analysis shows that private law and in particular intellectual property law expertise is almost entirely missing from the Court. However, we find that the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs. We also find that the Court has developed a “fair balance” topos linked to Judge Malenovský (rapporteur on 24 out of 40 copyright cases) that does not predict an agenda of upward harmonisation, with about half of judgments narrowing rather than widening the scope of copyright protection.

Johann Gottlieb Fichte, and The Trap of Inhalt (Content) and Form: An Information Perspective on Music Copyright

Writers in information and communication studies often assume the stability of objects under investigation: network nodes, databases, information. Legal writers in the intellectual property tradition often assume that cultural artefacts exist as objects prior to being governed by copyright law. Both assumptions are fallacious. This introduction conceptualizes the relationship of legal form and cultural symbol. Starting from an understanding of copyright law as part of systems of cultural production, it is argued that copyright law constructs the artefacts it seeks to regulate as objects that can be bought and sold. In doing so, the legal and aesthetic logic of cultural symbols may clash, as in the case of digital music (the central focus of this special issue).