By Max Morrison Smith and Ugur Nedim
Earlier this week, we heard news of the passing away of a musical genius. Prince was an artist who not only revolutionised the music industry through his unique style and prolific output of records, but who fought years of very public legal battles to protect his intellectual property rights and creative licence.
In 2014, Prince even sued own his fans for sharing his music online, but quickly withdrew the action – announcing he did not have a problem with illegal file sharing.
Prince’s death has renewed debate about whether music piracy is as bad as copyright holders would have us believe, including critique of the original purposes of copyright law and whether illegal file sharing furthers or impedes those objectives.
The digital age has revolutionised the way we access movies, music and video games.
A survey of the world’s top 20 illegal music file sharers found Australia in first place (84% of population illegally download), followed by the United Kingdom (70%), Canada (69%) and Italy (56%).
While pirating has always annoyed copyright owners, the internet has delivered a means to quickly and easily download vast libraries of material – unlike the ‘olden days’ when a person might need to borrow hard media from another.
Many argue that the high cost of digital media in Australia is the main reason for our high rate of copyright infringement. But is pirating a bad thing in the first place?
Copyright Law and Theory
Copyright law first came into practice as a legal concept in Great Britain in 1710 under the Statute of Anne. The statute’s purpose was to promote the development of knowledge and progress in science and the arts by encouraging scientists and creatives to produce.
At the time, it was thought that the best way to incentivise inventiveness was through giving individuals exclusive rights over their own inventions or knowledge. This notion is embodied in Australia under the Copyright Act 1968. The purpose of copyright originally, like many laws, was to serve the best interests of the general public by promote creativity.
John Rawls was a noted legal and political philosopher who famously stated in his seminal text ‘A Theory of Justice’ that justice equates to fairness, where fairness gives priority to the needs of the most disadvantaged members of society. It can be argued that online piracy undermines the established systems of distribution and power in the record industry by empowering new artists and inspiring listeners through its free universal distribution of music.
In today’s digital age, traditional copyright laws seem to incidentally restrict creativity. There is no longer a correlation between the expansion of traditional copyright monopolisation and an increase in the amount of works created. In fact, it has been argued that a decrease in copyright liability would lead to an increased amount of new works being registered and created.
In this way, online piracy is said to encourage creativity, acting as a form of liberation from the hackneyed conventions of traditional copyright by undermining its incentive-centric structure by dispersing music for free.
Effects of File Sharing
File sharing has the ability to encourage the creation of new works by providing listeners and fans with massive libraries of experience and inspiration, which can be instantaneously drawn upon at any point in time.
Additionally, it is argued that the act of file sharing brings internet users together through the creation of online communities and forums of like-minded individuals to discuss and share works, creating virtual communities and thus breeding further inspiration and collaboration. Even artists themselves are often avid consumers and participators in these communities, and borrow from previous works for inspiration in their own music. Rawls saw that the liberty of freedom, regardless of class structure and inequalities, would construct a society where incentives would encourage people to develop their talents and interests and exert them in a socially beneficial way.
Current copyright law seems to merely act as an additional source of revenue to these right holders at the cost of creativeness. The traditional goal of copyright was not to further the interests of the copyright holder, but to promote the progress of knowledge and creativity. Free expression is just as crucial to the progress of science and arts as financial incentives. Physical and digital music sales place music in lockup, which only can only be unlocked through payment by the consumer. This, it is argued, prioritises remuneration over freedom. The average consumer will be put off from purchasing an, album or song from an unknown, emerging or new artist.
Additionally, there is no conclusive evidence to show that musical piracy actually causes real economic loss to the music industry, with studies reaching conflicting conclusions.
While it seems logical that file sharing reduces revenue by providing a paid product for free, online piracy also increases an artist’s fan-base through free distribution, giving the artist a bigger pool of potential customers. Artists and musicians themselves have always made the vast majority of their revenue through touring, sponsorship and merchandising. The sale of songs and albums are not as unprofitable – only 0.013% of all albums in the last 20 years have generated profit. So if the free distribution of music garners more listeners and fans for the artist then they would otherwise have, it is argued that this would result in more revenue from the sale of merchandise and concert tickets.
For this very reason, a rapidly growing number of artists have taken to deliberately distributing their music for no charge in order to develop the free market and distribution digital piracy is able to bring. This is best represented in the emergence of the website Bandcamp, which provides a platform for both commercial and amateur musicians to display their music for free or for a customisable price.
As of July 2014, 626,500 artists had signed up to Bandcamp with this figure steadily growing. Whilst Bandcamp is completely legal, it reflects the benefits that piracy brought to the music industry by removing barriers which prevent individuals from publishing their own work, providing a venue for artists to share their music at virtually no cost. This allows all musicians to establish themselves in front of a global market with access to worldwide distribution, which has historically been reserved for the most mainstream and economically successful artists.
While established recording artists have a higher chance of economic success, they are being increasingly affected by the availability of free music. The free availability of music has allowed many musicians to become household names, enriched the musical pool and allowed more people to share in wealth.
A survey of 3,000 musicians by the Pew Internet and American Life Project suggests that a large proportion of musicians believe that “file sharing services aren’t really bad for artists, since they help promote and distribute an artist’s work to a broad audience”. 37% of musicians in 2004 stated that piracy had not really made any difference to their careers and 35% said it actually had helped their careers. Only 5% believed it had actually hurt them.
By engaging in piracy one is not rebelling at the law itself, but at those who make and enforce copyright law. This is because the social blindness that has been maintained by the relevant authorities in allowing this law to perpetuate has obscured the original purpose of the copyright law, and that is to promote art and science. No longer does the consumer have to sit idly by and allow the record industry to take control over what is accessible and how it is consumed. More power is in the hands of both the musician and the consumer. Rawls’ in his understanding of justice as fairness is able to justify the existence of online piracy because it can easily be interpreted as a social advantage that can be exploited for the general good of the majority.
 John Rawls (1971) Belknap, 9.
 Raymond SR Ku “Does Copyright Law Promote Creativity? An Empirical Analysis of Copyright’s Bounty” (2009) 63 Vanderbilt Law Review 09-20, 1673.
 Mary Madden, Artists, Musicians and the Internet (Pew Research Internet Project 2004).
 Chad Guo, “Copyright’s Online Destiny, or: How to Stop Worry and Love the Net” (2013) 4 Intellectual Property Brief 155.
 See above n. 3.
 Ibid. 17.
 See above n. 1.
 Ibid, 54-55 for a summary of these studies and their statistics.
 Ibid, 57.
 See above n. 38.
 See n 1, 57.
 Miguel Cutiongco, How Many Artists are on Bandcamp? (10 June 2014) Quora <http://www.quora.com/how-many-artists-are-on-Bandcamp>
 See above n. 14, 155.