Who Owns the Songs?

As I mentioned in a previous post, after recording a few special lunar new year shows for my radio program on Taiwanese popular music, I learned that because of copyright issues, some of the songs I had originally recorded couldn’t be broadcast. This particular problem is connected to a whole host of related issues, so I thought it was worth discussing in some detail.

Basically, in late January the radio station received a notice from a company that claimed to own the rights to or have exclusive licenses to songs owned by several mostly defunct (or at least not actively releasing new music) record companies. This company said that they had quit the intermediary performance-rights organizations (equivalent to BMI and ASCAP in the US) that handle most music copyrights in Taiwan and that anyone wanting to use the songs they held the rights to should contact them directly. The notice came with a list of all the songs they claimed ownership of or exclusive rights to. The list includes hundreds of songs, including most of those released by several record companies that were among the most prominent in the latter decades of the 20th century. Many of these companies did have policies of buying the rights to songs from the writers, so it is not implausible that someone who bought the companies or their assets could end up owning the rights. But in the case of some of the songs, the claim to ownership seems questionable, as I’ll explain later. Then there’s the question of whether record companies should be able to purchase total control over the rights to songs, which is another point I’ll come back to.

The immediate problem arose when the radio station apparently contacted the alleged holder of these copyrights about broadcasting the songs they owned. From what I was told by an artist, the standard charge for broadcasting a song is just a few NT dollars, or somewhere around a tenth of a US dollar. But apparently the copyright owner asked for NT$6000 (about US$200) to broadcast one song one time! Of course no radio station could possibly afford to pay that much, so asking for such a rate was essentially equivalent to refusing permission altogether. Aside from the immediate frustration of being forced to exclude all these songs from any shows I plan in the immediate future, this situation started a whole train of thought about both this specific situation and about its implications for copyright law and ownership of culture in general.

My first question was who the copyright owner in this particular instance was. There were actually three notifications sent to the radio station simultaneously in the name of two record companies – one a fairly prominent one called Jima Records (吉馬唱片) that released many Hoklo albums in the 1980s and 1990s and the other an obscure one – and a third company, and another notification in the name of the third company addressed to Taiwan’s largest KTV (karaoke) chain. But three of the notifications were issued from the same address and had the same contact person, and the contact person from the fourth (sent to the radio station by the more obscure record company) was listed as an additional contact person on one of the other notifications, so it is clear that they are all connected. According to company databases online, the contact person on most of the notices is the person in charge of the third company. This company has an English name which hints at some connection to music or audio equipment, but I didn’t see any sign online of any products being sold under that name, and their company’s registered business scope mainly involves computer-related products. I also didn’t find any information that was clearly about the owner of the company; I found several people with the same name, but I couldn’t tell which if any of them was the same person as the owner. In any event, aside from Jima Records, this person has apparently bought the assets of Lige Records (麗歌唱片) and Kolin Records (歌林唱片), two of the biggest record companies of the 1970s and 1980s, along with a couple of other companies.

So is this person just a dedicated music lover who is rich enough to collect not just records but entire record companies? That’s a possibility; I know one man who out of an interest in old music has bought the assets of at least one defunct record company in addition to the one his family already owned. Perhaps this unknown person who has bought up all these other companies is still unclear about how he should handle the rights he has purchased, or he is for some reason confusing broadcasting with doing a recorded song cover (the rate quoted would be quite reasonable for something like that). But even if his true motivations are innocent, the simple possibility that someone could purchase the rights to such a large number of songs and charge astronomical rates to anyone who wants to use them in any way has some very disturbing implications.

While it may be possible to come up with innocent reasons why someone would want to buy up a lot of song rights and charge a high price for licensing (though it’s pretty hard to think of any really good reasons for the latter), another possible motivation is pure greed. Perhaps he thinks that he can do something similar to what some pharmaceutical companies in the US have done, which is raise the price of certain drugs to outrageous levels in the knowledge that those who really need them will have no choice but to pay. Of course no one needs music in the same way they may need lifesaving drugs, but if even a few people are so desperate to license a particular song that they’ll pay the asking price, he can make more from a single licensing deal as he could from a hundred at the standard rate. Of course one would hope that no one does agree to pay and thereby help such price gouging to succeed, but the possibility does exist.

But even greed is not the most disturbing possible motivation for such a move. The list of songs that this company and its presumed owner claim to own include a number of the most famous popular songs in Taiwan, including such songs as the Hoklo classics “Longing for the Spring Breeze” (望春風), “Four Seasons of Red” (四季紅) and “Mending a Broken Net” (補破網) and the Mandarin classic “Green Island Serenade” (綠島小夜曲). They also claim to own the rights to a number of famous songs from China, including “When Will He Return” (何日君再來). These particular ownership claims are dubious, as these songs are all over half a century old and the record companies that originally released several of the songs have been gone for almost as long. If the songwriters sold their rights at the time the songs were released, it seems rather unlikely that this company (or anyone else) could have somehow acquired ownership of them (it’s notable that in the case of the Japanese era Hoklo songs they only claim a few of the most famous songs, which represent a very small portion of those released by the original Japanese colonial era record company). It’s possible that they or a predecessor company bought the rights to the songs directly from the songwriters or their heirs decades after the songs were first released, but this doesn’t seem all that likely either, since none of these companies was particularly closely associated with the songs. As for the Chinese songs, the original company is (I think) now owned by EMI, so at most this company might have acquired an exclusive license for Taiwan, though even that seems improbable. For that matter, even in the cases of songs where the rights were definitely sold to the record companies, such as those released by Lige and Kolin, it's quite possible that the original copyright transfer agreements (if any were actually signed) have vanished, making it hard to prove any claims to the rights.

Regardless of the legitimacy of these ownership claims, if no one challenges them, by charging such a high price for anyone to use the songs (I’m assuming here that they would ask similarly high amounts for concert performances and karaoke, which seems likely), they will effectively cause these songs to disappear from public performances and broadcasts. Considering that songs like “Longing for the Spring Breeze” and “Green Island Serenade” are practically like alternative national anthems, this would be a major loss for Taiwanese culture, almost on par with locking the Mona Lisa away where no one could see it. But why would anyone intentionally strike such a blow at Taiwanese culture? It occurred to me that if China wanted to hold parts of Taiwanese cultural property hostage for political reasons, perhaps as part of an effort to claim them all as Chinese cultural property (which they already do, in the sense that songs and performers from Taiwan are always identified as being from “Taiwan Province, China” if they appear on Chinese broadcasts and such), one way to do so would be to buy up as much Taiwanese cultural property as possible and deprive Taiwanese of the use of it. While it’s not clear what good this would actually do China, a lot of their aggressive behavior toward Taiwan in the past has been counterproductive, and yet they still do it. In other words, logic doesn’t always play much of a role, so I don’t think we can entirely discount the possibility that China or some elements of its leadership (or some of its more nationalistic private citizens) might consider doing something along these lines.

I have seen no evidence that this company or its owner has any connection to China (their registered address is in Taipei), and it’s quite possible that they have none. But even if they don’t, it’s certainly possible that China could attempt something similar in the future, and it seems to me that Taiwan would be wise to ensure that no outside group could in the future attempt to obtain control of a large part of Taiwan’s cultural legacy in such a manner. For that matter, even if there is no political motivation behind this particular company’s acquisition of such a large part of Taiwan’s song catalogue, it doesn’t strike me as a good thing to allow anyone to obtain exclusive ownership to songs that in a very real sense are the common cultural property of all Taiwanese. Why should anyone have the right to deprive the Taiwanese public of the right to hear these songs, whether on the radio, on TV or in concert?

Of course this problem is not limited to music or to Taiwan; companies like Disney in the US also seem to be trying to gain control of a big part of the common culture of English-speaking countries. Disney not only owns the characters that originated with them, but has also bought popular cultural properties such as Winnie the Pooh, the Muppets and Star Wars, and by their widely promoted films based on public domain characters like Snow White, Sleeping Beauty, Cinderella, the Little Mermaid, and so forth, they have made their versions the ones most commonly associated with these folk characters, even if they don’t actually own them. On the other hand, even Mickey Mouse would now be in the public domain if Disney hadn’t successfully pushed the US Congress to change copyright law (the new version is sometimes jokingly referred to as “the Mickey Mouse Protection Act”). While it’s not unreasonable for the creators of cultural icons to want some control over their creations and the profits derived from them, it seems like there should be a better way to balance the rights of the creators and those of the public at large, especially where widely loved cultural properties are concerned.

After all, while Ludwig von Beethoven wrote “Fur Elise” and Stephen Foster wrote “Oh Susanna”, now these songs belong to everyone, as do thousands of folk songs for which even the original author is unknown. The same is true for numerous other parts of our cultural heritage. In fact, one could argue that to a certain degree, even recent cultural creations such as songs, books and films from the past few decades don't belong solely to their creators, much less to corporations that may have purchased the rights to them. For instance, people even dispute the right of someone such as George Lucas to make changes to his Star Wars films, arguing that the original releases are the true versions, and Lucas's later versions are not legitimate. Regardless of how one feels about this particular case (my own feeling is that while a creator like Lucas of course has the right to alter his own creations, he can't dictate which version will be most widely accepted or preferred, though his opinion inevitably will carry greater weight than anyone else's), it should be obvious that while the original creator may retain ultimate authority over his creations, just by releasing them to the public he or she must accept that they have become in some ways the common property of all. A song, book or other work of art may be interpreted or used in ways that its creator never anticipated, and at least some of these interpretations and uses may become an integral aspect of the work. But if a work is not even completely under the control of its actual creator, to what degree can or should we accept someone who didn't even create it trying to deprive others of the right to use or even enjoy it?

One possible solution to this problem already exists in the form of Creative Commons, which allows far more flexibility for people to use cultural creations, especially in non-commercial contexts. But even standard copyright law could use some revision. For instance, it seems like the law could be written such that for uses of a song such as broadcasting it on the radio or on TV, performing it in a concert or singing it in a karaoke or KTV there could be a standard rate, set by an appropriate government agency and adjusted periodically for inflation. This would prevent this type of price gouging and ensure that all songs remain available to the public, while guaranteeing that copyright owners still get paid. Another possibility is expanding (and more clearly defining) the scope of fair use. I don't think the average restaurant or pub should need to license a song just to play it on their stereo or PA system. If I had an album out, I'd want to make it as easy as possible for people to play it, even if they weren't paying for it. After all, extra exposure is more valuable in the long run. It might be a good idea to clarify - and restrict - the circumstances where licensing is necessary.

But another part of copyright law that I think could use some reconsideration is the length of the time that copyright is protected. According to current Taiwanese law, a song becomes public domain fifty years after the death of the songwriter. This means that the music for the songs “Longing for the Spring Breeze” and “Four Seasons of Red” is actually in the public domain, as the composer Deng Yuxian (鄧雨賢) died in 1944, while the lyrics are still under copyright, since the lyricist Li Linqiu (李臨秋) only died in 1979. But this period of time seems rather excessive. While it is fair that the families of a songwriter (or of an author or other artist) should get at least some of the benefit from their work after their death, especially in case where the creator dies young (sometimes even before they themselves enjoy any profit from their work), a shorter period like twenty or twenty five years seems like it should be sufficient. But in cases where the writer (willingly or not) has sold or transferred all their rights, it doesn’t make sense for the length of copyright protection to be tied to their lifespans at all. For instance, among the songs claimed in the case discussed above are the earliest popular songs written by two of Taiwan’s most prominent latter day songwriters, Luo Dayou (Lo Ta-yu; 羅大佑) and Li Taixiang (Li Tai-hsiang; 李泰祥), songs that were originally released in the 1970s. The latter died only two years ago, and the former is still alive. Why should this company that bought up all the rights to their songs be able to maintain copyright protection for them for half a century after they die? It’s not as if either the songwriters themselves or their families are getting any benefit from them. I think that a much more reasonable arrangement for songs or other cultural creations is that in cases where the original creator no longer owns the rights, they should become public domain around, say, twenty years after the creator signed the rights away. This would give the buyer of the rights plenty of time to recoup what they paid the actual creator (often an extremely limited amount in any case; Luo sold the rights to his first few songs for NT$2000 apiece in the late 1970s, and the usual rate at the time Li’s first songs were released was even lower), but not allow them to profit from something they didn’t create themselves for as long as a century in cases where the writer is particularly long-lived. After all, the original point of copyright law was to protect the actual creators. Now it has been distorted into a tool for corporate entities to profit off the works of artists who often get little real benefit from their work. We should make changes to ensure that it regains its proper focus, protecting the real creators of artistic works, while allowing the public at large to enjoy what is in the final analysis our common cultural heritage.

[Updated 2016/04/20 to add an additional paragraph on the ways in which works of art become to some degree public property.]