January 08, 2004
What? We Need to Clarify the Copyright Rules for Humming Postmen?

There is something very wrong with the copyright industry when we have this discussion as part of the question of what needs licensing.

Displacement of Concepts has an analysis of this post by Cory Doctorow who saw this article from last February ("We Can Work It Out" - Kim Howells Invites Musicians To Work With Government On Delivery Of The Licensing Bill), which Cory describes as:

    A new business-licensing scheme in the UK will allow postmen to whistle rights-cleared work without obtaining a venue license first.
    * Spontaneously singing "Happy Birthday" will NOT be illegal.
    * Spontaneous pub singalongs will NOT be licensable.
    * Carol singers, going from door to door, or turning up unannounced in a pub and singing, will NOT be licensable.
    * A postman whistling on his round will NOT be licensable.

Postmen? DOP responds with this:

    ...it's not that whistling postmen don't need copyright permission in the form of a license from the copyright holder of the tune they're whistling, it's that they don't need a live performance license from the government to whistle that tune. They very well may, however, need permission from the copyright owner. Due to the extreme narrowness of the "fair dealing" exemption to the UK copyright law's exclusive rights grant (there is no private use right in the UK beyond the terms of the copyright license granted by the owner, unless it is for "private study"), this is actually a real question. The real answer? Well, whether permission (or a royalty) is required in these kinds of circumstances most likely depends on whether the whistling in question could be considered a public performance of the work, an issue that -- as a typical lawyer -- I will refuse to comment upon until confronted with the facts of a particular case. (emphasis mine)

While I very much appreciate DOP/Rob Heverly's clarifying the issues on the confusion with language and the difference between the use of the term "license" for copyright verses business, I can't help thinking that it's utterly ridiculous that we are even discussing whether the Post Office need obtain licensing for postmen whistling tunes while working. I mean, what is the point here, what is the idea, what is the need? The postman is on duty, walking down the street, delivering mail, not performing on stage for money. He's entertaining himself. Is it the fact that he's singing while on duty, and there's the possibility of obtaining some sort of fee from his employer? Is it a desire for money, or a desire to control the content? I realize the statement is that licensing is unnecessary, but if they are thinking about it, it means they have some concern, the issue has come up, someone somewhere expressed a desire to control or profit on postmen whistling or someone somewhere thought they might violate a very tight reading of the copyright laws. The fact that this has to be clarified officially, formally, demonstrates how far tilted incumbent content control has become. Is the line of control just shy of postmen whistling? Or is it back at copyright's original oversight of distribution and profit? Where do we map the copyright industry's control when that control steps into our individual daily experience and wants to control what hummed tune spills out of our mouths, as we go about our lives?

Frank Field has this summary of Lawrence Solum's notes from the Association of American Law Schools, Section on Constitutional Law, Copyright and the First Amendment:

    Prof. Solum's closing discussion centers on some interesting points to consider in the face of the apparent conflict between the freedom of speech and copyright - the idea that the fact that today's copyright conflicts with the First Amendment might be an indication that the law has been over-extended.

Well said.

And Donna points to Scrivener's Error who puts it another way:

    We argue about what is a "limited Time" (Eldred), we argue about whether derivative works ought to be covered as part of "exclusive Right[s]" or perhaps as a "Writing"--and that's about it. We don't argue about some of the behavioral judgments that have crept into intellectual property law, often in contradictory ways.
Posted by Mary Hodder at January 08, 2004 08:14 AM

Holy friggin' crap, batman... this is just too silly. I think postmen should protest by whistling the most litigous record-company's songs... it's not like they 0wn the damn songs. In the words of George Bush, "Bring it on!"

Posted by: joe on January 8, 2004 02:18 PM
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