The Ethics of Piracy in the Music Industry

Abstract

Piracy in the music industry is now a growing global phenomenon, a fact repeatedly bemoaned by the major record companies. Piracy has always been a problem but the rise of new information and communication technologies (ICT) have made it a straightforward and relatively uncomplicated exercise to commit. Piracy through file sharing and illegal downloads alone may have cut album sales by as much as a quarter in recent years (Edgecliffe-Johnson, 2005) with as many as 40 illegal downloads for every legal one (Chaffin and Van Duyn, 2006:1). In response the music industry has campaigned for stricter intellectual property rights (IPR) laws enforcing their rights over music it records, produces and distributes. But the question remains: what does piracy by consumers signal to the music industry and society at large (if anything)?In order to answer this question this paper will be structured in the following manner: first, a broad introduction to the problem will be offered, namely, how music companies have skewed the balance between the creators and consumers of music with the resulting circumvention of financial compensation by means of piracy that is enabled by ever-improving ICTs. Second, piracy and the causes thereof as found in literature are discussed. Third, ethics, in particular normative ethics, is elaborated upon. Last, against this background the ethics (or lack thereof ) of piracy is discussed and possible answers to the question are given. Note that this paper does not attempt to address piracy on a commercial scale, but rather focuses on the individual who either perpetrates piracy by supporting counterfeits or bootlegs and/or engages in digital piracy. Neither is the issue addressed for geographic locations where IPR is not inherent in the cultural and legal tradition although the levels of music piracy are not insignificant.Music, the Music Industry, and Intellectual Property RightsMusic predates the written word with different cultures developing different styles of music which vary widely not only between cultures but also within a particular culture over time. The purpose for which music is composed and performed today ranges from religious or ceremonial to entertainment where it is sold as a product in the marketplace.The music industry creates, performs, promotes, and preserves music (note that the term does not encompass traditional music or the system of courtly patronage). Music is created by musicians and two main categories can be distinguished: amateur and professional. Amateur musicians compose and perform music for their own personal pleasure and do not attempt to derive income from music; as such, they are not part of the formal music industry until they become professional. Professional musicians attempt to derive income from their efforts in order to support the creation of further music; they can be employed by institutions (such as symphony orchestras, music schools, etc.), perform freelance work, or transform their work into a product to be sold in the marketplace.Musicians' work is protected so that the act of creation can be supported and stimulated by means of compensation for their creation (Prakash, 1999). These creations are referred to as intellectual property (IP), which is defined as the means of acquiring ownership over a particular resource that is intangible in nature. Du Plessis (1999) defines intellectual property as incorporeal or intangible property that comes into existence through the mental or intellectual activity and creativity of a person; once created the property has an independent existence separate from and outside of the person of the creator and has commercial value and thus merits legal protection. Most Western societies have accepted the social contract that in effect states:If you create intellectual property that will ultimately enter the public domain, and, thus add to our society's store of knowledge, we will give you an artificial and temporary monopoly over that property [Conlon, 2000:12]. …