The Shackles of Copyright Law: Brazil’s Tecnobrega

Originally published in the Dec-2011 issue of The Music Business Journal – Berklee College of Music

The crisis in the recording music industry has diminished the breadth and diversity of record label catalogs at a time when there are more artists and musical works than ever. Around the world, moreover, local and regional music may be in danger of becoming marginalized as the traditional distribution structures focus just on pasteurized product. And yet there is hope.

New ‘open business models’ are being considered overseas and involve the creation and dissemination of artistic and intellectual works under a more flexible and autonomous copyright regime. If successful, it is argued that such a regime would generate more revenue for the music stakeholders and cut prices for consumers.

A book by two Brazilian writers illuminates the approach and may well shape thought in years to come.

Its title, Tecnobrega–O Pará Reinventando o Negócio da Música (’Tecnobrega-The State of Pará Reinvents the Music Business’) at first may seem pretentious.  But the authors are Ronaldo Lemos, Director of the Center for Technology and Internet Society at the famous Getulio Vargas Foundation (FGV) in Rio de Janeiro, and Oona Castro, FGV ‘s Project Leader.  Lemos, in particular, is active in academic discussions of intellectual property law around the globe, has been an articulate spokesman on copyright legislation for emerging economies, and serves as the director of Creative Commons in Brazil.

The work of Castro and Lemos is scholarly and relies on in-depth mining of qualitative and quantitative data in situ. It has become a part of the Open Business Project, a global initiative between Brazil, the UK, Nigeria, Chile, Mexico, and South Africa that is partly funded by Canada’s International Development Research Center (IDRC). Brazilian think tanks FIPE, an economics research foundation, and the Instituto Overmundo were also involved. Lemos and Castro also advise Brazil’s Ministry of Culture, lately an international advocate of a new legal architecture for music.

Tecnobrega, the music from which the name of the book is derived, is a genre from the state of Pará.  Pará is far removed economically, geographically, and culturally from the main centers of the country, Rio and Sao Paulo.  Brega, a kitsch regional style, became mixed with European Tecno, but the major labels or mass communication media never picked it up. (even though the old Brega was widely popular across Brazil during the 1980s, the genre faded as the industry declined). Yet it has now returned morphed into a new and complex ecosystem that provides revenues in the millions and employment for thousands. The key appears to have been both a loose copyright enforcement policy and an informal commercial structure that enabled the growth and promotion of the genre.

The traditional paradigm illustrates, among other things, the exchange between composers, producers, record labels, and publishers. This is not how the tecnobrega model works, for the interaction there is between the aparelhagens, i.e the sound system companies, the artists, the live and studio DJs , the promoters,  the venue managers, the mass reproducers, and the street vendors.

According to Castro and Lemos, the sequence of tecnobrega is as follows:

(i) artists, either  solo acts or  bands, record songs in self owned or other studios; (ii) the best productions are sent out by the studio DJs  to mass copiers; (iii)  street vendors  sell CDs locally at an affordable price, typically $2.50; (iv) DJs play their choice of songs at aparelhagem parties; (v) artists that have popular songs assemble bands to make performances; (vi) new CDs and DVDs are recorded and sold at concerts; (viii) the cycle is repeated while success lasts.

Artists are compensated primarily through live performances at an average of $1,200 per show.  Since royalties are not a feature of that business model, musicians are driven to perform their own songs, and 84% of the artists are also composers. In fact, what usually happens is that composers only form bands after their songs have become popular by either being part of compilation CDs or because they were performed at aparelhagem parties. Artists that are solely composers are rare, but such artists tend to write for jingles used in broadcasts and political campaigns as well as for songs that are exclusively commissioned to pay homage to the aparelhagens.

The aparelhagens, in fact, are a crucial element of the tecnobrega business. These sound system companies are hired to provide large setups that combine computers, sound, video, and lighting technologies for large parties in which tecnobrega music is played by DJ’s. There are four major companies running aparelhagens throughout the state, and several hundred of smaller ones. Aparelhagens are mostly family businesses. Local promoters are then responsible for organizing the parties and subsidizing the acquisition of new equipment for the aparelhagens—a major selling point in the eyes of the attendees. Ticket prices typically range from $5 to $10, with an attendance range between 3,000-5,000 people on average.  When aparelhagens debut their new equipment at special parties as many as 8,000 people have been known to attend.

The gatekeepers of the tecnobrega are the studio and aparelhagem DJs. They determine which songs will be a hit by either distributing them on compilation albums for mass reproducers, or by playing them at live events and through the electronic media channels. Not all the deals are based on the exchange of monetary values, and sometimes the network of contacts and the capacity of access to certain people is sufficient consideration.

It is important to note the informality of this business model. The absence of written contracts and the sale of mass reproduced copies by street vendors (approved by artists but in fact illegal) prove that the tecnobrega is a model based upon norms rather than law. The lack of a strong copyright culture, combined with the fact that the parties themselves foment this structure of distribution, breeds an environment conducive to growth.

Tecnobrega artists don’t expect any revenues from copyright exploitation, believing that giving up control allows for the free circulation of their songs thereby reaching a broader audience. Piracy is not seen as a threat. In fact, artists support the practice because it can significantly increase the size of the audience for their concerts. Considering unauthorized distribution as a marketing tool, artists sell their albums and DVDs at concerts with a price sufficient to cover their costs of production, and the show’s revenue comes mainly from ticket sales. In a country where legal albums are sold at a price well above what most of the population can afford, the tecnobrega model guarantees broader access for the lower-income layers of society.

The book suggests that in some cases the application of copyright protection mechanisms might not be necessary to stimulate creation and sustainability within the creative industries. As well, copyright mechanisms may have a negative impact on the access to music, which for the authors is a ‘cultural’ good.  The tecnobrega model navigates a grey area within the margin of the established legal canon, but the case of Pará shows that when creators do not make an issue of their private intellectual property, a music economy may evolve just as well.

Lemos and Castro urge the public to consider that there are new effective ways of generating income for the stakeholders of ‘cultural’ industries. They make the case for easier copyright policies in Pará. In addition, the tecnobrega economy emphasizes the sale of ancillary services and strategies that leverage publicity to sell other goods. Similar examples of these so-called ‘open business models’ are found in the technology sector with open-source software, in the Nigerian Nollywood film industry, in Wikipedia–and, as well, in the much scrutinized initiative of Radiohead offering their album at whatever price a consumer might be willing to pay.

For the stakeholders in tecnobrega, the formality of the copyright system stands in the way of their trade in music.  Although Lemos and Castro warn that the replication of the model is unlikely on a bigger scale and in a different context, it remains an exemplar of a vibrant musical exchange in an emerging economy. It makes everyone interested in the future of music pause for thought, for where intellectual property law cannot be seen as the chaperone of trade, but its shackle, musicians and the public at large are victimized.

________

The English translation of the book is pending; the Portuguese version can be downloaded free at: http://portalliteral.terra.com.br/lancamentos/download/715_tecnobregamiolo.pdf.

________

by Luiz Augusto Buff

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The G8 and Copyright

Originally published in the Aug-11 issue of The Music Business Journal – Berklee College of Music

On May 27-28, the heads of state of the eight most industrialized nations got together in Deauville, France to discuss world issues at the G8 Summit. Two days earlier, in Paris, French President Nicolas Sarkozy sponsored a special gathering of G8 member countries to discuss broad questions related to the Internet and the digital universe, including copyright law. Thus, key players from France, the United States, the United Kingdom, Russia, Germany, Japan, Italy, and Canada came together to exchange views over the Internet’s impact on society and the economy. The topic was included as an agenda item in the full G8 Summit.

France, the host country that pioneered the “three-strikes” (and you-are-out of Internet) legislation, has a conservative position in copyright law. Hence, the following final declaration issued by the heads of state:

“With regard to the protection of intellectual property, in particular copyright, trademarks, trade secrets and patents, we recognize the need to have national laws and frameworks for improved enforcement. We are thus renewing our commitment to ensuring effective action against violations of intellectual property rights in the digital arena, including action that addresses present and future infringements. We recognize that the effective implementation of intellectual property rules requires suitable international cooperation of relevant stakeholders, including the private sector. We are committed to identifying ways of facilitating greater access and openness to knowledge, education and culture, by encouraging continued innovation in legal on line trade in goods and content, that are respectful of intellectual property rights.” (Section II, Paragraph 15 of G8 Declaration–Renewed Commitment for Freedom and Democracy).

Criticism against this communiqué followed swiftly by one of its signees, Russian president Dmitry Medvedev.   Medvedev, who has made  strong use of web resources and is widely followed on Twitter, speculated that the other heads of state had formed a conventional opinion due to a  poor understanding of the Internet.  Copyright laws were written “50 or almost 100 years ago” and Medvedev advocated reform instead of punishment, fostering fair use exemptions, allowing format shifting, and easing the licensing process in order to facilitate the development of new legitimate business practices and legal activities for the average music consumer. Cynics would say that the ravages of piracy hardly affect Russia’s music industry, so a progressive stance on copyright is not a hard fit for that country.

Still, e-G8, which brought together international business leaders, media experts, and technologists, seemed to conclude that more copyright protection and Internet regulation, as supported by President Sarkozy in his opening remarks, were necessary.

However, a group of organizations concerned with human rights, liberties, and a more open civil society released a statement at the G8, pointing to a very different set of priorities, i.e. “expanding internet access for all, combating digital censorship and surveillance, limiting online intermediary liability, and upholding principles of net neutrality.”

In particular, Lawrence Lessig, the Harvard professor and Creative Commons founder, maintained at a press conference that the builders of the Internet first thought about societal, not business, needs.  Missing too at the gathering, he said, were the business innovators of tomorrow.

In fact, tensions over the Sarkozy consensus were not hard to find. At the panel  “Intellectual Property and the Culture Economy in the Digital Age”, Electronic Frontier Foundation (EFF) Co-Founder John Perry Barlow was added as the dissenting voice at the last minute. Panelists included Frederic Mitterand, the French culture minister, as well as representatives of traditional media companies such as 20th Century Fox, and Universal Music France.

Mitterand’s argument was classic: “if you protect copyright you protect artistic creation; if you don’t do that, you get a drying up of artistic creation, ending up with the disappearance of artistic creation.” And so was Barlow’s retort about “incentivizing creativity for people who create things, not [collect money] for large institutions who prey on them and have for years.” The head of Universal Music France then drew attention on the money spent nurturing talent, but  Perry Barlow contended that “it’s not IP enforcement that gets you guys properly paid”; for him,  compensation came from the development of a product of quality that people would really want to buy—in the same way that a movie’s success  showed a consumer’s willingness to spend money on product that was perceived as having value.

Undoubtedly, it is important to secure a “civilized” Internet–a favorite phrase of President Sarkozy. Perhaps the right direction is not to try to impose regulations that are at odds with the forward thrust of technology. The Rethink Music conference, held in Boston a month earlier, contemplated alternative schemes to compensate copyright owners in the digital economy that should have been further discussed by those responsible for setting global policies. The creation of an International Music Registry – a global database of copyright owners that would ease tremendously the licensing process worldwide – was also presented at Rethink, but not discussed in the e-G8 Forum. Thankfully, this subject was once again brought to life at the World Copyright Summit in Belgium last month. It seems that this idea will be likely be implemented, because of the efforts of Jim Griffin, a well known digital strategy consultant in the US, and the UN’s World Intellectual Property Organization.

By Luiz Augusto Buff