Matthew Covey (Tamizdat-Prague, Knitting Factory Europe)

Hi Bela-

One word for you: WOW! Thank you for writing to us about this, it is so exciting to see debates internationally on this topic. If it helps, check
out this website before tomorrow, and read whatever you can about the Conference that just took place in Washington DC about digital music rights:, they are a great organization, started by independent musicians themselves! It might help. Anyway, we have answered this together,our answers are in the email below. We also called some legal friends in NY about this, it's really interesting to us.

There are ethical as well as legal questions here. Let's deal with the legal ones first.

- Did Lukin have the right to forbid the access to the free mp3s ?
We don't know what the Hungarian legal system is up to in regard to this very new issues, so we can only answer according to US law, and hope that
the laws are similar.

The basic question here is who holds the PUBLISHING RIGHTS to the songs. In all situations the owner of the publishing rights has rights to revenue generated by a song OR a recording. Today, when a song is registered with a performing rights organization, a group specifies primary songwriter,secondary and tertiary writers, etc., and the percentages which each of
these writers can expect. Typically, the person who "wrote the song" holds the rights, unless the group decides to divide up the rights in a different way. There is a lot of grey area here, but the legal assumption is that if you get along well enough to make music together, then you get along well enough to divide up the percentages amongst yourselves.

The problem with the Trabant situation, of course, is how does one apply standards and laws from the current system retroactively on the old system?
Example: Here in CZ, all recordings by the Plastic People of the Universe were illegal contraband, so they were necessarily the property of the Government. After 89, it appears that new laws about authors' rights were applied retroactively, and as the Plastic People's recordings were issued commercially, the rights to this music was given according to the new
standards, meaning that the songwriter (not the musicians) controlled the publishing rights to the songs.

Now, though it is happening slowly, performing rights organizations (ASCAP, BMI, GEMA, SOSA, etc.) are slowly sorting out standards for collecting "Performance Royalties on the Web". These royalties, however, are still
based on publishers rights.

So the basic problem is that since Trabant presumably never established how the publishing rights of the songs were to be divided up, it's a purely legal question of what the default division is, in the absence of a legal decision by the band: are rights divided equally among all members, or do these rights default to the band's "songwriter?" I don't know the answer to this, but the good folks at BIEM-ARTISJUS should be able to tell you.

NOW, having said all that, one thing is for sure: All Lukin has rights to are, at most, his % of the revenues generated, according to Hungarian law, by "Performance Royalties on the Web". Now, since these laws were only enacted in the last few months in the US, I think it may be very likely that they do not yet exist in Hungary, in which case he has no legal ground to stand on. That's my guess anyway. At most, he has a right to a very very small amount of money (calculated as a % of a % of the revnues generated by
the use of the MP3, or possibly by the traffic generated by the MP3,which in either case, I imagine in minimal. He would be luck to have made 5GBPs, let alone 5000GBP by now.)

- Can live-recordinds from the past system be put on the Internet or published by the organiser of the concert?

No. I don't see any legal rationale for this. Under every legal system I know of, merely producing a concert doesn't give a person any publishing rights to the songs performed at the concert, and the publishing rights are
the rights necessary to secure for web broadcast. This is why it is so important, if a club wants to cybercast a concert, to get the artists to
sign a waiver beforehand.

That's the legal question. Now the ethical ones....

Bela, we are in the camp that believes that music has value and that there should be controls on how it is "used" by industries for their own benefit against the benefit of the artists. Having said this, we are not against the
idea of free MP3 tracks being used by artists, labels, distributors, or anyone who has GOTTEN THE PERMISSION OF THE ARTISTS for promotion. Though it may seem contradictory, we also feel that FANS (as opposed to companies) have the right to share music however they want to, on cassette, mp3, on their shoes, whatever they need to do to enjoy the music. The issue with
Lukin entirely depends on who really holds the publishing rights to the songs which were uploaded as MP3s. If Lukin holds these rights or a portion of them, he probably should have been asked before his music was used.

- Can such a behaviour of once a rebellionist now a trader be called rectionist (sorry for being brutal in terms)?

Do you mean, reactionary? If so, then sure, unfortunately it seems to happen in business all of the time, and it seems especially prominent in
former Communist countries. Many people who were once rebels were systematically building a business for the future. I don't think this is an
evil thing necessarily, unless abuses come from it as they would with any other corrupt business. Although, if Lukin does have rights to these
recording and was not asked before they were made free, then he probably has the right to ask for the royalties he is owed. We fear, however, that we are missing a separate political subtext here-?

- Can an mp3 site be understood as a free library (only three songs from an album) ?

Not yet, because unlike a library, when you download an MP3, you don't have to give it back after two weeks. If you downlaod an MP3, you become its owner, and somebody (hopefully the artist) should get paid. Ethically, we think an MP3 site should only exist if the site has obtained the rights to distribute music from the holder of those rights (hopefully the artist). At
least for commercially available music, we don;t think there should be a free library for music... it's hard enough for musicians to make a living,
within legalizing a system for giving away their work for free without their consent. There are con-artists running "download websites" so that they can make money fast. We met one of these in Hungary, and it was very frightening to hear the owner talking about how he would "deal with the legal things later." We don't support thieves and we don't support bad, ugly business which is illegal and does not support the artists whose work it is using.
The future of music depends on how well-informed artists are and how active they are to stop bad business-people from abusing the artists' rights to their own music.

This situation may seem different, because in this situation you're talking about music which is not commercially available. Is there a problem with making rare music available online for free as part of an "historical archive"? Yes, this is a problem, because what's to keep Trabant from
reissuing these recordings on CD, and finding out, much to their dismay, that everybody already has them, downloaded from an "historical archive"
site. I entirely understand the reasons Bahia put the music up, but at the end of the day, they are getting content for free which increases traffic on their website, and this traffic (theoretically, anyway) means profits. It
Bahia is making money off Trabant, Trabant should see some of it. (If Trabant want to donate it to Bahia, of course, that's their prerogative--
that could be what happened. I don;t know).

- Should the government support the author rights in these cases or is it a utopia (they have never so far)

Sure, the government should support artists' rights to the music they create. Sad thing is usually artists are the only ones left out of a massive system of corruption which ensures that everybody except the artist gets paid for the artists' work. Governments (and performing right organizations) are generally useless in most respects except in that their laws tend to be
followed because otherwise the police get involved. This is good, and the government should of course back the authors of art at all costs, unless the government wishes to see art disappear (and I don't think, even in the US, that governments wish for this to happen.) In the USA recently, musicians and music industry supporters marched on Washington DC for the very issues
that you are raising, asking the government to pay attention to the needs of not only major artists but mostly to the many independent artists whose rights to their own works could be in danger because of pirates and crooks.
The government has a responsibility to protect the artistic potential of its creative people, just as much as it is responsible to make sure that national galleries are not robbed and ruined.

- Does the term underground have any sense after the changes ? Is underground the same as non-commercial, or rather politically critical ?

Oh dear, we fear we're too young and from too far away to comment very usefully! But, it seems that there is a definition for the word "underground" which is different from its meaning to the concept in regards to the political situation under Communism. To us the "underground" is the
location (physical, temporal, psychological, cultural) from which a person can evaluate what is. Regardless of where this underground is, when it happened, or if it ever really existed, it is the place where one can search for the values that are altruistic, real, and worth fighting for. There are always undergrounds. There is an international underground in many different
kinds of music, from ambient, to techno, to psychedelic, to indie rock, to world music, to classical. This is what keeps us inspired by music, nothing ever stops anything, it all keeps on growing! Capitalism can bring along
with it many different undergrounds, they are just much more difficult to see and to find than under a system like Communism which (it seems) created such clear dichotomies.

- Whats your general opinion on music on the Internet ?

Generally, we're excited by music on the internet, but we're more excited by the debates that these changes have caused. Millions of people everywhere are coming together to discuss what you and I are discussing, that's cool,
and I hope that controls can be put in place around the world to ensure that artists' rights to the use of their music, to their mechanical royalties, to the sales of their music, etc, are ensured and protected by universal laws.

- Is the situation common in other East/European countries?

Not only in E/Central European countries, but these problems are world-wide and significant. Our advice to anyone would be to NOT ignore any information that you hear, and just keep on listening and reading about what's happening
everywhere. The internet is just one more positive and negative part of life, we must all learn how to both use it to our advantage and protect ourselves from its dangers. There is no free lunch, not even on the net.

The exact problem is that there are not enough laws yet for this new technology, and lawyers around the world are arguing about exactly what
we're talking about. It's frustrating, but interesting to know that we are all in the process of a technological revolution ; )Thanks,

Bela, you've made our night. Let us know how it goes tomorrow!

Best wishes,
Heather & Matthew