The Next Wave in Music Technology (and Copyright Policy) will be a Back-end Revolution

For a while now it has seemed that the end of the Music Tech gold rush isupon us. While certain streaming services have begun calcifying into market incumbents, smaller more fan-focused products have begun to buckle, showing the limits of mass market demand for niche focused services. With major labels and rights-holders having cooled on their issuing of licenses to start-ups (and having grown more aggressive in their negotiating with major players), many are raising the question of where to now for innovation in music tech and digital consumption?

Looking at where the gaps in the market are left, I would argue that while we might indeed be entering into a development lull in consumer-focused music products, there is enormous room to innovate in the way the music industry acquires, administers and collects remuneration for musical works. In other words, the next major development will not happen in the “front end” of how fans consume music, but rather in the structural “back end” of how the underlying business itself works.

Music’s Back End: A Burning Dumpster Fire

As a starting point, its worth reiterating what anyone who works in Music regards as an obvious observation: licensing and rights administration are a god-forsaken mess.
Consider the path of a single track: an artist composes a song and writes some lyrics. In order to manage these rights effectively, they assign or license these rights to a Publisher who manages and collects remuneration on their behalf.
From there, they record a track with a Record Label who in return for the Master Right in the recording gives them a contractual right to a royalty. The management of some of the sub-rights associated with this Master Right will be farmed out to a collecting society, while other rights will be managed by the label itself. In addition to the traditional rights of yesteryear, today’s artist will also be highly concerned with the Sync rights, UGC derivative rights, digital distribution rights and public performance rights they might own in a work which may or may not have been grabbed by the label as well. This will be further complicated by the fact that consumption will happen concurrently in multiple jurisdictions over a variety of social media platforms with a host of different institutions issuing licenses and collecting payment on their behalf. Considering the popularity of EDM and Hip-Hop in today’s industry, you’d also need to consider the whole rigmarole of clearing samples or consider in turn how to manage a song being remixed or sampled into other pieces of music.

The system of rights management institutions is fragmented, uncoordinated and highly inefficient. A simple look at the immense litigation history in this area should settle any skepticism.
Multiple concerns have been raised within the industry itself about the ability of middlemen institutions and administrators to effectively and fairly collect compensation on behalf of the rights-owners they are meant to benefit. We’re stuck with an awfully quaint analogue back end in an era of multi-jurisdictional, multi-use, high volume digital consumption. Seen from another perspective, Music Copyright itself has a UX problem and it is reasonably clear that this system is at worst not fit for purpose and at best, begging for disruption. And here is where the next space for Music (and dare I say legal) Innovation lies.

Glimpsing the ‘Futch’

Imagine a platform wherein artists and rights-holders could easily upload a track and monetize their rights, issuing licences for live performances (such as DJ sets), sync opportunities, remixes or derivative uses from one neatly indexed and centralized space where users wanting to license rights could easily pay (using an integrated payment system) right next to their normal music listening and consumption. If it was a pitch meeting, “imagine a Soundcloud meets Licensing Ebay”.

Such a system would minimize waste, ensure clear transparency for rights-holders and would remove obstacles and checkpoints, creating a much easier user experience for not just those on the business back-end of music but consumers who want to attain rights for uses other than just listening.

The Game done Changed

Now you may ask, if this was so easy why hasn’t anyone done this already? And what would be different now? While there are a host of factors one could pick out, I’d highlight three particular elements which are changing dramatically and could open a space for this type of innovation where none had been before:

1) Rights Management Technology

Part of the justification for these middlemen institutions in the past was rooted in the fact that monitoring and controlling the exploitation of certain rights was an incredible schlep. How could an artist (let alone a label managing a whole roster) follow up on every use of the music it had the responsibility to control? It made sense in such an age for artists and labels to outsource this work to professionals who could track the usage of their work and claim the fees owed to them.

From a technical perspective however, we are fast moving away from this space: from the rise of constantly improving Content ID crawlers to Copyright Transaction Applications for the Block-chain, we are entering a period wherein following the paper trail of music usage is becoming much simpler and transparent. Instead of trained experts roughly working out where and for how long a work was used, we will soon be able to easily trace and target for monetization where works are being digitally consumed (covering both exact copies and UGC derivative works). If a platform could integrate and combine these technologies into a larger platform of indexing, consumption and payment, it would naturally follow from the artist’s original upload of their work thus excluding the need for a separate specialized institution or individual that would do this work.

2) Industry Practice: the shrinking importance of Record Labels

In the past, artists would sign deals with record labels as at its core, these institutions had (almost) exclusive access to the channels of distribution. If you wanted your music to be turned into consumable physical format (vinyl or CD) and pushed to an audience, you needed to do a deal with a label. With the advent of D2C music platforms however, artists can distribute their music to a global audience easily thus bypassing the need for their intervention. Already this has resulted in a boom of independent artists, smaller collectives and niche labels, with major record labels increasingly being seen as more of an agency for Marketing and Business Development.
The upshot of this as that while in the past artists were tied into labels and their historic contracts to publishers, collecting societies and other middlemen, artists can now entirely circumvent this process and license their work directly, eschewing the need for a corporate styled one-size fits all policy. Since independent artists are already licensing their consumption rights to these platforms, its of course a short jump to see them licensing all their other rights and more technically, licensing the right to license these rights on their behalf.

3) Consumer Behavior: Reintermediation and One-Stop-Shops

Reintermediation is a fancy way of saying consumers have grown tired of a fragmented digital media landscape and are moving back to centralized platforms wherein they can more conveniently consume large libraries of content. Especially in music, the days of users bouncing from one artist-owned website to another to score a download are over and users want to land on one single platform that can provide them with the bulk of their music consumption needs. Within my own use, I’ve moved from exploring the wide digital beyond of music blogs to a simpler diet of Soundcloud and Apple Music. Users might replace one of these services with say Youtube or Spotify, but by and large, we’ve seen users re-congregate around a handful of hubs which can provide them with everything. What does this have to do with the next phase of disruption and innovation in the music business you may ask?

In short, economies of scale and market consolidation: In a world where there are a 100 platforms splitting artists and users, rights-holders would be spread too thin in trying to track and manage the use of their work. Additionally, smaller companies without the existing audience of consumers, engineering infrastructure and brand goodwill would be unlikely to actually deliver such a system.

We are currently moving into the opposite set-up however where a handful of platforms could be one-stop shops for all uses as they have the necessary foundation of licensing deals, engineering infrastructure and existing consuming audiences to make good on a promise to deliver. Artists and rights-holders would thus be more inclined to take the leap of faith and hand over the full gamut of rights and administer them from one concentrated place, something that simply couldn’t have been done in years past.

Suffice to say, we are entering a time where some of the major elements (industry practice, management technology and market consumption) are all transforming, opening the space for a profound disruption to the back-end of music. Exactly what product solution and which company will break this frontier is unclear. Personally If I was playing around with it, I’d go for something like an integration between Soundcloud, Kobalt and a Blockchain-based Copyright Transactions solution like Ascibe. However I think what we could reasonably predict is that such innovation will happen within one of the dominant platforms (i.e. Spotify, Soundcloud, Youtube etc) and not from a start-up alone considering the point raised above.

Problems and Challenges: The Law (as per usual)

As we have seen in the past, dramatic changes in technology necessitate changes in law and copyright policy makers are faced with the somewhat exciting prospect of being able to innovate creatively in trying to create a legislative framework that will complement this shift.

(In my own somewhat nerdy imagination, I’m dreaming of a policy and technology combo where DJs need not clear a sample before usage and any revenue that is generated off the song automatically gets shared with the original rights-holder.)

However, before we sit back and dream the dream of a cleaner and better oiled Music Industry Machine, it would be worthwhile to point out a major concern: the threat to Safe Harbor.

On its own terms, this is a helluva complex topic being debated right now and I’m about to mix it up with some cheeky legal speculation. So please bear with me.

Safe Harbor is a copyright principle which defends Digital Platforms hosting User-Generated Content (Youtube, Soundcloud etc) against liability for hosting copyright-infringing material provided that they have adequate take-down mechanisms in place. The Traditional Music Industry of late however has fiercely argued that Safe Harbor creates “a value gap”. In short, the value-gappers moot that user-upload platforms don’t reliably catch unauthorized uses of copyright works and thus financially benefit from unlicensed copyright material. Their response to this currently is to lobby for the dismantlement of Safe Harbor.

The upshot of this is if we’re already having major challenges around Safe Harbor in the context of Streaming alone (involving the administration of only a couple of rights), this would almost certainly metastasize into a much larger mess and circlejerk of concerns about revenue being missed and the Value Gap widening if the full palette of an artist’s rights were being administered by one platform. Thus in terms of the next wave of back-end innovations, it is particularly important that Safe Harbor is protected and maintained.

More generally, I strongly feel this move to dismantle Safe Harbor protection is wrong-headed as it would lead to the impediment of innovation in the tech space and freedom of expression for us all. There are other alternatives to dismantlement which could achieve an equitable outcome without this loss: inspiration could be drawn from the legal remedies of Unjustified Enrichment or an Account of Profits. To preempt litigation, platforms should be willing to enter into compensatory agreements or alternatively, independent bodies could regulate this area.

That said, even if a Value Gap still existed afterwards, such a gap would be far preferable to the current inefficient and opaque mess which is the music copyright licensing and administration game.

In order to safeguard the space needed for the next wave of innovation in music tech, it is crucial that we resist this campaign against Safe Harbour and advocate for other solutions which would allow the industry to close the gap and still be provided protection from liability.

Looking Forward

We are not at an innovation horizon event but rather at a point of inflection. Cleaning up the back-end of music through smart applications and policy changes will be not just a boon to musicians, users and rights-holders but also a fantastic opportunity to rehabilitate the public’s trust in the integrity of the Music Industry and Copyright more generally. This should be a prospect of great interest to developers, music fans, policy makers and investors alike.

Internet Culture, Copyright and Old Men in Wigs

The more I learn about Copyright Law, the more I sit back and find myself amazed at just how little of it makes intuitive sense in this digital age. Of course, some of it is quite brilliant in its insight into how creative and cultural life should be protected, commercialized and regulated. However, all too regularly I am genuinely surprised that the law seems so fundamentally out of step with the actual practice of creators and the audiences who consume their work.

And while we are yet to work out what abstract criteria makes ‘good’ law, surely one of the hallmarks of inadequate and outdated law is one which regularly conflicts with intuition and reason about how things should work.

In short, my objections amount to the fact that Copyright Law in essence is meant to protect and regulate creativity and culture; however the internet has radically changed culture and creativity at every level and current copyright law does simply does not fit this new reality.

This all came to a head two weekends ago during my attendance of a discussion panel titled “Can Copyright Preserve Culture?” as part of the larger Oxford Intellectual Property Moot Competition that I participated in. The panel was split between those in law (academics, lawyers and an ex-judge) and those in industries that deal extensively with copyright issues.

Although almost everyone has a vague idea of what copyright is, in essence what copyright really is about is the rules and regulations that deal with creativity and works of culture and thus discussing the role that copyright plays in preserving culture really goes to the core of assessing how this area of law is working for us. And well, the report back was the type that would disappoint a parent.

One of the non-law panellists was a librarian and archivist at a major library who spoke of the ludicrously impossible task of digitalizing books and other written texts due to the legal requirements of acquiring a license from the author/owner. Her point was simple: we could easily digitize and share this enormous ark of knowledge and writing online, but we are entirely hamstrung by the nightmare of having to track down every author and receive permission.
Another non-law panellist, an art curator, spoke about the amount of non-commercial public shows or exhibitions he had to cancel or curtail due to the logistical and financial difficulties of acquiring licenses from the artists concerned. For them the answer was clear: whatever positive role copyright used to play in preserving culture, it’s far too cumbersome an obstruction in preventing public accessibility for us to think that it is functioning correctly at the moment.

The last speaker was a retired Lord Justice of the Court of Appeal who had cut his teeth as a barrister working in copyright and had later, as a judge, delivered some landmark decisions in UK copyright law. One of his key points was that although copyright law has immense value in potentially protecting culture, it ultimately was a neutral tool which society itself needed to pick up to protect culture. Ok, nothing too out of place. It was his answer to an audience question at a later stage though that really floored me.

The question dealt partially with how copyright law should respond to online piracy and internet use. The judge’s answer included a sharp rebuke of the evils of piracy but then he went further and quite confidently declared: The internet has made no real contribution to culture.

I sat there, mouth agape. The internet has produced no meaningful culture. I looked like a comically bad actor overplaying his reaction to a car crash scene.
And as a result, he continued, copyright does not need deep change but rather some tweaking here and there to prevent piracy etc.

My horror mildly intensified when he used Wikipedia as the murder weapon itself to convict the internet of adding nothing reliable (and therefore meaningful?) to knowledge or literature. I mean afterall, his Wikipedia page was incorrect.  

Later, in a twist of fate, I was randomly seated directly opposite the judge/his Lordship at the subsequent formal dinner. Except the formal dinner was to be an ‘egalitarian’ formal dinner as we were given the firm instructions that this dinner would have no high table and we were to abandon formal titles so that ideas could be discussed openly and freely. 

For non-law readers just a quick explanatory note: Law is a conservative profession with a deeply entrenched hierarchy of respect. It’s like the military’s second cousin with a crazy wig. Deference and polite indirectness are the water in this anti-gravitational upward stream. Apparently, not tonight though.

So, armed only with a couple glasses of wine in me and the firm belief that the internet is the most important thing to happen to culture since the invention of writing, I tried to explain to his Lordship why I believed he was absolutely wrong. I mean, my God, where to start? Respectfully m’lord, the game done changed and while I cannot give anything close to a full account, in essence there are two separate components of culture which the internet has radically altered: the process and means of creation and the process and means of distribution and consumption.

Here we go.

1. The Creation Process and the Internet

To start, one of the most obvious, yet complex aspects of the internet has been the effect of making creators more interconnected amongst themselves and integrated into larger creative trends globally. The internet has thus ushered in a means of collaboration previously unseen before where people can co-create works with people they never would have been able to work with previously due to the confluence of dispersal, time and space. We’ve seen this in particular with sub-cultural fashion and music trends but notably in cross-border collaboration. For example, performers in Cape Town may have music written for them by studio producers in New York and have their work consumed primarily by audiences in Japan. This interconnectivity has had a marked effect on the type of creative work being produced.

The internet has also changed the actual tools themselves used to create; they are cheaper, more accessible and of course a lot more ‘able’. This has both dramatically widened who makes content as well as effecting the type of content that gets made seeing as these tools provide both new mediums (like GIF Art) or compelling ways of transforming  pre-existing content into new creative work i.e. (derivative works, remixing, sampling, re-coding, photo-shopping etc). This has seen an unprecedented boom in amateur creation, where people who never before would have had the resources or time to create are now engaged in a global workshop of creation and modification. Popular and amateur culture is after all still culture and so purely as a democratising force the internet needs to be given credit.

Linked to these two points but certainly its own phenomena is that an entirely new paradigm of authorship has emerged – Memes and other User-Generated Content, as a prime example – where there purposively is no determinable author or artist but rather a creative work created by an interminable crowd adding, sharing, re-interpreting or deconstructing a particular concept or idea.

To this first leg, the judge countered with two points: firstly that it’s very rare for creative works authored by more than one person to be any good (with the exception of popular music) and that most of this process seemed indistinguishable from ‘game playing’ and was not akin to the (slightly romantic notion) of a creative genius who toils in the creation of a masterpiece.

Hmm, some interesting points.

As to his points about games, the first implication I want to respond to is it that the works people are making are neither trivial nor childish but often have real artistic integrity or literary merit. Then again, even if this was not the case and these were just ‘games’, games still are part of human culture. In my last post I linked to an interview with the creator of ‘Magic the Gathering’ which perfectly illustrates the deep creativity involved in game creation and participation.

Regarding his point about single authorship, – what about film making as a deeply collaborative process between multiple creative minds working towards a creative whole much greater than the sum of its parts? Unfortantely this rebuttal didn’t come to mind at the time.

I replied instead that artists rarely create in a vacuum but borrow, comment on, and react to other artists’ work and their cultural context, which is now infinitely broader and richer. Creation has a conversational character and the conversation has moved from the local to the global. Also much in the way that film is a collaborative medium by its very nature, we’ve seen the emergence of certain forms of creation which just inherently allow for huge cross collaboration. To paraphrase Lawrence Lessig: we’ve moved from a ‘read only’ culture to a ‘read-write’ culture, where audiences are no longer passive consumers who simply consume a work but actively take the content they consume and modify, extract, recombine, remix, redeploy it etc thus giving that work a substantially new dimension. In copyright law we refer to these as ‘derivative works’ as they are derived from a pre-existing work. These derivative works are often hugely creative and while yes, derivative works existed before the internet, due to the ocean of available content, powerful tools and ability to be connected to a greater community we’ve seen a phenomena whereby the boundaries of an existing work are significantly extended by people creating and sharing their reactions to and interpretations of that work. This doesn’t mean they are no longer individuals creating, but surely the idea of a single lone author locked away creating by himself is decreasingly becoming the hallmark of the creative process?

So certainly on this aspect of the creative process, I would argue that the internet’s impact on culture is gargantuan, and I believe points to a strong need to reform certain areas of Copyright Law in order for it to take into account these new approaches to the process of creation.

2. The Internet’s effect on the distribution and consumption of content and creative work.

The internet’s contribution to culture does not end at the creative process. Instead, it’s fundamentally changed the way content is distributed to and consumed by audiences. Once again this has manifested in a multitude of ways, few of which I capture here, but more importantly, it’s crucial to be aware of how this feeds back into what content gets made in the first place.

Firstly, we’ve seen the decentralization of distribution. When we think of the lived reality of culture, we must remember that we mostly access creative works through certain institutions and structures such as television broadcasters, major newspapers, film studios, record labels, radio, public galleries and museums etc. The culture we mostly consume as audiences is mediated through these macro institutions as they both control the channels of distribution as well as, in many cases, having the finances and resources to fund the creation of content. Thus in the past, record labels, publishing houses, galleries and movie studios were the gatekeepers to an aspiring creative’s career, as they controlled the channels of distribution connecting an audience with a creative work. If you wanted your record sold, your book read or film seen, you had better hoped and prayed that someone in one of those institutions decided you were bankable or an acceptable addition to the roster of ‘culture’.  This in turn had a major effect on the type of work we saw being made in the first place.

And now? Look no further than Youtube’s own slogan: “Broadcast Yourself”. What an eloquent diagnosis. The web has liberated us from the old means of distribution. Now anyone has access to a channel of distribution which could potentially reach an unlimited audience. This process is not without its problems. Having moved away from this old centralized system, it has radically changed not just the variety of content available to us but also the incentives for creating in the first place.

Secondly, the internet has lowered (arguably obliterated) reproduction and distribution costs thus dramatically increasing consumer access to creative works and culture. Through legal or illegal channels, one can now watch almost anything they want to. The consequences of this are numerous  both in shifting the dynamics of the market (we’ve moved from a market of content scarcity to one of content over-supply) but also in allowing people access to content that would never have been available to them before. Having grown up in South Africa, there is simply so much content I would never had access to without the internet as there was simply no other way of accessing it otherwise. Likewise, content that previously was all but impossible to view often becomes readily available and accessible, whether it is rare music records or films etc. This increased access has undoubtedly enriched us culturally and has changed our patterns of consumption which in turn has had a knock on effect to the type of content that gets created.

Back to his Lorship on this issue of distribution he counter-pointed with the problem of online piracy. His aregument: Surely this undermines culture as creators are denied the financial reward needed to sustain their labour and larger producers are reluctant to make content because they might not see a return on their investment? This sharp disincentivisation will thus cause a net-loss for culture in the long run.

He raises a pressing issue.

Piracy is an startlingly complex phenomenon that deserves PhD-thesis size treatment and not just a short retort in a blog post. Part of the problem is that ‘piracy’ is a technical definition which covers some pretty harmful practices as well as some practices which are benign or create more good than damage. However there are two short arguments I mooted to the judge that I think need to be considered:

i) In terms of merely preserving culture, the biggest problem historically has simply been the physical loss or destruction of creative content whether through plain negligence or the intentional destruction thereof (see this depressing list of destroyed libraries). This is also not an ‘ancient’ problem.  For example, the US Library of Congress estimates 75% of all silent films from the early days of film are lost. Seventy. Five. Percent. This was not even 100 years ago. And what is online piracy but the creation of an illegal but exact copy of a work? Undoubtedly one of the silver linings of the piracy cloud is that cultural historians in a 100 years’ time will simply not face the same extent of loss or destruction as they will possibly be countless copies of that file throughout the world. In the macro-picture of cultural history, this should not be overlooked.

Secondly, although piracy can indeed be hugely problematic, often the value added to culture by facilitating access to a work which would previously have been inaccessible outweighs the potential economic loss that would occur to the copyright holder. For example, let’s say one downloads an illegal copy of a work readily available and currently on the market. The loss to the copyright holder is clear here and outweighs the gain to culture, doubly so if it’s a Michael Bay film. Compare this to a situation where someone downloads a work that only had a limited release and is now entirely unavailable but for illegal means. In this situation the new availability of the work marks a gain to culture over the economic loss to the copyright holder as they would not have been making money off the asset anyway.

Even from a cursory discussion of the subject it is undeniable that the internet has changed culture radically. As such, does this not call for us to reform copyright at its core rather than continue in the current ad-hoc approach of piecemeal changes arsing from litigation?

To his considerable credit, his Lordship, a senior judge and legal mind, sat and listened to me for almost half an hour, only occasionally pushing me on an assertion or stopping me to ask a question. I have deep respect for the man, particularly so after his engagement with me seeing as he is a senior legal figure and I am literally some kid. I appreciated his listening beyond words.

Sadly however, despite my best efforts, he seemed unconvinced.  Which I guess is kind of to be expected seeing as the gentleman is in his mid-70’s and internet usage is sharply marked by age. Admittedly the internet’s effect on culture is still relatively recent and the generation gap would reasonably effect one’s perceptions as there is no first hand exposure to what is going on.

This raises a huge question though, and while it might seem somewhat harshly critical  it is one that we should be asking seeing as judges create legal precedent and thus decide both indirectly and directly much of our copyright law:

If copyright looks to legalize and regulate culture, are the people who determine our copyright law (both judges and legislators) too disconnected from us digital citizens to create a regulatory system that matches our intuitions about what is just and economically efficient in this new digital world of culture?

If one’s starting position is that the internet has made no meaningful contribution to culture, well, I’m not sure that points us in a good direction. Sure, this is just one judge and is not an accurate sample of all judges. However, if the average age of judges is anything to go by, it would not be surprising if most judges were unaware of the extent of the cultural shift happening in cyber-space. Certainly there are some exceptions to the general trend but by and large I’m yet to read a judgement which seems aware of these changes and willing to make a significant step forward.

“Wait a second,” I hear you say, “judges are not supposed to be the major drivers of law making or legal reform, this is the job of legislators.”

Good point. Sadly we’ve yet to see legislation passed that takes this meaningful step. Instead, what we’ve seen by and large is a legislation process driven by a powerful lobby of established copyright owners who have tried hard to maintain the old market conditions by reducing the liberating impact of the internet. Furthermore, this political lobbying has been accompanied by a strategy of litigation aimed at achieving a similar obstruction to digital progress. Of course, this is somewhat ‘understandable’ as the idea of litigation is that parties represent or advance their interests as best they can and a neutral arbiter decides what would be the fairest and most equitable outcome for all. That being said, the judges—whose task it is to find the most equitable outcome between parties— are arguably disconnected from the situation on the ground.

SO, if this is the case, now what? I believe it’s crucial that we counteract this in order to create a new system of copyright appropriate for the digital age which not only ensures fair compensation and protection but also maximises creativity and access to culture.

And while legal reform is never easy or quick enough (even when it seems obvious), it can be jump-started by civic awareness and participation. As citizens and potential voters, I’d say we need to make this ‘an issue’. Granted, copyright reform may not be as pressing an issue as climate change or global poverty, but society is shaped by the information and content we have access to. If the system regulating that is broken, this might have ominous consequences down the line. Not only we do need to put this to politicians but we need to incorporate it within other activism. We need to begin a real societal discourse, from both creators and consumers about the rules and regulations we want binding us. This mindset that copyright law is fundamentally sound and the internet has made no cultural impact needs to be changed. This is surely the very core of democracy.

How to get started?

I think the first thing to admit is that this is a technical and complex area of law which might be quite alienating to most people. This is of course a challenge as it’s easy to have abstract calls for reform only to have their potential impact diluted by vague demands. Certainly taking the Occupy movement as an example, one of the most common crticisms made was: we hear your frustration but what do you counter propose in its place?.  Without firm demands or solutions causes tend to lose steam.

However it doesn’t need to be that difficult. There are A LOT of very specific areas that we could look to reform. For example, let’s take the element of remixing, sampling etc. As mentioned in copyright law this is called a ‘derivative work’. This would include non-commercial user made works (i.e. fan fiction, remixes, parodies, sampling) but also commercial works like films based on books, official translations etc. Why not distinguish between those derivative works which are made by users for non-commercial purposes which should not be considered infringement and those derivative works which are clearly commercial in nature and thus should be considered an infringement.

Luckily, some countries seem currently in a period of change: the EU is in the process of Copyright reform, recently closing public consultation. A response paper should be out before June although we’ll have to see if anything truly innovative will be proposed rather than a repeat of the past. What I would recommend to those in EU states for now is to sign up with this website I found https://www.wepromise.eu/en which rates politicians running for election to the EU parliament on their commitment to internet freedom and privacy. One of their ten points (among many other important ones) is copyright reform. Elsewhere, we need to create awareness and encourage citizens to put pressure on politicians for answers and reform.

While this might seem a little preachy (mega-soz), the internet has ushered in a new paradigm of creativity that we have not seen since the invention of the printing press. And current copyright law is like trying to apply a 2D mathematics model to a 3D object. This is a cause worth advocating for as after all we are talking about our own right to participate in the cultural life of society. And since the internet has changed the very foundations of culture, in order to save copyright, we need to stand up and change the law at its root.

 

Weekly Digest: Hivemind Gaming and Copyright

Well Internet, it has been a busy last couple of weeks for the both of us. While I was away at the Berlinale (finding out that almost everyone working in the film industry is utterly bewildered at the problem of working out proper online distribution models), it looks like you were having quite a jam yourself what with the bitcoin crash, the CJEU decision on hyper-linking and the Netflix/Comcast  deal to name a few. YASS GIRL, Rave against the dying of the light.

Now, I’m not sure about you but I’m feeling a little over-saturated with commentary and analysis on the bitcoin/Netflix/Svensson buffet we’ve been having, so for this week I’m keeping it light and sharing two articles about gaming and the hivemind I think are interesting:

1) The first article is about the (frankly amazing) simultaneous mass-playing of a single Pokemon Red game online. The article will explain all but trust me, you absolutely have to watch the live footage of 50k people trying to play the same Pokémon game simultaneously. Its art, its poetry, its every hangover you’ve ever had. BLESS.

http://knowyourmeme.com/memes/events/twitch-plays-pokemon#spin-off

Also, like anything cool, this raises a boatload of issues we’ll be dissecting for a while (especially in game theory and political philosophy) however from an copyright perspective there are a couple of things that have got me thinking:

Firstly, could this possibly be a new form of ‘transformative use’ with regard to fair use/fair dealing? The kid who re-coded this spent hours modifying this program so that it could handle the amount of instructions plugged in PLUS the communitarian aspect of game play seems a significant ontological step away from single player game play. I mean, it really creates a whole different aspect of narrative and interactivity. Is this enough to bring it within Fair Use’s protection? Of course, weighing against it is the fact that it does use the entirety of Pokemon Red as is (characters, pokemon and all).

Regardless of the legal question though, it is also a great case study from a business perspective of the benefit in big companies like Nintendo not threatening a takedown every time someone uses their IP as this type of user activity (while arguably infringement) clearly strengthens the value of the franchise by expanding and deepening the fan base. Hopefully as time goes by, this kind of non-enforcement will become common-place.

Secondly and this hasn’t fully formed in my mind yet, I think this raises really interesting questions regarding Hivemind collaboration and the creation of narrative/artwork, fair use and licensing. What exactly, I’m not sure but I know something strikes me as potentially innovative here. If you have any ideas or insights please share them with me and we can get the discussion going. Hopefully the dust will settle on this and something will come to me. Will keep you updated.

2. A very cool article by the guy who invented ‘Magic The gathering’ card game, arguably the geekiest of geeky past times ever created.
http://m.vice.com/read/an-interview-with-richard-garfield-creator-of-magic-the-gathering
Once again, while anyone can enjoy the article, for those with a knowledge of the idea/expression dichotomy in copyright law, its particularly interesting to think where the line could be drawn in protecting game mechanics of non-computer games especially when part of a game’s design or attraction might rely on user innovation. To those unfamiliar with the idea/expression dichotomy in copyright law (i.e. almost everyone), this deals with the slightly more abstract problem of where do we draw the line in protecting an author’s creative expression as opposed to the underlying idea which is public domain and should remain unprotected. If you have time, head on over to Wikipedia, this area of copyright law is by far the most interesting and weird and totally worth reading up on.

What I’m struck by once again having read these articles is just how incredibly fertile ground Gaming actually is, both as an art form and as a business venture yet we have only recently started seeing it move into the mainstream. The computer game industry is more profitable than the music and book publishing industry COMBINED at the moment and apart from the money, there is something deeply challenging and disruptive about the interactive aspect of creating narrative for these games. Its a fascinating area and I’m looking forward to the developments afoot here. At the very least, it should keep you occupied while I work on my next post about curation and aggregation.
Stay tuned. Stay Lush.

Essential Mix: Privacy and Fame

After a week of turning my reading focus to the phenomena of celebrity culture, fame and the right to privacy, I was faced with the faintly surreal spectacle of the tabloid media storm triggered by Justin Bieber’s arrest for drunken driving. Regardless of what you think about the guy, one can’t help but feel sorry for someone so absolutely hounded and exposed in the prison cell of the public’s gaze and scrutiny. In a recent photo he uploaded to instagram of paparazzi swarming him on a remote beach, the message was clear: I cannot escape You. And sure, while on an artistic level its a little first year art school (“The Viewer becomes the Viewee, a horror house of infinite refraction and mirrors”- thanks Art History), it’s an image which also is incredibly effective at demonstrating the extent of his lack of privacy.

Privacy, fame and freedom of information are nebulous and abstract concepts. They manifest themselves daily in a variety of ways and as we increasingly live and share our lives online through social media and are monitored by governments and corporations alike (side-eye at you NSA), is it possible that Justin Bieber’s glass cage is really a difference in degree rather than a difference in kind to the world we are walking into?

It’s a scary and interesting idea, so to give your thoughts about this some juice I’ve put together a short list of videos and articles I’ve recently come across that deal with these issues in an accessible and interesting way. Just click the blue hyperlink to go through to the sites.

First up is a TED talk by Jack Gleeson, an actor from Game of Thrones, who talks about the strange nature of celebrity culture. Although the guy is just two years older than the Biebs, he is fantastically well read in the area, made all the more gripping by the fact that he actually is famous. His thoughts and experience on having his public image ‘democratized’ is fascinating.

Secondly, a fantastic episode from the people over at the PBS Ideas Channel about whether or not Reality TV is affecting our own ideas about surveillance and privacy. In their usual style, the video is as entertaining as it is thought provoking. This channel is in general might I add highly worth following, the writing is great and the production style is sharp.

Thirdly, an article from The Atlantic on the seminal writings of Privacy Philosopher Helen Nissenbaum. The article breaks down her new approach to conceptualizing privacy which many have described as a paradigm shift. Personally, her ideas have that amazing quality of articulating exactly how I feel on an intuitive level about how privacy works and this is well worth reading.

Fourthly, I recommend a long form piece by Hilary Mantel called “Royal Bodies”, an incredible article discussing the public’s obsession with the sex lives and physical bodies of the Royal family. Although it’s a longer read, you know it’s worth it when the Prime Minister releases a public statement condemning.

Finally, no list would be complete without the incredible documentary “We Live in Public”. This is the film which made me interested in privacy and online media.The film follows the fascinating story of internet pioneer Josh Harris who experimented with online surveillance and the loss of privacy on internet media YEARS before the phenomena of myspace or facebook even entered the scene. Also a great look at New York in the dying days of the 90’s before the tech bubble burst. Here’s a trailer: http://www.youtube.com/watch?v=_XSTwfdFwIY

Enjoy

 

 

The net is dead, long live the Splinternet- what the loss of Net Neutrality means for the Media and Creative Industries

In his book ‘The Master Switch’, Professor Timothy Wu posed a ominous question: since every other information technology market was once initially open and accessible and then became narrow and dominated by powerful monopolies (think of radio or television), is the internet doomed to the same fate?

After last week’s decision by the D.C. Circuit Court of Appeals, it looks like the answer for now is a devastating ‘yup’. At the heart of this case was the issue of ‘net neutrality’, a principle which ensured browsing freedom by preventing bandwidth providers from blocking or prioritizing access to certain websites. To ride a very tired metaphor, if the internet is the information super highway, this decision now allows the broadband mafia to close the offramp to your favourite Information Neighbourhood. And although for some this might have been a pretty dodgy neighbourhood with spam junkies & pop-upstitutes, the information you could find there would be treated no differently to the information coming from the leafy neighbourhoods of major internet platforms.

To bring yourself up to speed, I would recommend reading two excellent articles over at Slate.com and The New Yorker which sum the whole mess up and share some insightful commentary as to what this decision means in a broader societal context. For those who specifically work (and play) in the creative and media industries however, this decision has immensely ominous ramifications for the creative freedom and profit opportunities which the internet currently provides.

In essence, If bandwidth providers can decide how content is accessed, a new valuable commodity has been created  and with it an entirely new market which we will all be subject to: accessibility and access priority. For those who can’t see the writing on the wall immediately, let’s have a quick history recap:
In the past, record labels, publishing houses, broadcasters and movie studios were the gatekeepers to an aspiring creative’s career seeing as they controlled the channels of distribution connecting an audience with a creative work. If you wanted your record sold, your book read or film seen, you had better hoped and prayed that someone in one of those organizations decided you were selling bankable work. Similarly, news journalism and political opinion flowed through narrow river mouths of but a handful of newspapers and broadcasters; news or opinion deemed too niche for the majority of viewers or too out of step with company politics tended not to see the light of day. However, increases in available bandwidth radically changed the face of this old industry landscape as now anyone with youtube, soundcloud or a blog could reach an unlimited audience. The rest is history amigo.

All of this now though is potentially at risk in a number of different ways. To speculate on a few potential scenarios, bandwidth providers could make the bandwidth access necessary for streaming/downloading media content unaffordable for smaller, independent platforms. Or they could conclude deals with major media distributors which effectively would create distribution monopolies by providing exclusive access and blocking out other sites. A worse case scenario could see entire sites just being blocked for the nature of their content regardless of  whether they are able to pay or not.

The important thing to remember here is that the battle for Net Neutrality should be seen as a new front in a much older war of how communications infrastructure and the Media market are regulated and composed. This area of policy and law deals with the question of ‘Media Pluralism’, the idea that the media (in all its various manifestations) is so critical to the healthy functioning of a modern democracy, that the state is justified in intervening (to some extent) in the market to ensure that no single voice or interest can become overly dominant or monopolistic. Media Pluralism generally sub-divides into two areas, ‘internal pluralism’ (which deals with the content which is available to consumers) and ‘external pluralism’ which deals with the underlying infrastructure and market conditions. This idea is easy to see in something like television: there are certain rules in place which regulate the content being broadcasted and certain rules which regulate who broadcasts, how they broadcast, where they broadcast etc.For example, while internal pluralism might try to ensure that there are enough TV programs for the deaf (a demographic too small to to create enough demand in an unregulated market),  external pluralism might see a regulator blocking a merger between two major media corporations to avoid one single entity become too strong. 

Obviously the two are fundamentally linked, as conditions in the market and infrastructural landscape would determine not only who is able to make and distribute content but also who is able to access that content. Going back to the TV example, only those Broadcasters with a license to broadcast are able to do so, and as importantly, only those consumers with the necessary equipment and subscriptions can access the content being transmitted.

Net neutrality, while clearly an issue of external pluralism, poses significantly different questions due to the unique character of the internet in comparison to other mediums such as TV and Radio. TV and Radio are after all fundamentally passive mediums where a relatively small group of people create and distribute content and  the consumer has no real input into the process over and above which channel they chose. Those broadcasters, due to their limited and defined size are at least to some degree regulatable in what content they push to viewers. The internet on the other hand is at its very core an active, decentralized wild west where an indefinite amount of users are able to create and distribute content and users have a near infinite choice in what they consume (Harvard Copyright Luminary Lawrence Lessig in his brilliant TED talk talks of the difference between the pre-internet read only culture versus the current read/write culture of the internet. Definitely worth a watch). What this means is that the direct tools we could use to achieve internal pluralism in traditional analogue mediums are useless in this internet environment. For example, lets say my bandwidth provider guts the bandwidth access to my favourite video hosting site which carried independent documentaries about corporate corruption and emerging underground musicians because the site was unable to pay an additional tariff needed to stream video. Where else would I be able to access this content? Considering the sheer amount of content that would be lost, Its seems impossible to imagine how a regulator would be  would be able to force other creators to compensate for this loss and fill the gap now opened.

Thus the importance of net neutrality cannot be understated here: this structural rule is the very foundation underlying the freedom and variety of online media culture we enjoy today.

So while the US might have taken a major knock in losing its case for net neutrality, what does this hold for those of us outside the US? Is the UK or EU next in line? I would speculate that although a loss of net neutrality in the US would be felt throughout the world, the markedly different approach to market regulation in the UK/EU should prevent this kind of situation from arising.

While there are many layers of law which might step in here, one that stands out for me is the role of Competition Law. Unlike the US, the UK and EU’s approach to Competition Law is a lot more interventionist and prevents certain market conduct which would be allowed over State-side. What could be particularly helpful here is the UK/EU’s significantly more expansive approach to the essential facility doctrine which could possibly ameliorate some of the damage and ensure that such bandwidth is effectively distributed. While this is a complex area of law, the basic upshot is that UK/EU regulators would be more likely to uphold Net Neutrality seeing as bandwidth providers control such a special and essential facility in the functioning of access to the internet.

While all users should be wary of incursions into our internet freedom, those of us in the media and creative industries who rely on this medium for our bread and butter should be particularly watchful. Over and above the radical freedom of speech and freedom of information we could lose, Lord knows no one’s gonna wait 45 minutes to watch that new niche clay-mation music video you spent the weekend crafting.