We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.
“The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.” –George Orwell, Animal Farm
The Internet Copyright Wars are in their third decade, and despite the billions of dollars and trillions of phosphors spilled on its battlegrounds around the world, precious little progress has been made. A quarter of a century after Napster’s founding, we’re still haunted by the same false binaries that have deadlocked us since the era of 56k modems:
- Team User v. Team Creator. Creators are users, and not merely because “everything is a remix.” Creative labor builds on the works that came before it. “Genre” is just another word for “works that share a common set of touchstones, norms and assumptions.”
- Big Tech v. Big Content. Entertainment monopolies aren’t staunch defenders of the creative workers whose labors generate their profits (far from it!) and tech giants aren’t selfless liberators of oppressed artists stuck sharecropping for legacy entertainment companies (not by a long chalk!). No matter whether a giant multinational is a member of the MPA or TechNet, it has the same overriding imperative: to reduce its wage bill and thus retain more earnings for its shareholders.
There is nothing especially virtuous or wicked about either tech companies or entertainment companies. Indeed, in an era in which Google owns the world’s most popular video site; where Amazon and Apple both own movie and television studios; where Microsoft owns multiple game production studios, and where the Big Three music labels own substantial stakes in Spotify, there is no longer a meaningful distinction between “a giant tech company” and “a giant entertainment company.” Both are simply: “a giant company.”
And giant companies are gonna giant company. As paperclip-maximizing artificial life-forms, limited liability corporations are on a remorseless, ceaseless quest for ways of reducing the cost of their inputs, and if payments to creative workers can be squeezed, they will be.
Advanced economies around the world have spent the past 40 years expanding copyright. Today, copyright lasts longer and covers more works than ever, with higher damages and lower bars to securing them than ever. Companies that sell entertainment products are more profitable than ever, and the entertainment sector is larger than ever.
But the share of that income going to creative workers is lower than it has been in generations, and it is continuing to decline.
No one listens to a song because they loved the record executive who signed the performer’s royalty statement
Even if you think that copyright’s only legitimate purpose is to incentivize creativity, this stinks. No one listens to a song because they loved the record executive who signed the performer’s royalty statement or read a book because they wanted to reward the hard work of the lawyer who drafted the author’s contract. A copyright system that makes intermediaries richer and creative workers poorer is indefensible.
How can more copyright lead to less money for creators? To answer this question, we need to look at the structure of the entertainment and tech sectors. The web has been degraded into “five giant websites, each filled with screenshots of the other four.”
The entertainment industry is no better, consisting of:
- Five giant publishers;
- Four giant movie studios;
- Three giant record labels (who own three giant music publishers);
- Two giant ad-tech companies (and two giant app companies);
- One giant ebook and audiobook retailer.
Giving a creator extra copyright is like giving a bullied kid extra lunch money: it doesn’t matter how much money you give that kid, the bullies are going to take it all.
As these platforms have locked up billions of users inside walled gardens, they have made it all-but-impossible for creators to reach their audiences without first acceding to whatever terms a massive gatekeeper demands.
Under these market conditions, giving a creator extra copyright is like giving a bullied kid extra lunch money: it doesn’t matter how much money you give that kid, the bullies are going to take it all. This is true even – especially – if the bullies use some of that stolen lunch money to pay for a massive global ad campaign exhorting us to think of the poor hungry kids and demanding that we give them even more lunch money.
To create a copyright system that works for creative workers and their audiences, we need to think beyond copyright. Here are some non-copyright policies that would make copyright better:
- Structural Separation: When a platform competes with its users, it becomes a referee that owns one of the teams. That’s true whether it’s Google or Meta representing both buyers and sellers of the same ad placement, or Apple owning an App Store whose payment policies are rigged so that only Apple can profitably sell digital media. For decades, many of the largest American companies were prohibited from competing with their own business customers.
- Transparency Rights: Creative workers have little insight into how their payments are calculated, and opaque royalty-reporting practices by large firms allow big companies to steal millions of dollars from creators. The EU’s 2019 Digital Single Market Directive includes a “transparency right” that obliges intermediaries to clearly explain how creators’ works are monetized and how payments to them are calculated. The US is a laggard here. The closest US equivalent is a clause in 2002’s Sarbanes-Oxley Act, which makes executives personally, criminally liable for false financial statements. This clause put an end to the big record labels’ practice of secretly pressing off-the-books runs of CDs during overnight shifts and selling them without compensating the performers or composers. That was a start but we can do more.
- Termination Rights: Under the 1976 Copyright Act, creators can unilaterally terminate copyright assignments after 35 years. That means that creators who accept a bad bargain when their works are unknown quantities can cancel the bargain and demand a new one once they’ve proved their worth. The first draft of the 1976 Act made termination automatic after 25 years, but entertainment industry lobbyists weakened it, imposing bureaucratic hurdles that make termination a technically complex nightmare (though new automated tools make it much easier). Only a small minority of works are still commercially viable after 35 years, but when they are, termination allows their creators to claw back some of their value. Simplifying termination, and shortening the time before it can be invoked, would directly enrich creators.
- Rights Databases: Around the world, collecting societies manage and distribute funds from blanket licenses, such as those used by radio broadcasters, online services, libraries, and live performance venues. Each collecting society – generally a different society for each country – maintains its own database of which copyrights are controlled by which entities. This is a costly, error-prone system that drains money away from creators and squanders it on duplicative, under-performing IT projects. If a collecting society can’t figure out how to pay Beyoncé, what hope do less well-known performers have? Here in the year two thousand and twenty-three, we can surely build a better, common, transnational, transparent database. You can’t pay an artist if you can’t find them.
- Clean Ad Markets: The ad-tech market is dominated by two gigantic, vertically integrated firms, Google and Meta. These two firms take a huge bite out of nearly every ad sale online, a share that is inflated by an illegal conspiracy to rig the ad market as well as innumerable lesser frauds. Many of the world’s media companies were kneecapped by Facebook’s fraudulent claims during its “Pivot to Video” campaign. We won’t – and can’t – make the news industry better by creating a new copyright that determines who can link to news articles (hint: if you can’t talk about the news, it’s not news, it’s a secret). Big Tech isn’t stealing the newspapers’ content – it’s stealing their money.
- Collective Bargaining: Creative workers who organize can win major concessions from their intermediaries, shifting billions of dollars from corporations to creators. Online creators have been forming unions at an unprecedented rate, joined by creative workers from traditional media companies and video game companies. Labor law is slow to recognize these unions, offers organizers too few protections against retaliation, and places restrictions on labor organizing based on pre-digital assumptions about labor conditions. Modernizing labor law will help creators win better contracts and a larger share of the money that their copyrighted works generate.
The fight that matters isn’t tech vs. content—it’s corporate consolidation vs. creative workers and their audiences. We won’t win that fight with ever-more-Draconian copyright laws – we’ll win it with interventions that are laser-focused on increasing worker power, blunting corporate power, and transferring cash from the corporate side of the ledger to the creators’ side.
Categories: Electronic Frontier Foundation