When you wish upon a star –
be careful what you wish for
The copyright pendulum had been swinging towards broader, stronger and longer protection for the last 100 years, but it may have reached a turning point in the U.S. with the draconian measures adopted in 1998. Those protections, including, among others, a term of life of the author plus 70 years and 95 years for works published before 1978 and the anti-circumvention measures designed to insulate the content industries from the realities of frictionless and costless reproduction and distribution in the digital environment, marked the end of the long trend.
Of course, copyright would not go quietly into the night because the industries built upon it resisted the inevitable and took time to adapt to their new circumstances. But adapt they did. The series of ironies that followed the subsequent swings were only delicious for a moment, as the implications of the next swing back the other way would become apparent. Victors learned not to celebrate, for in the next instant, things would go against them.
Or so it seemed to me at first as I began to examine the hard question of what the next 10 years might bring in the development of copyright law, policy and practice. I focused initially on the effects of mass digitization projects, in particular, effects on the health of the public domain. Major concepts I expected to examine, in addition to the effects of mass digitization, both commercial and nonprofit, included the deterioration of library prominence in the roles of discovery and fulfillment, the crumbling of business models in the music industry, seeming recalcitrance in the publishing industry and arrogance in the movie industry, all interwoven with economic themes elaborated by Schumpeter, Christensen, Goldstein, Anderson and Boyle, among others.
While the surface story appears to be one of increasing access to and usefulness of the kinds of media that once were scarce goods, such scarcity owing to copyright’s artifice, the deeper story is one of ever more adroit exploitation and control by copyright owners. In fact, the surface story was so appealing that it took me awhile to recognize that there was a deeper story. On the surface, I surmised that if content industries (content or content industries defined herein collectively as the products and producers of the publishing, music, movie, theater, dance, two- and three-dimensional art, photography, gaming [and whatever other industries I’m leaving out] industries), and individuals rely less on copyright to exclude others from copying and distributing their works, that is, if relatively free access to and use of such content becomes a normal public expectation, there may not be any hew and cry in nine years when U.S. media conglomerates push for another 20 year extension to the term of copyright. More pointedly, if there were some downside of this apparent access and use utopia, we would have those nine years to figure it out and be prepared with counterarguments. The counterarguments could go so far as complete denial of any continuing use for copyright (a fitting final twist in the story, I thought). But even if that were unlikely, the full range of arguments against term extension in a milieu of much freer access to and use of others’ works warranted exploration.
I really do not know who will get the last laugh, but as I looked at the situation more closely, it began to seem that the power and control that the collective content industries wield will not be turned to the liberation of their content from their own grasp. It only seems like they are giving up control. In truth, they appear to be asserting control in more subtle and nuanced ways, and in ways that are possibly more constraining than we can imagine. Jack Valenti may get his (conjectured) wish after all, if posthumously:
"So the effort [by the MPAA] to block something like the Eldred Act is not really about protecting their [motion picture industry] content. The effort to block the Eldred Act is an effort to assure that nothing more passes into the public domain. It is another step to assure that the public domain will never compete, that there will be no use of content that is not commercially controlled, and that there will be no commercial use of content that doesn’t require their permission first. The opposition to the Eldred Act reveals how extreme the other side is. The most powerful and sexy and well loved of lobbies really has as its aim not the protection of “property” but the rejection of a tradition. Their aim is not simply to protect what is theirs. Their aim is to assure that all there is is what is theirs" (Lessig, 2004, p. 255)
I am concerned that very good news for public access to and use of creative content will, in reality, effectively deflect criticism of attempts to extend the broad, powerful and lengthy protection copyright offers now to new lengths, and possibly even new breadths and depths. So, starting with the present, we are only on the cusp of some of the changes that I think will bring into play the forces that will radically reconfigure the “balance” we think copyright is supposed to achieve.
[NOTE: Following are rough notes that outline the trajectory from easy access and use for consumers and nonprofit creators to easy claims for longer terms. I question whether a massive corpus of freely available works will act as a sufficient counterbalance of choice as the control of copyright owners over commercial exploitation of profitable works approaches endlessness. The emerging structure I imagine is in some ways reminiscent of the earlier US copyright regime that only provided protection for works that promised some profitability, and only those that were really profitable enjoyed a longer term through renewal – all the rest went into the public domain by either never getting a copyright at all or by not renewing. But in this future configuration, the division of works into those protected and those not protected might break along a different set of lines – whether the manifestation of the work is digital or analog, where analog embodiments could enjoy near endless protection while digital versions would be freely used, reused and enjoyed for noncommercial purposes, but tightly monetized for commercial purposes, for the same long periods as analog works.]
If selling, distributing, displaying and performing digital copies as a business model is losing traction as a result of disintermediation, consumer resistance to copy controls, and forced competition for consumer's attention with enormous amounts of free materials, among other forces,
as evidenced by proliferation of business models that do not rely on control over and sales of copies (music biz abandonment of DRM, OA movement, growth of CC content, Internet TV ad supported, Pandora/LastFM, massive amounts of freely available content (where author does not rely on copyright to make a living), examples of alternative business models from Kevin Kelly’s article Better than free and Chris Anderson’s Free,
If the price of digital content to the consumer is, as a result, trending lower, even towards zero,
as evidenced by examples of free content and market forces pushing content prices to zero (any mechanism that would allow for market pricing of content will tend to push prices to zero because or competition with so much content already priced at zero); examples of content that used to sell for a price but is now free (NYT/WSJ; software); proposals to embed the cost of content in non-digital goods and services (subscription; increased prices for electronics, etc.); and the massive amounts of free and very valuable information individuals, cultural organizations, and other entities post
If copyright owners voluntarily refrain from enforcement of the digital "copy" right functionally (de facto) weakening it so that the strength of digital copyright trends lower, even to zero in the case of the copyright in digital copies,
specifically, the 2015 de facto digital copyright will have lost much of its strength through non-enforcement:
1. [exclusive right to make and authorize others to make copies]
2. exclusive right to create and authorize derivative works ? – see below
3. [exclusive right to publicly distribute and authorize public distribution of the work]
4. [exclusive right to publicly display and perform and authorize others to publicly display and perform the work]
Then, will we need and be able effectively to argue before Congress in 9 years (2017) that we need, a vibrant and healthy public domain if there is a vast collection of digital works relatively freely available for mass nonprofit use, through voluntary non-enforcement of copyright?
With a copyright that is significantly de facto weakened (at least along one parameter – digital embodiments), opponents of longer terms will have a tough argument to make because as the perceived strength of copyright weakens (trends to zero), term can lengthen towards infinity without the public experiencing a negative effect. The public domain only has value in contradistinction to the protected domain. As the protected domain diminishes in scope, the value of the public domain should diminish too.
Where will the value of 1) digital and 2) non-digital copyright lie 9 years from now? Digital copyright may be no more than a right to control ex post investment; non-digital copyright would exist in expression in non-digital (analog and live performances and displays) goods and services:
Digital copyright: The right to control exploitation of derivatives (ex post investment) that is, uses that derive monetary value from use of or association with digital embodiments;
Non-digital (analog): Exclusive right to exploit the value of things that cannot be digitized or that are embodied in a physical copy (analog copyright: original works of art; works embodied in physical form (books) or applied to physical forms such as mugs/t-shirts/games/toys/etc.; experiences like plays, movies, concerts)
Proponents of a vibrant public domain would have to argue that the copyright owner should only be able to control investment by licensing the right to commercial benefit associated with or derived from digital copies, or through exclusive control over analog or live-experience exploitation, for a limited time, keeping in mind that ex post investment as a justification for longer terms has no theoretical stopping point (i.e. if I should have the right to control exploitation of my work, what is the rationale for this right to ever end? – think of Landes and Posner’s indefinitely renewable copyrights as one model for what proponents of longer terms might argue).
Regarding the questionable value (strength or value of enforcement) of the right to create digital derivatives: Will digital derivatives have any intrinsic value? Will they have any more value than the digital originals from which they are derived? Paul Heald counters the argument that the copyright owner should control investment in his work to increase use of older works (ie, the derivative right) by showing that investment actually increases upon release to pd, but his study was conducted under conditions of significant transaction costs while a work is protected. These will likely diminish or possibly even disappear entirely in the future (combination of strong use of Creative Commons and other online licensing and solutions to orphan works problems, as well as development of functional ways to identify and pay creators to use their works (copyright evidence bases) and particularly with respect to the massive corpus that is born digital and can either explicitly or implicitly be freely used and reused or whose owners are easier to contact for exploitation rights). Thus, the average economic life of a creative work would theoretically lengthen with increased access and reduced transaction costs. But digital derivatives will face the same pressures as their source materials – competition with immense amounts of free materials, which would seem to drive derivative prices toward zero also.
If copyright terms continue to be extended, they will mainly affect (bind) popular cultural works, making them unavailable for commercial exploitation without a license. Disney will argue that he should be able to control commercial uses of Mickey so long as Mickey makes money, especially in light of all the free content Disney (by then) will be providing the public. Authors who see their newly discoverable older works potentially able to earn them payments for the entire life of the copyright (even if this proves illusory given the push to zero price for digital works) will be standing shoulder-to-shoulder with Disney. Theirs may be entirely a natural rights argument, but that argument tends to resonate these days. “I should be able to control making money from my investment of time and effort in creating my property...” The counter argument will simply be that there must be a stopping point ( and WHY is that? Oh, yes, that Constitutional thing… surely we don’t really need to worry about that, do we?) and that 95 years is long enough (too long actually, but that’s another battle). That does not sound like a strong argument, at least not to me (Eldred v. Ashcroft).
Is the corpus of freely available content the sufficient counterweight to ever more expansive copyrights that it may seem to be? If people have a clear choice when they create to choose from inputs that cost and inputs that are free, is that all that we can ask for in a market economy? One might ask the same question with respect to consumption: if you have equal choices with respect to quality, and you want to pay for something, even if you have to pay for it forever (ie, it never becomes pd), should that be your choice? Copyright owners could argue in these terms, given the massive public benefit of an enormous corpus of freely available, non-commercially exploitable materials.
And for a final twist on a tale of irrelevance, initially of the public domain, but possibly of copyright itself: On the other hand, copyright is a state-granted monopoly in the U.S., not a natural right, and it ought to bear some demonstrable relationship to the achievement of a goal that can’t be achieved without a monopoly. As copyright becomes less and less a functional incentive to create and more based on controlling ex post investment forever (minus a day, or course), is there really a utilitarian justification for copyright at all? If you compare physical building materials (manufactured and sold to the public) to intellectual building materials, where is the justification for the government granted monopoly if in fact recovery of investment is not at all problematic because it is not based on control over the sale of copies, but instead, derives from selling other goods and services besides the work itself? If others can earn a living from exploitation of my creative works without negatively affecting my ability to make money from them, and perhaps even enhancing my ability to make money from them (for example, the Brazilian musicians who allow street vendors to freely copy and distribute recordings of their works while the musicians make their own living from their live concerts), where is the need for a state-granted monopoly, at least in digital manifestations?
Indeed, is there even a need to prevent others from performing the musician’s music live as in the Brazilian example, or selling copies of my book right alongside me? Recall Vaidhyanathan’s examples of musicians whose particular nuances are what make their live performances unique and attractive. Given available alternatives to recover investment without preventing duplication, distribution and even public live performance, where is the justification for invoking a state-granted monopoly?
Consider the creator of 2x4s. She does not have an exclusive right to control downstream investment in the products of her labor. Anyone can buy her 2x4s outright and use them to build a house and make a profit. The 2x4 creator recovers her investment up front, by selling to the distributor or to the public at a price that keeps her in business. Will there be any functional difference between this business model and the content owner’s sale, up front, of other goods or services that creators of content will sell, instead of copies, to recover their investments? Do they really need a monopoly on ex post investment at all? Their justification is much more understandable when based on natural rights. I think it falls flat on utilitarian grounds once ubiquitous copies, costless distribution of digital copies and recovery of investment from other sources besides sales of copies are the norm.
One can view the economics of these phenomena through the “innovator’s dilemma” lens (Christensen, 1997): economic forces that normally operate in the presence of technological opportunities to reduce costs and provide better services or goods are kept at bay by imposition of a limited monopoly vested in those who benefit from current business models. Creative destruction does not operate within copyright industries the way it does in industries where the entrenched interests cannot prevent startups from using new technologies to explore new markets (note that Christensen does not discuss copyright industries). In copyright industries, monopolists are able to control any innovation that exploits their source materials (examples abound – the string of early lawsuits against innovators in the digital sphere from mid 90’s through the present day).
But the demand for “respect” for copyrights (ie, imposition of monopoly rights to stop what would otherwise be normal economic development processes) forces innovators to either increase their costs by licensing rights from copyright owners (if the owners want to enable their competition) or wait for the development of a corpus of alternative source materials, to be able to experiment with new business models free from dominance by the owners of copyrighted materials for whom it is not in their perceived interests to accommodate innovation. Once a sufficient body of works exists on which experimentation can proceed, the new models can compete with the old and creative destruction may possibly undermine entities that cannot adapt.
As an aside, contrast that play of interests where there is a monopoly involved with the ease with which Google has swept past its library competition by being able to innovate in the areas of information discovery, retrieval, and eventually, fulfillment, because it had a huge corpus of freely available and usable content right from the beginning (i.e. copyrights were never successfully interposed against search engines until Book Search). Libraries have not been able to block innovation in their core business, because they have no monopoly to assert and they cannot, by their nature, respond quickly or creatively, as a well-financed startup can.
There are a number of research questions that I could pursue within this framework of propositions. While the health of the public domain and access to and use of others’ works for creative and consumptive uses is, in general, relevant to the field of information studies, the theories underlying the questions that occur to me at this point are economic. I welcome any suggestions for alternative questions that might explore theories more directly affecting the field of information studies.
1. Where is the value in owning a copyright if the owner permits his/her copyrighted works to be digitally distributed, consumed and reused without remuneration?
a. Interview copyright owners who serve content for free, allowing reuse and derivatives, but who nonetheless monetize their creative works, for insights into what role the exclusive rights to control copies, derivatives, distribution, public display and performance play in their business models.
i. I may approach this study using focus groups, surveys and interviews, in that order.
ii. I would choose for in-depth interviews creative professionals from industries that are both distribution- and performance-based
3. Theater or dance
2. Is there a relationship between easily and freely available copyrighted source materials, for inclusion in new creative works and for use as the basis for derivatives, and the value creators place on public domain materials for the same types of use and reuse?
a. Conduct an experiment in which participants are offered a financial incentive to create a short (approx. xx words) travel article for an online travel Website, incorporating materials found on the Web, where the experimental conditions offer different combinations of custom search engines from which to choose works to incorporate into the article (images, video, descriptions of important locations to visit, travelogs, etc.):
i. Condition 1: Creative Commons search engine and Public Domain search engine
ii. Condition 2: Stock photos and commercial travel sites search engine (where copyright owners impose permission and fee barriers to the use or reuse of creative works) and Public Domain search engine
iii. Condition 3: Open Web search engine (where creator is likely to encounter a broad mix of open access and toll access materials, and ambiguity about rights to use and reuse) and Public Domain search engine (does open Web constitute a valid control group; if not, what would be a valid control group?)
iv. Incentive could be $50 to be paid if the article is “chosen” for the travel Website (i.e., the best article from those submitted by participants)
v. Participants evidence the value they place on the Public Domain by their choice to use or not use the Public Domain search engines to find and incorporate materials into their creative works
3. What is the effect on public willingness to pay for digital content when content of similar quality is readily available for free?
a. Conduct an experiment in which a searchable online repository of electronic theses and dissertations (etds) offers a random selection of etds for free and a random selection for a fee (the groups will be equal in number), to see what effect the price condition has on downloads of the etds.
i. Etds are randomly offered at three different price conditions
1. Condition 1: etds are free
2. Condition 2: etds cost $5
3. Condition 3: etds cost $30
ii. Log records are maintained for 3 months showing all searches and all downloads.
iii. Download rates are examined to determine whether price, and specifically, whether zero price, affects downloads.
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