Copyright and the Digital World Part III: The Experiment

So ultimately, if us creatives want to figure out what will work and what won’t, we need to start figuring out what the actual state of the culture is out there. Of course, that’s difficult, given that culture is elusive, constantly shifting, and therefore difficult to pin down.

But, we’ve got to start somewhere. So, I’ve decided to try something. This idea is in part inspired by the old storyteller model. The storyteller would tell his tale and those who liked it would pay, based on what they could afford and based on how much they liked the stories told.

Basically, I want to see if we actually do value writers, and their creations. I will do this by offering one of my novels–a Regency Romance (think Jane Austen, but without the zombies) called An Immodest Proposal. It’s a drawing room comedy of manners.

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Copyright and the Digital World Part II: Why Shift Focus?

So, if it’s no longer about copying (or shouldn’t be) and it’s actually about use (or should be), then the question is: what do I mean by use*?

The way I see it, there are a lot of different ways that a work can be used:

  • “consumed” (read, listened to, etc.)
  • distributed
  • sold
  • adapted
  • sampled
  • etc.

With digitization, all these uses can be appropriated by anyone with a computer and the right programs installed.

By contrast, there are many benign reasons for copying a work and making multiple reproductions of it (e.g. so you have access to it from your various devices; printing off a fresh copy if you left your printout elsewhere and need to look at the work on the page etc.)–none of which are in any way cutting into the creator/rights holder’s ability to profit from their work, but which are illegal under a regime that emphasizes the right to copy.

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Copyright in the Digital World Part I: The Challenge

Here in Canada, there is a great deal of discussion about (c)–copyright–reform. But there’s a problem. Where before, the process of copying was limited by technology, these days, you can copy with the right click of a mouse. You can then disseminate the work to a vast number of people with a few more clicks.

From what I can tell, in order to get a functional legal regime in place, you have to strike the right balance between culture and law. Right now, the two are widely divergent. We have laws that say: don’t copy. It’s illegal. It’s not your right.

And we have a culture–and supporting technology–that makes it absurdly easy to copy and ridiculously difficult to catch infringers and enforce any restrictions on copying, without raising privacy and security issues (e.g. once there’s a gap created to monitor copying, others can also exploit said gaps).

So, why are we so big on protecting the right to copy? There are a lot of stakeholders in the current regime–people who have business models built around protecting the right to copy. And that right goes back a bit.

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Music Streaming away from the Canadian Market

I did a pointer post on the innovation law blog yesterday, regarding this Globe article. We’re supposed to do mostly pointers, and the posts are supposed to be short–three sentences or so. My three sentences were on the long side, and even so, I have more to say.

The Globe article basically says that streaming music companies like Pandora are being priced out of the Canadian market, because between the cuts demanded by SOCAN (which collects and distributes fees to composers and music publishers) and Re:Sound (same kind of function, apparently, but for record labels/producers and performers. As an aside: despite the DH’s involvement in the music industry and his studies of the music business etc, I actually hadn’t really heard of Re:Sound until now). Re:Sound is asking for a cut based on one of two different figures–whichever is the higher–either 45% of gross revenues, or 7.5 tenths of a cent for every song that is streamed in Canada. And this is on top of the SOCAN fees, mind. This kind of narrowing of providers’ margins have meant that we don’t have access to many such streaming services. Other streaming services claim that they would be undeterred by the prospect of having to give that kind of cut–but that they’d simply be passing along the higher cost to the consumer, which in turn would mean that they’d get fewer subscribers.

I really believe that composers, musicians, producers et al. all do deserve a slice of the pie. I think there is an intangible property right inherent in each of those contributions to the finished product. That’s not controversial to me at all. What I have a problem with is the short-sightedness of demanding such a high cut. No-one is benefitting from streaming music providers staying out of Canada because the desired fees are too high: 45% of 0 is 0. Production companies don’t get a return on their investment–and musicians and composers don’t get any royalties.

Given that, I’d love to hear the rationale for demanding this kind of take. Otherwise, it just comes over as poor advocacy skills–which would be particularly unfortunate if they actually have good reason or solid numbers to support why they want such a large take. The portrayal of their position in the Globe article has overtones of stubbornness–like they’re digging their heels in and saying, “if the Copyright Board approves, then we must be right–oh and some other countries have a similar fee structure” (but do they have streaming media deals and a second group for composers also taking a separate cut?). It might just be bias on the part of the Globe, of course, especially given that the only comparators they cite are the ones provided by the streaming music companies–namely, radio and fitness clubs, both of which have a far better deal. Or, maybe those are the correct comparators, and Re:Sound et al. needs to start doing the math on how well zero divides into itself.

A final point in the article had to do with Canada’s reputation as an illegal music downloading haven, presumably thanks to the popularity of peer-to-peer technologies, which makes it far easier for people get music illegally than to pay for it. The iTunes/iPod success story has some bearing for me, here. I think that if you make it easier for people to pay for something and legally download it than it is for people to get it illegally, then they will pay. By easier, I’m talking about some combination of price point and format. ITunes’s brilliance comes from its integration with the iPod interface. It’s slightly (or significantly) more of a hassle to go to a peer-to-peer program, search out a song and possibly make several unsuccessful attempts to download it then import it into iTunes (not that I would know about any of *that* firsthand), than it is to go to iTunes, download for a nominal fee, and have it seamlessly load onto your iPod. Plus, I do believe that it makes a lot of people feel good to know that they’re putting money towards a band or musician whose music gives them pleasure. The feel-good factor might not win out over ease of process (if it’s easier to do the illegal thing), but it adds positive reinforcement to the legal route, if all the other factors are aligned.

Make it affordable and easier than the alternative, and most people will do it.