In response to a lot of what is occurring in the world of copyright law, Cory Doctorow is making the case that we are in a Copyright crisis.
With all that has happened in the last decade in copyright law, are we in a copyright crisis? For long time digital rights advocate, Cory Doctorow, we absolutely are.
Of course, the comments are quite nuanced to come to the conclusion. In summary, the crisis is coming about due to serving big interests at the expense of everyone else. One aspect of copyright law that is a contributing factor is the increasing length of copyright terms.
The Lengthening of Copyright Terms
Generally speaking, when a creator affixes an art (that is, recording, posting, publishing, painted, or any other way art is placed on a medium of some kind), that work is immediately copyrighted to the creator. It grants a temporary monopoly on rights to that work. Per copyright law in many countries, you can’t sell, re-distribute, or claim that work as your own among other things. Of course, the key term in all of this is “temporary” meaning it doesn’t last forever. Once that term expires, it enters into what is known as the “public domain”.
The public domain is a state in which there are no exclusive rights for the author. While some might react and say that this is horrible for the author, the thing is, the Public Domain is a hugely critical aspect of copyright that allows works to be re-used by other creators to make something new again. It allows for the renewal of creativity to take hold. For pretty much any creator alive today, those creators learned from past works. They receive influence and inspiration and create new works utilizing the old works as building blocks. This constant cycle of renewal is what allows creativity to continue to flow.
Unfortunately, along the way, corporate interests took over and lobbied for the rules to be changed. Originally, the length of copyright was, if you can believe it, 14 years. Arguably, that is plenty of time to exploit the work and earn a living from it. While that may be true for the creator, corporate interests are much more concerned about control. So, after years of lobbying, the length of copyright has extended repeatedly.
Eventually, the length extended to the life of the creator. Then, years began being tacked on. Eventually, the international standard came about from the Berne Convention where the international norm became life plus 50 years. This isn’t some altruistic effort for concern for the creator. Instead, for corporations like major record labels, the rights are generally sold to them so they reap the benefits for the most part. Whether the original creator actually benefits from this deal is, at best, debatable.
More recently, even life plus 50 years isn’t enough for these corporate copyright monopolies. Now, there is a push to get countries to extend the already extreme copyright lengths to even further extremes. As we saw in the NAFTA 2.0 case, Canada is being pressured to abandon the international norms and extend copyright to life plus 70 years.
The effects on creativity in all of this is profound. Instead of seeing works fall into the Public Domain, ready for re-use, the Public Domain winds up stagnating. It’s never expanding. These days, in some cases, even using public domain material opens you up for infringement claims. In short, culture is increasingly being locked down by a handful of large corporate interests.
Expansion of What Can Be Copyrighted
While the length of copyright terms is certainly a contributing factor, it isn’t the only factor in all of this. The question of what are the exceptions to these terms is being redefined as well. Initially, there was a set of exceptions to copyright laws. This is to allow the re-use in a fair manner. In Canada, this is known as Fair Dealing. In the US, this is known as Fair Use. While the exceptions do vary from country to country, there are certainly common threads.
Exceptions include for educational purposes, criticism, and journalistic purposes. In some countries, there are also exceptions for the purposes of parody and satire. An excellent example is what students are expected to do when they write essays. In an essay, students can take a paragraph or two and use it for illustrative purposes to bolster their argument. It is painfully obvious that the purpose isn’t plagiarism, but rather, to show that others are making similar arguments (or, they are quoting the material to criticize and make contrary arguments). These excerpts are cited and fully referenced as well.
We see this in other mediums such as documentaries, oral presentations, and even the use of logos on a daily newscast. It’s not copyright infringement since it is used for illustrative purposes. It helps create a new work and doesn’t represent an overwhelming part of the body of this new work. This has ultimately been part of the bedrock of many industries and is ultimately the norm for some time.
Unfortunately, those rules began changing in the last few decades. One profound piece of legislation in the US is known as the digital Millennium Copyright Act (DMCA). Part of the law says that of a technical protection measure is in place, then exceptions such as Fair Use no longer applies. This is because breaking a copy protection (often referred to as Digital Rights Management or DRM) is, in and of itself, an act of copyright infringement. This represents a whole new layer of restrictions that otherwise never really existed before. This concept isn’t just exclusive to the US because corporations have been using the DMCA as a template to pressure other countries around the world to adopt similar laws.
Digital rights advocates have been trying to chip away at this new barrier just to restore what was originally part of the social contract in the first place. Yet, while advocates were trying to restore balance, corporations were busy trying to find new ways to expand what is copyrighted.
One example is the Google v Oracle case where APIs are now suddenly possibly copyrightable. This has never really happened before because computer interoperability is key to a healthy innovative computer market. Now, Oracle is saying that they should be allowed to copyright their API and demand royalties for any re-use of their code regardless of how significant it is. The tech companies are, of course fighting this and the case now waits for a decision at the US Supreme Court. Unfortunately, things are not looking good for innovation on that front.
Then there is music. Generally, as long as your not copying a significant portion of the music, it was all fair game. A bar or chord progression isn’t significant enough to be considered copyright. That is now changing thanks to a variety of court cases. It’s now getting to the point where chord progression and the “feel” of music can now be copyrighted. The significance of this change cannot be understated in the world of music. As Rolling Stone points out, artists are now increasingly hesitant on making new music for fear that someone, somewhere, in some obscure part of the music industry, might sue them for copyright infringement. From Rolling Stone:
Most of the world knows Robin Thicke, Pharrell Williams, and T.I.’s “Blurred Lines” as a half-forgotten hit song from 2013. The music industry remembers it as its worst nightmare.
In the five years since a court ruled that “Blurred Lines” infringed on Marvin Gaye’s 1977 “Got to Give It Up,” demanding that Thicke and Williams fork over $5 million to the Gaye estate for straying too close to the older song’s “vibe,” the once-sleepy realm of music copyright law has turned into a minefield. Chart-topping musicians have been slapped with infringement lawsuits like never before, and stars like Ed Sheeran and Katy Perry are being asked to pay millions in cases that have many experts scratching their heads. Across genres, artists are putting out new music with the same question in the backs of their minds: Will this song get me sued?
“There is a lot of confusion about what’s permissible and what’s not,” says Sandy Wilbur, a forensic musicologist who served as an expert witness for the defense in the “Blurred Lines” case. Because cases are decided by “the average listener, who is not an educated musicologist or musician,” she notes, “labels are very afraid.” Since that game-changing ruling in 2015, Wilbur says, she’s received triple the number of requests from music companies to double-check new songs before they are even considered for release.
How did this culture of fear drift into the recording studio? The answer is twofold. While copyright laws used to protect only lyrics and melodies (a prime example is the Chiffons’ successful suit against George Harrison in 1976 for the strong compositional similarities between his “My Sweet Lord” and their “He’s So Fine”), the “Blurred Lines” case raised the stakes by suggesting that the far more abstract qualities of rhythm, tempo, and even the general feel of a song are also eligible for protection — and thus that a song can be sued for feeling like an earlier one. Sure enough, a jury in 2019 ruled that Katy Perry owed millions for ostensibly copying the beat of her hit “Dark Horse” from a little-known song by Christian rapper Flame, stunning both the music business and the legal community. “They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone,” Perry’s lawyer Christine Lepera warned in the case’s closing arguments.
This ultimately compounds the problem in copyright these days. When considering how there is only a limited number of notes on the musical scale, it doesn’t take a genius to figure out that there are only a limited number of theoretical combinations one can produce to create a melody. As anyone listening to music would know, there are plenty of bad melodies to go around, but only an increasingly small number of melodies that actually sound good to the average listener. Thus, the limitations become much more profound when talking about music that sounds good to your average westerner’s ear.
By adding many more limitations such as how a song “feels”, the limitations become even more extreme to the point of finding a sufficiently novel pattern becomes nearly impossible after a while. Even when one is found, how many ways can that be locked down by the creator? That only serves to perpetually decrease the number of available possible “legally safe” tracks to be made.
Marketplace Concentration
A third factor mentioned by Doctorow is the increasing concentration in the marketplace. This is something I have witnessed in my own industry (news) throughout my entire career. During my years of working at Slyck in the mid 2000’s, just ask what is required to make a half decent and viable site. Do you have a name? Check. Do you write quality and original news? Check. Do you have a website complete with domain name and server to publish news? Check. Do you have a revenue stream of some sort? Check. Good job, lad, you pretty much have all the ingredients to make something basic and viable.
As time went on, other peripheral features became extra boosts to a viable site. Things like a web forum and guides really helped establish yourself not only as a viable site, but a stable in the world of news. By the late 2000’s, those elements became mandatory to keep yourself afloat. This is combined with the necessity of being posted on major social media platforms which was a booming new sector in the web landscape at the time.
Around the time I joined ZeroPaid, being posted on a major social media platform regularly was almost a requirement to keep yourself relevant. Even then, the barrier to entry was low. All you needed to do was publish reliable quality content which writers like us at the time in spades. Still, an underlying issue that didn’t seem like a big deal at the time is that you are now dependent on others for the necessary eyeballs.
By the time the 2010’s rolled around, being on social media platforms was a requirement. What kind of journalist doesn’t have a Facebook profile or a Twitter account? Heck, get both now. Additionally, websites had to be specifically coded to be mobile friendly which was unheard of in the previous decade. Perhaps, even more troubling, is an aspect no one in the business likes to talk about: the money that changes hands to social media power users and “influencers”.
Your success no longer depended on the quality of your material anymore. Instead, you had to be in constant contact with teams of social media posters and influencers to coordinate efforts to not only ensure your content is posted, but voted up to the top to make it onto the front page of critical sections of a website (or, the holy grail, the front page of the site). For a period, the major site was Digg, but it gradually became Reddit after. Already, we’ve gone from eyeballs you used to get for free to requiring whole teams of people to get what you had in the past.
Unfortunately, this set the stage for what would be an even worse situation these days. Many major sites have gone from “what was interesting and quality” to “what we think is credible”. For editors and influential users, that means more or less relying on a white list of “credible” sources. These “credible” sources wound up being established media players such as The Huffington Post, Reuters, Washington Post, and what is arguably the worst source out of all of them, The Daily Mail.
If you were part of a smaller site, not only did you face constant downvotes and an impossible hill to climb to make any kind of headway in this business, but you also face outright censorship where your URL gets stripped out of submissions and replaced by a URL from an established players. In one particular egregious incident, I watched as someone submitted a URL from one of my articles only to see it stripped out and replaced with another site that used my article as the basis for their article (Arstechnica). Ultimately, I did all the legwork and someone else got the reward for it because they read my work. It’s not that Arstechnica stole anything, they did what is common practice in the business. It was what happened on social media at the time that burned me in the end because established users somehow felt someone else was magically more credible than me.
But this is by no means the end of the consolidation. The shift is happening where the likes of Facebook in the last few years have ultimately become a primary source for many of those much-needed eyeballs. Instead of a small handful of gatekeepers on big social news networks determining who wins and who loses in this business, it’s increasingly becoming maybe one or two that really matters in the end. Now, you really can’t make it unless you have a contingent of marketing experts working for you to make sure your presence on Facebook is particularly felt. If you don’t have a multi-million dollar budget to make it happen, you better hope you are already an established player dating back at least 50 years or your sunk. Even then, that is increasingly something you can’t rely on.
A side issue in all of this is the changing of an audience. For quite some time, you could depend on a reasonably skeptical audience. As a journalist, you knew people will probe your work for faults. Some critiques can be more trolltastic then others. The end goal, of course, is being gradually better educated on the intricacies of a given topic and being able to provide higher quality content to readers.
All this changed with the election of the now impeached US President Donald Trump. The existence of those influencers and power users mentioned previously would go on to mutate a much more sinister variation of those known as trolls and troll farms. The logical progression is that if you can pay for eyeballs, you can pay for eyeballs pushing a fictitious message.
The effect on the audience, again, became profound. What was healthy skepticism among the audience morphed into an audience susceptible to intentionally erroneous messaging. “Fake News”, as so frequently highlighted, became rampant. Subsequently, things like confirmation bias and filtering out news you disagree with also became rampant. No longer was information seen as something to use to become informed. Instead, information (accurate or inaccurate) became a weapon to attack “the other”. Even when you are a neutral journalist only interested in the facts, that really only serves to be absolutely hated by everyone.
The divisive nature of a militarized audience (especially in political circles) would increasingly mean that publishing neutral content would become less and less viable. Fewer people are interested in gaining a good grasp of a subject and more people are more concerned with what is “in it for me” or “does it make them look bad?” At best, your potential audience is going to be cut in half regardless of who your are. With a hardened fractured audience, this only further compounds the problem of trying to make a small independent news website viable. Fewer gate keepers for eyeballs and a fractured audience with a closed mine is a potentially fatal mixture in and of itself.
With an increasingly small audience to work with, the barrier to entry becomes increasingly steep to the point where no one can be reasonably expected to compete without significant backing. With options to grow your audience becoming increasingly centred around a very small number of sites with an already high barrier to entry, there’s really very little reason to wonder why it’s an oddity that a small news site like Freezenet exists in the first place. It’s an environment designed to such a degree that only the biggest players can be reasonably expected to survive.
Of course, websites generally don’t exist without some kind of revenue stream. That is obviously a challenge that is increasingly becoming problematic. Even since starting Freezenet, the amount of views we get hasn’t really changed that much. Yet, at the same time, the amount we receive for ad revenue has gradually declined throughout the years. The amount of money per eyeball keeps sliding. For the thousands in pageviews we get, we used to have a half decent revenue stream going. Now, for the same click flow, we are seeing the revenue of mere pennies compared to what we get before. Even a one-off link on a larger social news platform may net you around 50 cents if you’re lucky. For a smaller news site, that’s a once in a blue moon accomplishment.
Rather than insult you by dumping more ads on our site, we opted to diversify our content and offer more opportunities to financially support us. These efforts are helping in small ways, but in a world where pay and benefits are decreasing and more people find themselves saying, “I’d love to help you, but I don’t have the cash”, such efforts can be, at times, a tall order. The fact that an independent news website can’t even get a single person to financially support the site speaks volumes about how tough it is to be an honest journalist these days without a mainstream name associated with you.
At the end of the day, the news business is seeing elements from all direction strangle into effective extinction. This effect is, by no means, unique to news, but it is a shining example as to how consolidation has helped stamp out competition and removed all but the truly dedicated (creators who do it for the love of the form and are willing to work for free) – not that most people will generally ever know who they are. Additionally, we aren’t fools to think that it couldn’t get worse than this. We doubt we’ll even be alive to see the bottom of this abyss.
The Increasingly Hostile Tech Sector and the Rise of Censorship
Another point highlighted by Doctorow is how major platforms are also increasingly censoring content. As I touched on above, censorship has become increasingly problematic in the creative world. Part of the problem is how the technology sector has evolved in the last decade or so.
Perhaps an early point in history that brought on this era is the question of safe harbour. Even with the deeply problematic DMCA laws, there were, at least, provisions that said that you could rely on safe harbour provisions. You are simply a conduit, you are not responsible for what users do with the connection.
Unfortunately, major corporate interests have been narrowing what allows you to qualify for these provisions. Initially, you have to forward notices of infringement to subscribers. Compared to more modern times, this is pretty innocuous. Eventually, ISPs had to disconnect so-called “repeat infringers”. It has now gotten to the point where ISPs can be sued if they do not do so fast enough.
It isn’t just ISPs that are now forced to become copyright police. Platforms are increasingly being expected to act as copyright cops. Given the volume of content (and complaints), it is much easier for the platform to simply just take down and censor the content based on a single complaint rather than investigate the merits of the claim. The end result is that copyright trolling and copyright fraud has become an industry in and of itself. The gravity of how censorship can become an industry in and of itself by various actors of increasingly questionable origin cannot be understated.
As Doctorow points out, fighting this long-standing trend is an incredibly tall order for creators. From the EFF:
The monopolization of the online world means that all artists are vulnerable to changes in Big Tech policy, which can see their livings confiscated, their artistic works disappeared, and their online presences erased due to error, caprice, or as collateral damage in other fights. Here, too, independent artists are especially vulnerable: when YouTube’s Content ID copyright filter incorrectly blocks a video from a major studio or label, executives at the company can get prompt action from Google — but when an independent artist is incorrectly labeled a pirate, their only hope of getting their work sprung from content jail is to make a huge public stink and hope it’s enough to shame a tech giant into action.
As online platforms become ever-more-central to our employment, family, culture, education, romance and personal lives, the tech giants are increasingly wielding the censor’s pen to strike out our words and images and sounds and videos in the name of public safety, copyright enforcement, and a host of other rubrics. Even considering that it’s impossible to do a good job of this at massive scale, the tech companies do a particularly bad job.
With the challenges of anyone in the business of creating something – especially if you are a small independent voice – the fact is, the Internet years ago opened up a world of possibility. Instead of needing millions to launch a career in a comparatively archaic world of Radio and record deals, you could simply go online and do what OK GO did and create an entertaining video on YouTube instead (sadly, now wrapped in VEVO).
Content online flourished when you didn’t need mountains of analysis and market research before you were permitted to try something – you just upped and did it hoping for some small amount of success. Those days are increasingly seeming to be dead as the very platforms that benefited from this open environment grow increasingly hostile towards the very creators that made them into the giants they are today. The biggest reason often cited is to win favour from the major entertainment industry with YouTube inking more deals with some of these players as an example.
As Doctorow points out, things only stand to get worse. With digital rights only able to try and mitigate the damage, Europe is about to bring in an even more draconian copyright law into force known as Article 17 (formerly article 11). The law itself is due to come into force next year and it will only make YouTube’s heavy censorship policies the norm rather than the exception. The laws themselves effectively mandate that platforms carry heavy content filtering to remove “undesirable” content. Since the scale of required moderating is impractical, it forces platforms to install burdensome expensive content filtering technology. There is, after all, a very good reason why advocates refer to this as “the Censorship Machines”.
With this alone, we go from censorship demands being made by highly flawed bots from corporate hitmen known as anti-piracy organizations to a system where the platforms themselves are forced to carry out the dirty work for the corporate censors. Even anti-piracy organization paid to issue mass censorship demands will have reason to worry that their futures may be limited after such laws begin to take hold.
Of course, the harm caused by these extreme copyright laws is only beginning. Not only will European users suffer the consequences of having their free speech effectively hindered, but corporations are increasingly motivated into pressuring other countries to implement their own mass censorship laws.
Already, after a highly flawed legal decision from a judge who is more interested in UK law than Canadian law, censorship is already beginning to expand in Canada. This after a failed massive approach to compel lawmakers to implement censorship laws at the ISP level to begin with.
With other countries like Australia already going off the rails in implementing their own censorship regimes, experiencing the free and open Internet will increasingly require knowledge from users willing to break the law and circumvent the government mandated censorship.
A Grim Future
Doctorow ultimately refers to all of this as innovation and the Internet being in a state of a copyright crisis. Really, it’s not that hard to see based on our own experiences and what we’ve witnessed. Between an increasingly narrow field of major tech companies controlling an increasingly large portion of the Internet, the consolidation of audiences, the fragmentation and increasingly close minded audiences (ala rampant confirmation bias and fake news), the squeezing of financial support from independent creators, the increasingly locked down nature of copyright rules that blocks creativity, and the rise of mass censorship, fighting to stay alive is becoming an increasingly impossible task.
Unfortunately, it’s difficult to see this trend coming even close to reversing. If anything, we are seeing signs that we are going to an ever increasingly locked down society where creativity and creation is ultimately snuffed out. Corporate interests only have their foot on the peddle to get even more of this. As a society, we’ll only be left with a desolate and dead creativity and creation sector where creation will only means litigation.
Drew Wilson on Twitter: @icecube85 and Facebook.
