Daring to say that our copyright system is in crisis is regarded as heresy by those in the recorded music industry – to suggest that it is obsolete is unthinkable.
In 1616 the playwright Ben Jonson, became the first author to assert the copyright in his Workes by depositing a copy at the Stationer’s Registry. The first poet laureat, he was at the height of his popularity and he wanted to assert the primacy of his version of his plays. Up until this time it was common practice for theatre companies to roam the land, staging plays with huge variations in how the parts were performed and the lines that were delivered because they simply didn’t know how the original went. Today, artists in all areas of the creative arts are changing things and mixing things up precisely because they and their audiences know exactly how the original goes.
The copyright regime that we have enjoyed for the last three hundred and ninety three years has of course been gradually refined since Ben Jonson, but the dramatic changes of the last ten years brought on by the internet have made it look increasingly archaic. Copyright law can no longer protect artists from consumers copying their work and the mechanisms by which it is enforced have made it almost impossible for mash-ups and remixes to happen legally with any speed or fluency either. We neither properly provide for conventional content creators nor fully enable innovators. The system is broken, it needs fixing and as a result there is a fascinating debate going on in which rights owners’ rhetoric vies for the attention of governments against a global cultural community at grass-roots level who doesn’t have access to funding or lobbyists, the tech-savvy next generation of creatives, who want to talk about the exciting possibilities of the future.
The simple technological truth is that digital media can be copied and no one can stop that happening. The only thing that content creators and distributors can do is to put speed bumps in the road. Global culture increasingly wants music, video, games, and software to be available easily, interoperably and preferably for free. Fortunately there is also lots of evidence to suggest that online consumers are interested in spending dollars on content online – especially if it is easy, the format is attractive and the experience is enjoyable. But nonetheless, the IFPI insists that 85% of traffic across internet service providers’ networks is attributable to illegal file-sharing. And of course, it’s over the music industry, by dint of its small perfectly formed file sizes, that the waves of the digital tsunami have crashed first and most violently. The recorded music industry has lost something like 30% of its value in the last eight or nine years – and at least some of that is down to increased internet file-sharing.
Seemingly recognising this and a range of other contributing factors, the UK government has launched two public consultations in the last few months. Lord Carter’s Digital Britain report focuses largely on the future of broadcast, radio and wireless networks, but tries its hand at offering some kind of regulatory solution between rights owners and the internet service providers who are accused of benefitting from the traffic of all this illegally shared content across their bandwidth. The UK Intellectual Property Office sensing the insecurities and perhaps the inconsistencies in copyright legislation has launched its own “informal stakeholder consultation” into the future of Copyright in the 21st century directed by junior Rights Minister, David Lammy.
In Europe, the highly controversial EU Medina Report is due to be voted on by MEPs in the next few weeks. Medina aims to update the EU Copyright Directive in a number of different areas including extending the term of a recorded music copyright from 50 years to 95 years. Considering how difficult it is to enforce any protection at all currently, it is hard not to feel that the EU is looking in the wrong direction on this one. The UK is already standing out against this recommendation and suggesting a compromise at 70 years. Given the current appetite for remixing and reworking, some are arguing that maybe 10 years would be more enforceable and lead to greater exploitation opportunities by allowing works to be open sooner for incorporation, adaptation or pure mashing-up (perhaps this might be feasible if there would be some compulsory remuneration involved for a set period before becoming fully public domain).
It’s not as if the legal fraternity has not attempted to address the problem. Stanford Law Professor, Lawrence Lessig has created a new framework which is designed to allow creators to permit others to use their work in non-commercial circumstances. There is an entire movement gathered now behind Creative Commons (CC) and its non-commercial licenses are visible increasingly, often from more philanthropic or public-service oriented media producers like museums and galleries, through to the TED-talks or new young musicians interested in collaboration like those who work is on sale from CC only store Jamendo. Ironically, although Lessig seeks to democratise certain aspects of copyright and enable a degree of legalised freedom of usage, Lessig’s licenses still depend upon a legal construct to impose some kind of control over the swirling, liberalising inevitabilities of digital technology. And so scary is the prospect of change that Lessig is regarded by the recorded music industry as some kind of pariah plotting the downfall of musicians everywhere. One senior record company executive whispered to me without a whiff of irony: “He’s funded by Google you know, there’s a massive technologists’ conspiracy to bring down the music industry”.
So strong has been the scandalised outrage at illegal filesharing and the daily abuse of copyright that it has been hard to start to talk about what the world might actually look like when the reality of the old copyright mechanisms are not just much reduced but vanish altogether.
There are plenty of signs of how to begin to envision a culture in which music, games, stories, news, movies – are produced collaboratively and interactively. The games industry, the newest of the content industries and now the biggest, has also been the earliest to adapt. For example, the latest release of market leading game Grand Theft Auto – “the Lost and the Damned” is innovative both because it will be sold as a digital download only, but also because it comes in the form of a modified version of the previous release. The dramatic setting remains in the fictional Liberty City but the gamer gets to play from a new point of view of a different character with new story lines and new situations. For these recessionary times, this has the merit of saving RockStar Games, the developers, lots of cost on rendering new cityscapes and at the same time lets the gamer extend the previous episode from a new angle. In the case of Sony’s Little Big Planet Playstation game, released last year, part of the appeal of the platform is how it allows users to create their own levels and their own characters and allow others to play with them. So far, says Ray Maguire, SVP of Sony Computer Entertainment UK, there have been some 2,500 new levels created and over 2 million plays of them.
One key effect of this is that the single author, the individual of vision, is displaced by multiple contributors who may lead or follow, play major or minor roles, agree or disagree with each other. In this culture the idea that any one statement or creative gesture can represent “the last word” comes to an end. Instead there’s seamless versioning. Morphing of works becomes the expected. Charlie Leadbeater has called this “mutual media”.
Until very recently the listening majority has been content to hear some meaningful music when they’re driving in their car or doing the washing up. For them, the world of interaction and collaboration seems remote, too much like hard work, not part of the couch-potato passive consumption they’re used to. But whether it’s in Little Big Planet, as we’ve seen, or in World of Warcraft with it’s current 11.5m monthly subscribers, new consumers are increasingly creators themselves. And the good news for the creators of these platforms is that people are keen to pay for the privilege. The same is visible in the massive popularity of games like Guitar Hero and Singstar where it’s all about the player’s active participation. The quality of creativity may vary but the model in which users interact and create their own elements in a game is more and more visible. The many thousands of video mashups on YouTube are further demonstration that this is a more common behaviour than you might think. Apple’s Garageband and other music creation applications like it are starting to attract the attention of lots of users at home and in schools. They’re beginning to level the playing field of music creation. Anyone can start having fun making music that sounds half decent – and from there it becomes something else and quickly can belong to everyone else too. Try listening to all the various re-mixes of Radiohead’s track Nude that their fans have submitted to the band’s website or the one they’re opening for remixing currently: Reckoner.
For the most part, rights companies like games publishers or even software creators like Apple, still try to retain a lot of control over their users’ behaviours. They tether the games to the platform devices and, only a year ago Apple was still adding its own form of copy protection to music on iTunes so that it could not be played outside their platform. The decision to cease doing this and the major labels’ agreement to remove digital rights management (copy protection) from their files on iTunes was an acknowledgement on their part that the system did not work and that it inconvenienced people too much. So even as they protest and lobby to try to protect their version of the copyright system, their commercial actions suggest that they are starting to understand how broken it is. The recent decision by the BPI and the RIAA to stop suing consumers for illegally downloading music is a further indicator that even the rights owning companies recognize the damage they are doing to themselves of going against the flow of where new active consumers and the internet are going. This does not mean the end of creators’ rights but it does demand big changes in the mechanisms for applying those rights. (It’s all about the meta-data stupid!)
So as everyone tries to adjust, we’re starting to see the ways in which artists, writers and other cultural producers might begin to be paid again for their work – in ways totally different from today. Some have foregone value in the content altogether and go find it in the accompanying experiences. So, for example, the album becomes a promotional tool for the tour. It’s been that way for years for the Rolling Stones whose old catalogue is way more valuable than their new songs will ever be. But new or unknown artists are also finding that they can give their music away and use the recordings to drive their fans to their gigs. A little company called MusicGlue has created a platform that allows artists to take advantage of the huge, viral word of mouth effect of online communities and make the file-sharing networks become the opportunity to reach an audience and grow it not the means by which value is lost. In the new creatives’ rights culture, the way creators are getting to publicise new work is precisely by allowing it to be passed around and rewritten or mashed up by friends, partners, enemies – or total strangers from the other side of the world. Possibilities for our new copyright culture start to emerge in which it’s not the content itself that retains the value, but the path that it takes, the hands that it passes through and the other content it consorts with along the way.
Of course, there’s still loads to figure out. Even the leaders of the pack, YouTube and Facebook, are still experimenting with how best to make real money out of the relationships they enable between “friends”. Some of the more extreme or innovative new businesses like Twitter, MusicGlue or MusicMyne are emerging despite their economics not because of them. Different sectors are at different stages and will respond in different ways. Amazon has launched the updated version of its new electronic book reader. The Kindle 2, released this month and the Sony eBook reader are the beginnings of the breaking of the digital wave in the book world. eBooks currently represent a mere 0.01% of total book sales, but their year-on-year growth for the first nine months of 2008 was over 55% while physical book sales declined by some 3.8% in the same period. In November the growth was over 100%. The book has tremendous enduring characteristics that suggest it will never vanish, but eBooks’ growth suggests that, albeit slowly, even the stuffy world of book-publishing is opening itself to the opportunities of digital distribution and ultimately collaborative interaction.
For some, it all looks too much like a medieval, lawless, anarchic world in which the rich and strong, the famous and the corporate survive – and everyone else rips each other off all the time and flounders in the mud. But our current copyright fixation on the ur-text is antiquated. Instead, we will find ways to be engaged by the conversations that the work provokes, by the paths its super-distribution takes, the iterations that it undergoes and the interactions it provokes. This implies a totally different model of consumption as well of production of creative works – and one that we already have glimpses of in our blogs, Twitter, the music mixes on MySpace, the video mash-ups on YouTube and mod-ed (modified) video games posted on game sites all over the web.
So does this mean that there will never be any masterpieces ever again? Does this imply that a fixed and perfected work of genius will never emerge as the must-read book or the must-see film or the must-listen album? Of course not, we live in a highly individualistic, even fetishistic, hero-worshipping culture. We will always crave that defining statement, the single authoritative view, the unique voice of the star. Just as newspapers, radio and television have not been superseded by websites, so digital culture will only be enriching. But however detached, crafted, manicured and “finished” a work may be – if it’s digital, it is appendable, amendable, adaptable too.