This post is part of a series of evidence summaries for the 21 for 2021 project, a CREATe project within the AHRC Creative Industries Policy and Evidence Centre (PEC). The 21 for 2021 project offers a synthesis of empirical evidence catalogued on the Copyright Evidence Portal, answering 21 topical copyright questions for the 21st century. In this post, Kenny Barr (Research Associate in School of Culture and Creative Arts, University of Glasgow) explores the differences in how copyright operates between two industries: music and television.
The 21 for 2021 initiative served as an opportunity to ‘road test’ the Copyright Evidence Wiki resource. As someone who played a role in coding studies in early iterations of the Wiki it was interesting to revisit the updated and enhanced resource as a Wiki user with a clear objective in mind. The objective was to survey the Wiki for evidence sources relating to two distinct industry sectors: music and television.
Coming from a background in the music industries, both in terms of academic research and practice, I am familiar with many of the relevant empirical studies, the approaches employed and the main themes that permeate this body of literature. This material fits squarely in the ‘Sound Recording and Music Publishing’ category of the Wiki. My postdoctoral research involved a shift of focus to the UK television production industry which in the Wiki this is captured by ‘Television Programmes ’ with considerable overlap with ‘Programming and Broadcasting’. More recently, I have combined these research interests in work commissioned by the IPO examining music commissions for screen.
This type of migration from familiar territory, to less familiar terrain is common for postdoctoral researchers building an academic career. In this sense the Copyright Evidence Wiki is an invaluable resource for empirical researchers transitioning from one field of study to another. Moving between sectors raises the obvious question: does copyright works differently in these two industries? A logical follow-on question to this is: what does the Wiki tell us about how copyright works in these two industries?
In broad terms, my main research interests are ways in which creators/investors experience copyright and how it shapes their commercial decision-making at individual and corporate levels. These themes take on added significance as stakeholders in music and television industries continue to grapple with the challenges and opportunities presented by digitalisation and business model innovation. In ‘Wikiworld’ my interests most closely align with: E: fair remuneration (levies; copyright contracts); D: licensing and business models; and C: mass digitisation/orphan works but all of the Fundamental Issues apply to my work to varying degrees.
Of particular interest to me are so-called ‘life of copyright’ assignments of rights in the recording industry that are directly linked to the copyright term for sound recordings. In television the ‘terms of trade’ that govern control of intellectual property rights in television productions is a subject I am currently developing a PEC working paper on. A third area of interest is how music copyright transactions operate in TV production, particularly in respect of so-called’ ‘buyout’ agreements.
Copyright in Different Industries: Music and Television - Debates and recent evolutions
Experience of researching music and television suggests that copyright does indeed work differently in different industries. The music publishing and sound recording industries, are often characterised as ‘copyright industries’ where the creation and exploitation of copyright works lies at the heart of much of the creative and commercial activity. The core musical work and the recording thereof invariably has an identifiable author or authors and performers. Copyright is hierarchical: authors of compositions are afforded longer and stronger copyright than authors of recordings. Performers are not considered authors at all. And music copyright is said to reward rightsholders in ‘winner take all’ patterns. Interventions notionally aimed at ameliorating these inequalities have been the focus of a considerable volume of empirical study. Gowers (2006) and Hargreaves (2011) are examples of policy reports that address these issues. These wide-ranging studies are informed by sector-specific empirical studies from different territories, such as Brooks (2005) examination of copyright term in the USA. In this respect these more general reports serve as an entry point to burrow deeper into specific issues through any ‘Key Related Studies’ linked in a Wiki entry.
Television arguably has a less straightforward relationship with copyright than music. While it can be described as an ‘IP intensive’ sector, it is less readily characterised as a ‘copyright industry’ in the way that music or book publishing might be. With some exceptions, the author or authors of a television programme are generally less identifiable than the primary creators typical to the music industry. A television production may draw from a copyright work such as a novel or a screenplay, but other less clearly defined forms of IP such as format rights (Singh and Kretschmer 2012) are often central to the commercial exploitation of television content.
In the UK, television, a highly regulated strand of the broadcasting sector, historically has a very different funding model to popular music not primarily based on the creation and exploitation of copyright works. The proliferation of ad-funded and subscription streaming platforms such as Spotify and Netflix in music and TV industries demonstrates that the underlying business models of both industries is in a state of flux, and in some respects becoming increasingly intertwined. Moreover, although these two sectors have differing relationships with copyright, they do not operate exclusively of each other. Television productions invariably contain music. This can be licensed and administered collectively by collective management organisations (CMO). But in other instances, dependent on the jurisdiction, these licensing transactions are negotiated individually in so called ‘sync deals’ where recorded music is set to moving images, such as the lucrative US television market. In some instances, this will be existing commercial music and in others it will be specially commissioned for the production. Unpacking the complexity and nuance of these relationships is a considerable challenge, which is where the Copyright Evidence Wiki plays a valuable role for academic researchers.
What does the Copyright Evidence Wiki say? Existing evidence and research agendas
Employing the visualisation tools on the Wiki allows researchers to identify key themes and trends in the evidence sources contained in the database. Word Cloud provides an illustrative overview of the main themes by ranking word occurrence in the abstracts of studies. When this is filtered for Sound Recording and Music Publishing in Figure 1, ‘digital’, piracy’ and ‘sharing’ are among the most prominent.
Figure 1: Sound recording and music publishing word cloud
Figure 2 shows the word cloud for studies pertaining to Television generates many of the same central themes. Interestingly, ‘television’ is not nearly as prominent as ‘music’ is in the previous chart. Instead, the word ‘content’ is more prominent, perhaps reflecting the extent to which on-demand screen content is increasingly displacing linear television viewing both as an audience activity and as area of scholarly focus?
Figure 2: Television programmes word cloud
Within the Wiki, Sound Recording and Music Publishing is the largest constituency of entries with a total of 381 studies, compared to 134 relating to Television Programmes and 41 that come under the Programming and Broadcasting category. This skewing towards empirical work on the music industry is a feature of the wider literature, as demonstrated by Watson, Zizzo and Fleming (2015). Many of the studies that are categorised as television are actually general studies and reports that are not specifically about television whereas there are a considerable number of studies that focus specifically on music industry issues.
The Wiki usefully allows researchers to narrow the search terms to include studies that relate to one industry only, but given the interconnectedness of creative industries sectors many studies are relevant to multiple sectors. The visualisation in Figure 3 shows 168 studies that reside solely in the music category are almost exclusively 21st Century publications.
Figure 3: Sound recording and music publishing studies by year
Of the 31 studies that focus principally on television in Figure 4, all but one date from post-2000 and spikes in activity can easily be filtered to assess any prevailing areas of inquiry among the literature.
Figure 4: Television programmes by year
From these top line starting points the Wiki can be queried by increasingly granular filtering along lines of: policy issue, method and country etc. to generate useful graphic representations of trends in the evidence. Filtering by fundamental issue shows the frequency of themes. Methods displays proportion of studies using qualitative vs quantitative methods and the outer ring on the visualisation allows the specific method employed to be identified. Figures 5 and 6 contain visualisations for music and television respectively.
Much of the early discourse around the music industries in the digital age focused on the issue of unlawful filesharing or music piracy and this is reflected in the Wiki across both industries with Enforcement as the most frequently occurring fundamental issue. In terms of methods the Music studies lean slightly more towards quantitative methods than is the case in Television.
Figure 5: Sound recording and music publishing fundamental issue and method
Figure 6: Television programming fundamental issue and method
Although this unauthorised activity associated with Enforcement studies is the backdrop, and in many respects the driver, of the seismic shifts seen in Music and Television industries (as well as many others) since the advent of the ‘digital revolution’, this body of work is of limited direct relevance to my research interests. However, the Wiki functionality allows significant issues to be isolated such as fair remuneration (levies; copyright contracts) and licensing and business models, as well as sifting out those studies focusing on issues less relevant to my work.
The Wiki allows researchers to access valuable evidence sources on key policy interventions. Assessing optimal term of copyright is an endeavour with a history as long as copyright itself and this has permeated the scholarship, including Landes and Posner (1989) and Pollok (2009). Paul Heald’s recent 21 for 2021 contribution examined empirical evidence relating to optimal copyright term found in the Copyright Evidence Portal. Focus on this issue was particularly pronounced around consultation and implementation of term extension for sound recordings in 2013. This policy intervention extended the ‘life of copyright’ in recordings from 50 to 70 years but with a practically and conceptually curious ‘use it or lose it’ provision. It is perhaps unsurprising that this appears to have had minimal short-term effects, as indicated in Copyright Term Extension for Sound Recordings: Post-Implementation Review, IPO (2018). This source is in the process of being coded for the Wiki.
By comparison, policy interventions in the UK television sector, namely the ‘terms of trade’ established in the Communications Act 2003 governing relationships between broadcasters and producers, have had far-reaching intended and unintended consequences for the character of the production ecosystem. This allowed producers, rather than commissioning broadcasters to retain secondary IP rights in productions which has had observable impacts on the commercial strategies of commissioning entities and producers. However, studies on this issue appear to be absent from the Wiki which is indicative of the limited number of empirical studies into the effects of this policy lever being pressed. That said, some work does exist including Doyle and Paterson (2008), Chalaby (2010) and Esser (2016) for example, that contain robust empirical material potentially sufficiently related to copyright that could unlock a rich new strand of policy-relevant material in the Wiki.
Does Copyright Work Differently in Different Industries? Future directions for research
In the case of the music industry and the television industry copyright does work differently as it occupies a different position within the creative and commercial practices in these industries. The Copyright Evidence Wiki provides a direct route to valuable empirical studies on both of these sectors. The Wiki also highlights the scholarly preoccupations that exist and how these respond to events within sectors, forces that act across sectors and wider societal currents. Indeed, just as scholarship moves in response to specific events such as the emergence of Napster, the Digital Single Market Directive, and almost certainly in future the Covid-19 pandemic, it seems inevitable that the Wiki will evolve and grow organically to reflect these trends in scholarship. Moreover, the absence of certain types of study in specific areas also serves as a signal that these lacunae represent research gaps ripe for study by researchers seeking to add original contributions in their field. In short, the Copyright Evidence Wiki enables a probing examination of the existing evidence base and the trends seen in research across industry sector, fundamental issues, methods employed and many more vectors.