In this blog, Doctoral Researchers at CREATe (University of Glasgow) Gabriele Cifrodelli, Weiwei Yi and Joséphine Sangaré report on the Copyright Evidence: Synthesis and Futures Conference.
On Monday 17 and Tuesday 18 October 2022 CREATe (UK Copyright and Creative Economy Centre) hosted the conference that concluded the “21 for 21” evidence project. The event took place in the brand-new, interdisciplinary Advanced Research Centre at the University of Glasgow. This information alone can already offer a glimpse of the importance of this conference, which involved scholars and academics from all over the globe (Australia, Canada, New Zealand, United States, Belgium, Estonia, Germany, Italy, Netherlands, Switzerland, and United Kingdom). As new PhD students, we had the great honour to attend the conference and support the CREATe Team. And as our first active participation in an event like this, our expectations have definitely been exceeded.
The ambitious aim of the 21 for 21 project was to have 21 copyright experts extracting and reviewing empirical evidence relating to a wide range of copyright issues relevant for the 21st century. Experts utilised the Copyright Evidence Wiki, a digital resource developed by CREATe, hosting a massive digital catalogue of 859 studies, categorising empirical research by industry, country, year, method and policy issue, amongst other variables. Each expert underlined a specific copyright issue, offered a summary of its debates, recent evolutions, existing evidence and research agendas, and suggested future directions for the research. The ultimate intent was to offer support to policy makers, non-governmental organisations (NGOs), academics and the general public, by helping them to engage with empirical work about copyright and perhaps, thanks to that, take effective policy decisions in this contested area of law.
The conference marked the conclusion of this project with five panels (plus a “synthesis” finale), with each panel focusing on a specific copyright issue addressed through the formulation of a provocative proposition. Moreover, we had the pleasure to host during the conference the editorial board of the Evidence Wiki itself and the general assembly of the H2020 reCreating Europe project. In addition, in order to involve the public at large (including former and current UofG students), we hosted an interactive and dynamic public event where Cory Doctorow and Rebecca Giblin discussed their new book “Chokepoint Capitalism”, addressing crucial issues for today’s society such as creator’s incomes, big tech monopolies, with a legal-economic critique of corporate power.
Naturally, the five panels formed the core of the conference, where the speakers (who are fellow participants of the 21 project) aimed to develop a solution on the related propositions.
Proposition 1: Copyright ensures that creators get fairly paid and recognised
Speakers: Ruth Towse (performers), Bournemouth; Ula Furgal (journalists), CREATe Glasgow; Luke McDonagh (moral rights), LSE; Joshua Yuvaraj [and Rebecca Giblin] (reversion), Auckland & Melbourne; ReCreating commentator: Joost Poort, IViR Amsterdam; Chair: Tanya Aplin, King’s College London
The first panel expressed a strong and shared disagreement towards this statement, for several reasons. Since cultural markets (where copyright creators operate) are unpredictable, the winner takes (almost) all, and most creators cannot live only on the earnings coming from their creative works. This is not strictly a matter of copyright but mostly of contracts reflecting asymmetric bargaining positions. There are issues concerning collective bargaining, on the one side, and the noticeable over-supply of creative works, on the other side. In this respect, the panel also included interesting insights into the unique reversion right. While the definition of reversion rights is broadly conceptualized, it can be primarily understood as the right to help creators reclaim control of their works. It is one of the ways that allows creators to escape from situations where their works are not being used adequately, while the other motivation is to enable these works to be made more available to the public. In this way, the work can be sold to other publishers or labels that create new reward streams. However, the evidence base covered in the synthesis is limited, and more investigations on this phenomenon are yet to be conducted.
Proposition 2: Stronger and longer copyright protection increases creative and scholarly output
Speakers: Paul Heald (duration), Illinois; Martin Kretschmer (non-use), CREATe Glasgow; Andrea Wallace (digital heritage), Exeter; Leonhard Dobusch and Konstantin Hondros (open licensing), Innsbruck & Duisburg-Essen; ReCreating commentator(s): Roberto Caso/Giulia Dore/Pinar Oruç, Trento, Trento, Manchester; Chair: Fred Saunderson, National Library of Scotland
The second panel unanimously disagreed with this proposition. It was specifically noticed by the panellists that the optimal term for copyright protection would be less than the minimum term specified in the Berne Convention (life of the author plus 50 years), because stronger and longer copyright protection naturally reduces access to creative works. Instead, shorter copyright terms are proven to promote access to works, especially in relation to derivative works. Indeed, the aspects of openness, freedom and autonomy were important in this discussion. Nonetheless, it is challenging to find a common ground on the specific duration and scope of protection for copyright due to difficulties in balancing private and public interests within the framework of existing international legal obligations.
When we reflected on the meaning of copyright in a more societal context in relation to the first two panels, our impression was that copyright law can be understood as a form of constitution governing the relationship between creators, their audience, states, and economic interests. We considered that the aim of copyright should be to mediate between the creators’ interests, the users’ and audience’s interests, and the interests of a free, demand-driven economy. However, this aim is not reflected in the economic practice of the creative economy. Private actors have gained increasing power over the creator’s ability to exercise their rights and left audiences with limited choices to access creations. Increasingly, content providers (i.e., platforms) determine remuneration rates, and their algorithms impact the visibility of content, thus impacting the potential for public recognition. This phenomenon is not limited to one specific branch of creators but extends to the entire industry, adversely affecting all copyright actors.
Proposition 3: Copyright enforcement measures are effective in regulating infringing behaviours
Speakers: Matthew Sag [and Pamela Samuelson] (litigation), Emory & Berkeley; Joost Poort (piracy/streaming), IViR Amsterdam; Kris Erickson (takedown), Leeds; Christian Peukert and Margaritha Windisch (digital business models), Lausanne; ReCreating commentator: Christian Katzenbach, Bremen/HIIG Berlin; Chair: Guido Noto La Diega, Stirling
This proposition was more debatable and problematic, since it is particularly difficult to find a copyright enforcement measure that is perfectly effective. Indeed, strong enforcement against individual users does not ensure elimination of infringement once and for all. Further, it must be considered that sometimes access to infringing works can facilitate the dissemination of the infringed works among the public at large. This panel revealed that the evidence showing the extent to which so-called piracy substitutes one-to-one for lawful sales of works is mixed. In fact, there is evidence showing that piracy can lead to positive or neutral effects on sales. In general, the panel pointed out that the technical complexity of the research derives from the diversity of consumers, industrial contexts, business models, and marketing strategies that the research needs to take into account. For instance, the panel observed that the trend of promoting access to legal content through attractive business models tends to work better in pre-empting infringement, and that web blocking had advantages over taking down infringing websites. Also, in terms of specific measures, ex ante enforcement (of the kind obliged by Article 17 of the recent CDSM Directive) can limit the cultural diversity of lawful content. The panel concluded that perfect enforcement comes with its own risks, both to rightholders lacking information about potential customers and to societies seeking to safeguard due process.
Proposition 4: Copyright works similarly in all creative industries
Speakers: Giorgio Fazio (trade), Newcastle; Magali Eben (competition), CREATe Glasgow; Kenny Barr (creative industries), CREATe Glasgow; Raffaele Danna, [Arianna Martinelli and Alessandro Nuvolari] (negative space), Sant’Anna Pisa; ReCreating commentator: Eneli Kindsiko, Tartu; Chair: Gillian Doyle, CCPR Glasgow
This proposition was strongly rejected by the speakers. Overwhelmingly, the panel observed that copyright does not work the same in all creative industries, considering that there are a series of variables that can influence their functioning, such as the difference between service and product-oriented markets, levels of digitalization, the role of contracts and intermediaries. In particular, alternative, quasi-copyright systems have been identified where copying (and so copyright infringement) is not only tolerated but it is directly linked to sustaining the creative industry itself. The panel also reflected on the fact that, disproportionately, most empirical evidence on how copyright works in society is drawn from research in the music industry; more research on other industries is required to determine the veracity of the proposition.
Proposition 5: Users’ interests are accounted for within the copyright regime
Speakers: Carys Craig (gender), Osgoode Toronto; Bartolomeo Meletti (exceptions), CREATe Glasgow; Thomas Margoni (computational use), KU Leuven; Amy Thomas (UGC), CREATe Glasgow; ReCreating commentator: Peter Mezei, Szeged; Chair: Luis Porangaba, CREATe Glasgow
The answer to the fifth and last proposition of the conference was: “it depends”. Speakers from this panel emphasised that users’ interests are met differently based on a series of factors such as gender, jurisdiction, and scope and definition of the users’ activities. For instance, in terms of gender, we observed that women are most inclined to respect copyright and other creators’ works in general. Other empirical research shows that, in the context of social media, there is a salient discrepancy between a user’s understanding of the terms and conditions (T&C) they routinely agree to, and the copyright-related consequences from clicking ‘I agree’. This further highlights the need for public copyright education, and provokes us to think about how we mitigate the power imbalance between platforms and individual users. Therefore, when researchers conduct research, it must be clear which kind of user they focus on, and to what extent the contextual factors can account for individual user characteristics.
Public Event: Fighting the Digital Dystopia: Platform Power and Creative Markets
During the public event, Rebecca Giblin and Cory Doctorow introduced their new book “Chokepoint Capitalism”. The book explores a fundamental tension in cultural markets. On the one side, the monotonic expansion of copyright (e.g., copyrights term, scope) makes it easier to prove copyright infringement, and the size of entertainment industries have grown significantly in the past few decades. On the other side, creators’ share of income has declined, both in real terms and as a proportion. After a series of investigations, the authors concluded that the problem rests in the structure of the market. Cory Doctorow and Rebecca Giblin argued that our cultural markets have ‘chokepoints’, where audiences are captured within a mix of technical and marketing measures. Creators also need to pass through this chokepoint, which is maintained by monopolists who are in control of selling and buying power. Cory Doctorow and Rebecca Giblin explained the chokepoint phenomenon in detail through their case study on the audiobook and e-book business on Amazon and the music platform Spotify. They specifically showed how big platforms create their eco-systems to lock-in customers, and how this grants the platforms themselves disproportionately massive bargaining power over suppliers, which ultimately get locked-in as well. Cory Doctorow and Rebecca Giblin suggest that the solution to these issues should be to enforce measures that encourage new entrants into a market which directly regulates excessive buyer power or builds countervailing power among workers and suppliers. In particular, they advocate that reforming collecting societies is the key, as well as collective action from the creator’s side (e.g., through unionisation).
The discussions during the conference raised many pressing issues regarding the role of copyright as a constitutional framework to protect creators’ rights and to mediate the creative industry’s interests, with the demand of consumers and businesses. While some of the issues raised have been subject to discussions for a long time, e.g. the duration and scope of copyright protection, other gaps were discovered through the Evidence Wiki project. The work of CREATe has established the magnitude of opportunities arising from the pursuit of empirical legal research to allow for a needs-based policy development process.
However, it is important for us to ask about how the recognition of these imbalances in the copyright system can be resolved through policy, or their application within the creative industry. This takes us back to the role of private actors in the constitutional framework of copyright law: what can users and creators do to achieve fair recognition and overcome social biases therein? Enforcement measures attempting to regulate infringing behaviours require similar considerations. Despite being unlawful, the unauthorised dissemination of creations is not necessarily solely to the disadvantage of the creator, e.g. where broader public access increases awareness for the existence of the creation or where a creation is enhanced rendering it more profitable. Another important consideration is the universality of copyright law. The needs of creative industries vary, yet industry-specific regulations bear the risk of legal fragmentation and contradictory regulatory frameworks.
The final conference declaration will be available on the CREATe website in the coming weeks, providing us with an action plan for future steps towards a more effective copyright law regime, reflecting the results of the synthesis.