Copyright has been one of life’s certainties: but will it always be?

Copyright seems to be a fixture of our legal, economic and social systems. For 300 years, it has formed the backbone of the structures used to incentivise and remunerate creators. During that time, copyright has been extended repeatedly in length and breadth. The original term of the 1710 Statute of Anne – 14 years’ monopoly protection with a provision for renewal for a further 14 years – has blossomed into life plus 70 years for much of the world. Copyright now applies to areas far beyond the original scope of printed works. These constant and unidirectional moves by legislators around the world might seem to confirm that copyright is an effective approach where more is better, and that it is working as a means of rewarding artists fairly. The facts suggest otherwise.

For example, in 2018 the US Authors Guild conducted a survey of US writers. It revealed that the median author income was $6,080, down from $8,000 in 2014, $10,500 in 2009 and $12,850 in 2007. Respondents who identified themselves as full-time book authors still only earned a median income of $20,300, even including other sources of income such as teaching. That is a level that is well below the US federal poverty line for a family of three or more.

In the world of academic publishing, the situation is even worse: authors are typically not paid for their work at all. No wonder, then, that the leading academic publisher Elsevier has consistently enjoyed profit margins of 30-40% – far beyond what companies in other industries ever achieve. Moreover, academics are routinely required to assign the copyright of their work to the publishing companies. This has the effect of making it hard or impossible for researchers to share their own papers and results with colleagues unless they seek and are granted permission by the publisher. In this case, copyright impedes wider access to knowledge, and acts as an obstacle to the collaborative approach that lies at the heart of research.

Things are also bad in the music industry. A report published by a UK Parliament committee found in 2021 that “the terms under which the major music groups in particular acquire the rights to music favour the majors at the expense of the creators”. This has resulted in an average income for performers that is less than the median wage.

One possible explanation is that music streaming services and Internet platforms retain a disproportionately large share of the revenues they generate, and pay artists too little. A new report from the UK’s Competition and Markets Authority (CMA) explores this issue in detail. It found that “music streaming services are not making sustained, excess profits: indeed, our analysis has shown that many services have low or negative operating margins.” Another concern is that a large “value gap” might exist between what platforms like YouTube pay to artists, and what streaming services like Spotify pay for similar works. The CMA found that in 2021 the gap, such as it was, amounted to less than 0.5% of the £1,115 million total UK recorded music revenues that year – about £5 million. Shared among the 400,000 creators releasing music in the UK in 2020, that would represent an average “missing” payment of around £12 per year.

Even superstars struggle under the current system. There are few more popular musicians than Taylor Swift: her most recent songs occupied all ten of the top positions in the U.S. singles chart. And yet even she lost control of her early songs as a result of being required to assign the copyright to recording companies. Her solution was extreme: in 2020 she announced that she was re-recording those songs in order to retain rights to the new master recordings.

Copyright seems to serve the public well enough – there’s no shortage of books, music or films being produced each year. But here, too, there are problems, albeit of a less obvious kind – for example, the issue of orphan works. These are works, typically books, that are still covered by copyright, but unavailable because the original publisher has gone out of business, or simply isn’t interested in keeping them in circulation. Copyright means that unless the current owner can be located – a difficult task for obscure works that were created decades ago – it is against the law for someone else to reprint them. Nobody benefits from this, but attempts to address this situation, like the EU’s Orphan Works Directive have been half-hearted and ineffectual, and the problem remains.

The situation is arguably worse in the world of cinema. While books held in libraries are durable, and are likely to survive until such time as their copyright expires and reprints may be made, that’s not true for films, which often exist as a unique copy on extremely flammable or delicate media. It is estimated that already half of all U.S. films made before 1950 have been lost, while the figure for films shot before 1929 is over 90%. Copyright restrictions prevented copies being made of the films, which could have preserved them for posterity.

Nor is the digital world immune to this problem. The world of video games is already suffering because of copyright, which makes academics reluctant to risk transferring video-game code from older media such as floppy discs to newer, more reliable systems, for example cloud storage, in order to make backups. It also stops them from creating software emulators of the hardware needed to run old games. As a result, even when copyright protection on a game expires – in a century or so – there is a danger that copies of old video games will be unplayable because the media on which they are stored has degraded, or there is no hardware available on which to run them.

One of the main reasons that artists tolerate a system that sees most of them struggling to get by is that copyright is presented as the only way in which they can be rewarded for creating new works for the public. That may have been true in the past, but is no longer the case: the spread of the Internet means that there is now an alternative channel for creators to reach out to their audience. Music, books and films placed on a web site can be downloaded by anyone with an Internet connection, anywhere in the world. That global reach also allows completely new business models to be explored.

Perhaps the most promising of these is the “true fans” model, first articulated by Kevin Kelly in 2008. Instead of receiving a small cut of the sales revenues of works handled by intermediaries like publishers and recording companies, creators are paid directly by their most engaged, “true” fans, and keep almost all the money. That means a smaller number of true fans can provide the same level of financial support that a larger number of today’s customers offer. True fans typically pay regularly, and in advance of a work being created. The approach provides a steady income for an artist, and helps alleviate the fear of being without income until a work is finished and placed on sale.

The near-ubiquity of the Internet means that it is now possible for a creator to find true fans around the world willing to support their work, and for the latter to pay directly, using well-established services like Patreon and Kickstarter etc. A good example of how a well-known creator can use a crowdfunding platform to support work is the writer Cory Doctorow, the first person to be interviewed on Walled Culture. In 2020, when Doctorow’s publisher could not afford to pay for an audio version of his latest book, he asked his fans to fund it. Within a month, he raised $267,613.

Not everyone commands the level of support that Doctorow has garnered, but this example does at least indicate the potential of the true fans approach as an alternative to today’s copyright. The scale of this fan-based patronage ecosystem is under-appreciated. According to one research report, crowdfunding was valued at $17 billion in 2021. By 2028, the global crowdfunding market is projected to grow to $43 billion, with an average compound growth rate of 16.5% over the forecast period. Not all of that will go to creators, but many billions certainly will, which will put it on a par with payments made by traditional intermediaries such as publishers, film studios and music labels.

An interesting aspect of the true fans approach is that it although it is fully compatible with copyright, it does not require it to work. Crowdfunding aims to fund future production, by supporting artists as they create. After a work is finished and released, it is not necessary to invoke copyright law to punish unauthorized copies, since the artist has already been rewarded. Indeed, there is an important advantage in encouraging copies to be shared widely: it allows an artist’s work to be discovered by more people around the world, some of whom will go on to become true fans and to contribute money towards future work. Even mis-attributed copies can ultimately lead fans to the original source, bolstering an artist’s reputation and – potentially – finances.

This form of crowdfunding would eliminate one of the biggest problems with copyright today: the need to stop people making unauthorised copies of digital material under copyright. Every attempt to achieve that over the last twenty-five years has failed – whether through huge fines, threats of Internet disconnection or, most recently, by requiring upload filters, as the book Walled Culture explores in detail (free ebook versions available). These efforts are futile because we live in a digital world where billions of people have a cheap copying machine in their pocket: a smartphone. They use it routinely hundreds of times a day to make perfect copies, which they send out over the Internet to family and friends, who make further copies, and pass them on. Trying to prevent this sharing means fighting against both technology and human nature – a lost cause, as history shows.

A wider use of crowdfunding and the true fans approach could help address the poor rewards that the vast majority of creators receive under today’s business models relying on copyright. It might also see the importance of copyright diminish to the point that it is no longer regarded as indispensable, or requiring yet more ineffectual laws in a doomed attempt to enforce it online.

Featured image created with Stable Diffusion.

Follow me @glynmoody on Mastodon or Twitter

Cookie Consent with Real Cookie Banner