I teach a course in Georgetown University‘s Communications, Culture and Technology graduate school called “Creative Industries: Reinvention Amidst Disruption.” In the interest of preserving my opening lectures leading into discussion, I will be posting transcripts here. The following is from the first class on August 28, 2014.
Our general topic today is the music industry. From the syllabus:
The music industry took the hit first and is in the throes of a decade-plus remaking; disintermediation has also reshaped other creative industries as traditional business are models upended and a host of technologies—established and emerging—vie for primacy in the new paradigm. Film, television, and even gaming are posed for further disruption. This section will explore how the creative industries have responded to the digital shift and what this adaptation—if any—has means for today and tomorrow’s practitioners.
Here’s a simple way of looking at things when we’re talking about the intersection of intellectual property and technology. There have two basic choices with any given use of intellectual property: block/deny or license. Each choice comes with a submenu of options, and that’s where things can get sticky. With “block/deny,” it’s a question of which regulations and technologies can be applied to allow owners/creators to exercise their rights, along with which exceptions/limitations to those rights best serve the public interest (and let’s not forget the fact that authors and the public are the express beneficiaries of this constitutionally established system).
Option II, “license,” is what establishes the marketplace for content and innovation. The questions here are about efficiency, investment and equity. My day job is making sure that the needs of creators are considered within these structures. Let me be perfectly clear: it’s rarely black and white. There are compromises and tradeoffs within both buckets. It should be the goal of advocates and policymakers alike to ensure that any systems—regulatory or marketplace—serve the fundamental interests laid out in Article I, Section 8, Clause 8 of the United States Constitution, aka the “progress clause,” which is:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
I don’t see anything in there about the rights of big media or technology companies, although these entities certainly can both play a useful role in terms of up-front investment of creativity, distribution, marketing and infrastructure. Unfortunately, some of the bigger players want artists to think that as long as you have benevolent media companies that pay royalties or if you’ve got basic access to audiences on a platform, than all the problems are solved. This leaves an awful lot out.
When we look at the response to the advent of file-sharing and Internet technology in general, we see that by and large, the music industry was unable to anticipate or take advantage of the disruption. Had they been able to respond in a more flexible way with regard to licensing their content, we might be living in a different world today (although it’s hard to say for certain, given pre-internet trends towards corporate consolidation). Ultimately, the fight about copyright enforcement that started with Napster took up so much time that it forestalled progress around new ways to license music and other media.
To me, Licensing and enforcement should go together like hand in glove. But it’s hard to put on a glove if you’re making a fist.
Today there is tremendous consolidation among major music labels and other content owners, which ties into another another looming issue: the paid prioritization of content delivered over the Internet. This is at the heart of what’s known as the “net neutrality” debate. We talked about that next week, and we’ll be taking a closer look later in the semester. But right now the important thing to remember is that many of the same players that sought aggressive copyright enforcement through litigation and legislation are now hoping to maintain their dominance through leverage of existing laws along with faster online delivery of their content over the competition. And that competition can be an independent content company, a new digital service, a political website or an individual creator trying to reach audiences on the Internet.
This is not meant as an indictment of corporations. There are instances where the pre-Internet system worked for creators, particularly in terms of the kind of up-front investment that allowed an artist to focus on their work, as opposed to being the biggest Twitter personality. Likewise, I don’t totally fault the technology sector for where we ended up. There may very well be a “cult of disruption” and deregulatory emphasis within Silicon Valley and venture capital culture, but there are also a lot of people who simply want to build exciting and useful stuff. It may be that some of the biggest companies in tech haven’t contributed directly to the creation of content, but that may be changing. YouTube is trying to compete against television, so they’re investing more heavily in channels and creators. Amazon and Netflix are developing original series. Music is an essential layer of pretty much all of this. So I think it’s likely that we’ll see more direct investment from the tech sector in creative content. The question is under what conditions.
All of this is increasingly connected, whether its intellectual property law or marketplace trends or Internet policy. Right now, there’s an examination of copyright laws happening in Congress and the federal agencies. There’s also ongoing regulatory developments in telecommunications that will affect who gets to access audiences and at what cost. Then there are the larger issues of competition policy and whether the spate of mega-mergers we’ve seen in the past decade-plus will continue. All of this affects the creative industries, and all of it impacts how creators will make a living in years to come.
When we read Astra Taylor’s book, which is ultimately a structural critique through a labor lens, we see that the story is more complicated than some might have you believe. You might ask, “well, how come there’s nobody lobbying for the artists?” I would answer, “there’s no money in it.” You do have unions doing some good work for creators, but a lot of their focus is contract negotiations with media companies as representatives of a labor class. There is some federal policy focus, but that’s not a main emphasis. In the music industry, you’ve got a mix of trade associations that represent traditional industry players, like record labels and music publishers, along with groups like the Recording Academy (aka the folks who put on the Grammy Awards). The Recording Academy does a lot of great work at the member level, particularly in education, and they also operate a health care program for musicians called MusicCares. However, their governance also includes some of the big music companies that have historically not always treated the artists fairly. So when it comes to legislation or federal policy, you end up with the same kind of content vs. technology dichotomy that has frustrated the creative industries for more than a decade.
I find Astra’s book significant in its attempt to reframe the debate. As I mentioned last week, there’s an emerging market for scoldy books about the Internet, just like there was previously a market—probably mostly tapped out at this point—for digital utopianism. What Astra’s is pointing out is that we do a disservice to both the promise of networked technology and those who innovate and create if the discussion remains bipolar.
I want to open things up for discussion about what we’re encountering thus far in her critique. Here are a few points to consider.
On tech platforms and Internet economy, generally: “These platforms succeed because of an almost unfathomable economy of scale; each brings revenue from targeted advertising and fodder for data miners.”
-Will advertising become the dominant economic incentive on the Internet, and what does that mean for investment in creative content? Privacy? Revenue distribution?
On “free” content generation: “The connections between people are not uniformly reciprocal… Networks allow for co-optation as much as cooperation.”
-What does “playbor” mean for competition and the valuation of creative content?
On efficiency and value of creative production: “…the arts suffer from a ‘productivity lag,’ where productivity is defined as physical output per work hour.”
On corporate expectations re: growth: “…the increase of shareholder influence in the corporate sector accelerated the demand for higher returns on investment and shorter turnaround.”
-Is it possible to balance the interests of growing the economy with the virtuous inefficiencies common to intellectual and creative labor? If so, how?
On cost-cutting at the expense of quality (journalism): “So far, media owners have shown every sign of grasping electronic delivery as yet another chance to cut costs and increase revenue without putting anything back into journalism.”
-Where else is this dynamic observable? What are some alternatives to cultural production and investment?