Copy and distribute

Battle lines are drawn, or so it seems, with a gulf opening up between creators and consumers on the future of copyright. No one can deny the extent to which the web has disrupted business models based on copyright. Legislation needs review it may well get it, but I fear that the gulf will be too great to generate a healthy and sustainable result. At its core are arguments between producers and upholders of copyright, and the new digital advocates for consumers and creators who see copyright as a barrier to innovations and creativity. I won’t make claim to any answers, but a few points come up again and again. This post doesn’t advance a comprehensive argument; it notes a few thoughts I have on the issues. They may be misguided or not well-enough informed. Comments are very welcome.

Assume these things

Creators have a right to make a living. We all need to acknowledge that.

Creators currently rely on producers. That may or may not change, depending on the creator. Some will be capable of producing a polished and desirable product that consumers want. Others will still require and benefit hugely from the services or professional editors, designers, and other production staff.

Producers needs to make a living too. They add value and need recompense for that effort and added value.

Innovation and creativity relies on sampling and re-using existing material. We stand on the shoulder of giants and all that comes before us. Fair use generally makes that possible and fundamentally copyright holders don’t get in the way of legitimate creativity and new works.

Some jurisdictions are going too far in new copyright protections. Think Disney and Mickey Mouse, Happy Birthday, and the like. It’s creating a barrier to creativity based on those common items of popular culture.

Distribution rights may be based on copyrights but they’re not the same thing.

If it’s broke, fix it

Where consumers bemoan not being able to buy Game of Thrones in New Zealand as soon as it screens in the US, that’s not about copyright; it’s about distribution. More than that, it’s about producers not responding to global demand and instead trying to maximize profits on a territory basis.

Conversely, producers who use the moral argument of protecting creators through copyright to justify maintaining the current territory based distribution right model are just not facing up to a broken business model that the web will not allow to survive.

When producers cry foul about copyright infringement, whose rights are they most concerned about? Often the argument is made on behalf of creators (think of the poor starving writer), when in fact producers have already captured the commercial rights of individual works. For a particular piece of work, producers can only really be concerned about their commercial rights in the product, short of the typically small sum passed onto creators by way of royalties.

But there’s a systemic justification: if the producer makes money off one product they can invest in subsequent products, which may in turn support creators and foster further creativity. Undermine the ability for producers to add value and derive an income destabilizes that system.

Where it gets interesting is in, for example, the recently announced withdrawal of the editorial offices of the likes of publishers Hachette and Pearson from New Zealand. As noted here, copyright and (what I think is a broken distribution system based on unenforceable) territorial rights played a part in Hachette’s departure. (As an aside I’d also argue against GST full stop, but that’s a different post.)

The irony here is that part of the problem is parallel importing – the practice where something can be imported into a territory (say, New Zealand) by someone despite someone else owning the right to distribute that product in that territory. But that parallel importing is being made possible by the multinational owners of the local publisher. The multinational is in effect putting its own subsidiary out of business.

That aside, and whatever the reason for multinationals closing their local offices, it means there are now fewer publishing channels available for New Zealand writers, particularly those wanting an entree to an international market via multinational publishers. It breaks part of the system that supports local writers.

That’s a very real problem that producers are struggling with; others need to help, and creators need to understand how serious a problem it is. Undermining copyright won’t address that problem; nor will extending or enhancing it. Perhaps we need to forget copyright and focus on finding a new business model that doesn’t rely on territory based distribution but still creates enough wealth to support creators and producers is the critical issue.

  1. Hey Matthew

    I thought I’d jot down a few thoughts in response to your useful thoughts above and here they are

    1. Applaud you for setting out what we agree on about copyright. The COPYRIGHT PRINCIPLES PROJECT in US is attempt to do that and I think it’s brilliant. I’m sick of scrapping with copyleft lunatics. With good, smart people aiming to get us somewhere good and smart, there is plenty we in fact share.

    2. But in doing so it’d be good not to preface the argument with assumptions like this: “No one can deny the extent to which the web has disrupted business models based on copyright.” Come to Yale Publishing Course. Publishing never more profitable; survived fiscal crisis and rise of lower-priced e-books with revenue 1-3% growthPA and profitability up; web a boon to STM/Journal publishing of course, etc. Web vs. Copyright idea is lazy thinking that, even after being repeated a million times, remains untrue for book publishing at least.

    3. Copyright owners like me are the biggest users of fair use/fair dealing in the land and push it regularly to its legal limits–for quotes, images in books, etc etc. We love copyright exceptions that are fair and reasonable. Copyright holders don’t just ‘not get in the way’ of new creativity based on old works, it’s the business we’re engaged in every day.

    4. Territorial distribution rights broken with web. This I just don’t get. In fact, they have become much easier to enforce with digital distribution. And territorial rights–the stuff of Frankfurt–allow all the good stuff to happen–local champion publishers finding more readers for books because they know the local audience; they know the right price (different in India from the US), the right cover, the right reviewers, the right media. Without them, books find fewer readers. Kirtsaeng impact will show that. Hope you’ll be out there cheering for some principle, as students on the Indian subcontinent lose their access to reasonably priced educational content.

    5. ‘when in fact producers have already captured the commercial rights of individual works.’ The last contract I signed with an author didn’t look like a ‘capture’. I didn’t wear a pirate hat or carry a sword. Instead, we agreed on what seemed to them and me a fair split–I’ll pay all the printer bills, copyeditors, distributors, publicists and give you some money up front to writ the book, I’ll haul in the revenue, and then how will we split up what’s left? To suggest that ‘producers’ have ripped off all the content from the lovely ‘creators’, that the former loves copyright and the latter couldn’t care less, is an insult to all the great authors I’ve every worked with in 15 years in the business. They’re tough, we create great books together, they don’t want their content ripped off, and we agree together on who gets what out of revenue.

    I could go on Matthew. There must be more good points in your missive. But it is 12.10am in NYC and I am now retiring. Happy to engage further.

    All best
    Sam

    • Thank you, Sam, for the thoughtful reply. As we’ve agreed on Twitter, it’s an area that needs more genuine debate and perhaps will get. Oddly, I left off the final paragraph in the original post, but it may not make much difference.

      I do still wonder what the right response is to the many thousands who download (ok, pirate) shows like Game of Thrones when they might well pay for it if they could. It’s possibly a trite or too often used example, but still relevant. Why not sell people what they want, when and where they want it, rather than hold to distribution deals that don’t work for them? Add to that local retailers’ concern over GST-free internet retail, which extends to local book sellers and stretches into parallel importing, and I find it hard to believe that in the long term distribution won’t be disrupted in some way.

      Oh, to return to the point about copyright not getting in the way, that’s exactly the point: it doesn’t. I get the feeling from some quarters that there’s a belief that if we could just get rid of copyright we’d see a huge flowering of creativity and innovation that’s currently being stymied. It’s a false argument against copyright, which in the main isn’t getting in the way. (And I read a post recently that in fact gloried in restrictions – be they rights, financial, etc – for the fact that it forces creators to think more laterally and be genuinely creative.)

      So let’s hope there is a chance for meaningful debate on this issue. Good to see some of it happening here.

      Cheers
      Matthew

  2. I think your last paragraph is spot on.

    I wouldn’t go as far as saying copyright isn’t a/the problem.

    But territorial distribution rights are definitely an issue. If consumers can’t get what they want and when they want it, they turn to piracy, or go without. Either way that’s lost sales.

    I think the claim that territorial distribution rights “allow all the good stuff to happen” is flawed although I’d be happy to look at any evidence. But I suspect even if it ever was (or still is) the case, they’re on their way out. From the consumers’ end, they are pointless, outdated, and irrelevant.

    The justification seems to be financial (although disguised as, “we can create more content this way, trust us”). Territorial rights are going, it’s inevitable. Whether the change will be legal or just cultural, I don’t think it matters – society decides what it wants and the market responds, eventually. The consumers have the power here, not publishers.

    Teenagers today already think it’s nonsense to have to wait six months (or even a day) before they can watch something from the USA. What’s the situation going to be in 20 years time?

    Books find *fewer* readers without territorial limitations? Is that sarcasm?

  3. Ooh couple more points –

    Sam I entirely agree with your point (5).

    Re fair use – NZ only has “fair dealing” which is more restrictive than the US fair use exception. Probably doesn’t affect a lot, there’s not a lot of litigation here in NZ about its interpretation. But I think the fact that different countries have different exceptions and thresholds for infringement is an issue. I’m not sure how it can be addressed given the divides that are already appearing between different countries on copyright issues.

  4. Hey Matthew. One thing that I haven’t noticed being talked about in many conversations about copyright is the moral rights of the creator; the right to prevent other people from using their creations in ways that they disagree with. This aspect of copyright is less about money and compensation, and more about the capacity to control and choose if and how your work is utilised by other people. Where does this fit within a renegotiated idea of copyright/distribution?

    (PS – copyright is well beyond my own area of expertise, so it’s highly possible that this is often discussed and I’ve just not been part of those discussions.)

    • Hi Suse, ah yeah, well, my knowledge of moral rights is even shakier than my copyright understanding but I’m pretty sure they exist separate to copyright, if at all. Some jurisdictions recognise them others don’t; others only if the creator asserts them.

      I’m not sure it quite allows any control over if and how a work is used by other people, more to do attribution and integrity of the work.

      In my rose-coloured worldview, attribution thwarts mis-use on the naive assumption that someone re-using a work will credit the creator. People then viewing the modified usage can trace it back to its source and decide for themselves whether it’s been mis-used or mis-interpreted.

      I don’t think my trust is that unfounded. The fear stems I think from a few bad apples, and isn’t typical or widespread. Most people are good at heart and use things respectfully. (It’s very similar to the fears in the cultural memory sector around releasing collection materials for digital re-use – most re-use will be positive.)

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