Is Copyright Working Well for the Copyright “Middle Class”?

Is copyright a good thing or is copyright just in the way? Ok, I’m a copyright lawyer so you might be able to guess what I’ll say.

Thanks to changing and less-protective copyright laws and the Internet, there is so much more content available than ever. But it’s tough for copyright creators to be in the middle of the economic changes – and to make money.

The effect of the Internet on content owners really can’t be overstated. In Jaron Lanier’s new book, Who Owns the Future, he builds upon his earlier writings to suggest that the Internet is fundamentally restructuring our social and economic base. It’s half of a great book, because after an insightful, even brilliant, analysis of how the Internet is reshaping the media and our economy, he proposes a kind of solution that is palpably unworkable to restore the “middle class,” namely a kind of “central regulator” to monetize digital behavior. An “A” for effort, though.

For example, Lanier compares the number of employees that Kodak had in its heyday and how few, say, Instagram hired. You get the picture. The Internet promotes efficiency, as does technology generally. Robotics, to name just one example. The Google driverless car, to name a second. It can be tough being a human when looking for a job.

Copyright used to be enforced mostly because it was so hard and expensive to copy in mass quantities and distribute. Obviously, the Internet has made worldwide, inexpensive, and super-efficient copying and distribution (authorized and unauthorized) possible. With infringement much more pervasive, the money to be derived from exploitation of copyrighted works is harder to find. That’s not exactly news.

Music is, of course, the poster child for the effect of these changes in copyright and technology. As has been well documented, the “middle-class” of musicians who can support themselves via their music, has substantially diminished. TV and motion pictures are seeing the same effect. Author/lawyer Scott Turow and others have pointed to the “erosion” of copyright arising from weakened copyright laws affecting importation and piracy. Technologies such as Aereo (whose legality is so far been upheld by courts in early proceedings, with more litigation to follow) enable companies and ordinary users like us to bypass the control that copyright owners and their distributors used to enjoy. The federal courts continue to find ways to enhance the “fair use” defense under which reusers can reproduce copyrighted works without obtaining permission and without paying a fee.

Without strong copyright, the copyright-reliant media simply have to change. There is no other choice. Copyright businesspeople and copyright academics can fight over policy, but that’s the real world impact.

What does this mean for media businesses? With nimbleness prized, the copyright middle-class of infrastructure players such as production houses, musicians, sound engineers, film editors, independent producers, etc. are looking at a long-term future of very tight margins and much competition even from the people formerly known as consumers who now play in the professional sandboxes.

Where are we headed in terms of the copyright economy? If content is still king, and it is, there will be fewer kings among the millions of content creators. Copyright and media industry/economics, will increasingly see a rarefied successful upper class that still does very well in all media. There will also be a vast mass of smaller companies and individual creators who will sustain themselves with “regular” non-media jobs and be satisfied with impact from their work.

But short-term thinkers are being unnecessarily gloomy. While those in the middle truly are a bit stuck today, with platforms like YouTube and Spotify often being perceived as paying too little to support content providers. But this time is merely a transition while a reshuffling of the media ecosystem is taking place. With adjustments to the copyright law so that social media platforms and ISPs pay a fair share of revenue in addition to ensuring payments are made to creators we can incentivize creativity and rebuild the middle class of copyright.

In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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