Content Protection and Copyright
Amid the information explosion brought on by digital technology, some important, content industry business models are failing. Indeed, we are in the midst of what may be a failure of some of business models of content industries such the traditional newspaper industry; significant economic stress is also being placed on other content-oriented industries.
It is fair to say that, while the user generated content machines (such as YouTube) thrive, many commercial content producers are struggling. Clearly, the user-generated content sites document that if one gives content or the ability to distribute it away free, there will be takers and the site may become immensely profitable. But – what if a content owner desires to charge for content? Are current laws and business practices adequate to support that choice?
Should we care? Yes.
While valuable works are produced by individuals not seeking to commercialize their work, other important information projects only occur where substantial financial support or commercial benefits exist or can be realistically sought. Intellectual property law must support both and the range of options in between, but it is too often easy to ignore one of these models in policy discussions.
Some of the economic stress of the content industries is attributable to the inevitable adjustments caused by new technology and social expectations. Thus, a business model that assumes that a content producer or publisher can charge high prices for copies faces the likelihood of greater seepage (piracy) in a digital world than in a plastic world. But while many in the public are comfortable copying commercial content created by others, most do not do so without authorization. One role of law and its enforcement, of course, is to shape and influence expectations about complying with the norms set out in law. The business model may remain viable if relatively effective technology controls become acceptable in modern markets or if social expectations change to reduce or cabin in piracy at a level that is sustainable and whose costs are covered by sale or license fees generally. But the greater digital seepage means that the economics and scale have changed; this heightens, rather than reduces, the need for and the character of supportive laws for the content producer.
Unless properly adapted, modern copyright and related law may not support content industries even remotely of the scope and depth of those that historically have existed.
It may seem odd to be discussing a risk of failure in content industries at a time when the Internet created a huge upsurge in the amount of information available. But the reason lies in large part in the provenance and character of information. A difference exists between content generated and published without review by individuals, and content generated by concerted research or creative effort of financed groups of professionals. The motion picture “Wizard of Oz” may not be perfect, but the quality of that product differs from the video on YouTube by Joe Smith who filmed himself eating pizza. Many studio products, of course, are not well done, while many individual products are excellent, but one does not have to denigrate the work by Joe Smith to recognize that society is the loser if his content becomes the sole entertainment content available. If these types of content reside on a continuum, however, the problems of law sustaining the content development reside closer to the “Wizard of Oz”, while the explosion of information on the Internet lies closer to the Joe Smith video. Law should provide a basis that promises to sustain both the commercialization model and a model in which the content developer gives her product freely to the public. It is with reference to professional or commercial content that the incentive structure of traditional intellectual property law has its greatest bite, and it is here that the Internet and other digital systems have their most potentially disruptive impact.
The floundering newspaper industry is an urgent and important example of the commercial problem. Judge Posner correctly suggests that a risk of the demise of the newspaper industry creates a significant social policy issue since it would reduce the amount of professionally investigated and vetted information available to the public. It would also reduce the extent to which third parties monitor and report on public and business conduct. Of course, not all newspapers do significant research or plausible analysis, but for those that do the research and editorial staffs supported by news organizations add value to the information. They require financial support and one source is by selling content or access to it. Posner suggests that law might be expanded to cover a right to prevent appropriation of factual content from the news sources. The suggestion drew predictable skepticism and questions about how one distinguishes among newspapers and content providers such as Joe Smith. But it underscores the potential relationship between law and the sustainability of at least some information content models.
We are where we are today in terms of intellectual property policy and its impact on the content industries in part because of an on-going conflict between groups that, respectively, seek enhancement or protection of property rights, and those who would prefer a diminishing role for intellectual property (especially for copyright) in digital environments. One theme frequently cited by the latter group argues that “information wants to be free” and that to the extent that commercial incentives or profit online are desired, they should be sought in ancillary ways, such as through advertising revenue, while the information itself is made freely available. The difficulty is that this business model has largely been a failure and those who have been able to follow it tend to be content “aggregators” or providers of other services, not content creators or publishers. They survive and thrive, rightly or wrongly, by collating the work of others (often obtained for free). But in a world of limited or no profit for newspapers or other content-providers, who will be left to create that content?
As Tom Rubin commented regarding newspaper media:
Starting back in the early 1990s, some leading Internet pundits espoused the motto “information wants to be free” and implored content owners to simply give away their content and monetize it through secondary means – such as concerts and tee-shirts for musicians and, in the case of media, … by adopting a business model consisting of free and liberal distribution plus online advertising. And that’s exactly what most newspapers did…. [But the] evidence is in, and I think we can safely say that the “information wants to be free” approach not only does not work, actually it has been a disaster for almost all newspapers. Yet even today, despite being confronted with mountains of evidence of failure, some Internet leaders continue to propose the very same prescription for the future of newspapers…. But for the media at least, the verdict is in and the time has come to reject these claims once and for all.
There are, of course, many other issues regarding the impact of digital technologies on content creators and providers. But the basic issue in reference to law and legal policy involves a need to develop a balance in intellectual property law that preserves what we have and what, for the United States, is one of our few thriving industries – industries that produce and commercially distribute informational content – and that supports realistic business models for those industries. To do so requires a shoring up of property law and judicial interpretations of existing law that support, rather than a continued erosion of the position of content developers and providers. In doing this, the interests of individuals and companies who create content they do not desire to commercialize also need to be protected, but this does not support widespread, substantial copying of the work of others or relying on that work to develop a commercial enterprise profitable for the aggregator or other commercial entity.
