Category Archives: Intellectual Property Rights

More on Music Streaming

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A coda to my recent post on music streaming:

Despite the growth in Spotify‘s subscribers (and an apparent shift from free to paid-for services), it seams that the company still managed to make a loss. Over-paying for high-profile projects can’t have helped the balance sheet either….

Why is it so hard for Spotify to make money? In part, it’s because streaming has decimated the price point for content. This price erosion began with downloads, and has accelerated with streaming – premium subscribers don’t bother to think about how little they are paying for each time they stream a song, they have just got used to paying comparatively little for their music, wherever and whenever they want it. So they are not even having to leave their screen or device to consume content – whereas, in the past, fixed weekly budgets and the need to visit a bricks and mortar shop meant record buyers were probably more discerning about their choices.

Paradoxically, the reduced cost of music production (thanks to cheaper recording and distribution technology) means there is more music being released than ever before. But there is a built-in expectation that the consumer price must also come down – and of course, with so much available content, there has to be a law of diminishing returns – both in terms of quality, and the amount of new content subscribers can listen to. (It would be interesting to know how many different songs or artists the average Spotify subscriber streams.)

While some artists continue to be financially successful in the streaming age (albeit backed up by concert revenue and merchandising sales), it means there is an awfully long tail of content that is rarely or never heard. Even Spotify has to manage and shift that inventory somehow, so that means marketing budgets and customer acquisition costs have to grow accordingly (even though some of the promotion expenses can be offloaded on to artists and their labels).

Not only is streaming eroding content price points, in some cases, it is also at risk of eroding copyright. Recently it was disclosed that Twitter (now X) is being sued by music companies for breach of copyright.

You may recall that just over 10 years ago, a service called Twitter Music was launched with much anticipation (if not much fanfare…). Interestingly, part of the idea was that Twitter Music users could “integrate” their Spotify, iTunes or Rdio (who…?) accounts. It was also seen as a way for artists to engage more directly with their audience, and enable fans to discover new music. Less than a year later, Twitter pulled the plug.

One conclusion from all of this is that often, even successful tech companies don’t really understand content. The classic case study in this area is probably Microsoft and Encarta, but you could include Kodak and KODAKOne – by contrast, I would cite News Corp and MySpace (successful content business fails to understand tech). I suppose Netflix (which started as a mail-order DVD rental business) is an example of a tech business (it gained patents for its early subscription tech) that has managed to get content creation right – and its recent drive to shut down password sharing looks like it is paying dividends.

Of all its contemporaries, Apple is probably the most vertically integrated tech and content company – it manufactures the platform devices, manages streaming services, and even produces film and TV content (but not yet music?). In this context, I would say Google is a close second (devices, streaming, dominates on-line advertising, but does not produce original content), with Amazon someway behind (although it has had a patchy experience with devices, it has a reasonable handle on streaming and content creation).

All of which makes it somewhat surprising that Spotify is running at a loss?

Next week: Digital Identity – Wallets are the key?

 

 

Music streaming is so passé…

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Streaming services have changed the way we listen to music, and not just in the way the content is delivered (primarily via mobile devices), or the sheer number of songs available for our listening pleasure (whole catalogues at our fingertips).

These streaming platforms (which have been with us for more then 15 years) have also led to some more negative consequences: the deconstruction of albums into individual tracks (thereby undermining artists’ intention to present their work as a whole, rather than its component parts); shifting the relationship we have with our music collections from “ownership” to “renting”; paying paltry levels of streaming fees compared to royalties on physical sales and downloads; pushing suggested content via opaque algorithms and “recommender engines” rather than allowing listener self-discovery; squashing music into highly compressed audio formats, thus impairing the listening quality; and reducing album cover art work and design into tiny thumbnail images that don’t do justice to the original. (If you can’t appreciate the significance and importance of album art work, this forthcoming documentary may change your mind.)

Of course, streaming is not the only way to consume music – we still have vinyl, CDs and even cassettes in current production. (And let’s not forget radio!) Although optimistic numbers about the vinyl revival of recent years have to be put in the context of the streaming behemoths, there is no doubt that this antique format still has an important role to play, for new releases, the box-set and reissue industry, and the second-hand market.

For myself, I’ve largely given up on Spotify and Apple Music: with the former, I don’t think there is enough transparency on streaming fees (especially those paid to independent artists and for self-released recordings) or how more popular artists and their labels can pay to manipulate the algorithms, plus the “recommendations” are often out of kilter with my listening preferences; with the latter, geo-blocking often means music I am looking for is not available in Australia. (As I am writing, Spotify is playing a track which has been given the wrong title, proving that their curation and editorial quality is not perfect.)

Streaming can also be said to be responsible for a type of content narrowcasting – the more often a song is streamed (especially one that has been sponsored or heavily promoted by a record label) the more often it will appear in suggested playlists. Some recent analysis by Rob Abelow suggests that fewer than 10% of songs on the Spotify billion stream club were released before 2000. This may have something to do with listener demographics (e.g., digital natives), but it also suggests that songs only available as streams (i.e., no download or physical release), or songs heavily marketed by labels wanting to promote particular content to a specific audience, will come to dominate these platforms.

Further evidence of how streaming is skewed towards major artists is a recent post by Damon Krukowski, showing how independent musicians like him are being “encouraged” to be more like megstars such as Ed Sheeran. Never mind the quality of the music, just think about the “pre-saves” and “countdown pages” (tools which are not yet available to every artist on Spotify?).

I’ve been using both Bandcamp and Soundcloud for more than 10 years, to release my own music and to discover new content. I began with Soundcloud, but soon lost my enthusiasm because they kept changing their business model, and they enabled more popular artists to dominate the platform with “premium” services and pay-to-play fees that favour artists and labels with bigger marketing budgets. Whereas Bandcamp appears to be doing a better job of maintaining a more level playing field in regard to artist access, and a more natural way for fans to connect with artists they already know, and to discover new music they may be interested in.

But all of this simply means that streaming has possibly peaked, at least as an emerging format. The industry is facing a number of challenges. Quite apart from ongoing disputes about royalty payments and album integrity, streaming is going to be disrupted by new technologies and business models, thanks to blockchain, cryptocurrencies and non-fungible tokens. These startups are going to improve how artists are remunerated for their work, create better engagement between creators and their audiences, and provide for more transparent content discovery and recommendations. Elsewhere, the European Union is considering ways to preserve cultural diversity, promote economic sustainability within the music industry, remove the harmful effects of payola, make better use of content metadata for things like copyright, creativity and attribution, and provide clear labeling on content that has been created using tools like AI.

Just for the record, I’m not a huge fan of content quotas (a possible outcome from the EU proposals), but I would prefer to see better ways to discover new music, via broadcast and online media, which are not dependent on regimented Top 40 playlists, the restrictive formats of ubiquitous TV talent shows, or record label marketing budgets. Australia’s Radio National used to have a great platform for new and alternative music, called Sound Quality, but that came off air nearly 10 years ago, with nothing to replace it. Elsewhere, I tune into BBC Radio 6 Music’s Freak Zone – not all of it is new music, but there is more variety in each 2 hour programme than a week’s listening on most other radio stations.

Next week: More Cold War Nostalgia

 

AI vs IP

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Can Artificial Intelligence software claim copyright in any work that was created using their algorithms?

The short answer is “no”, since only humans can establish copyright in original creative works. Copyright can be assigned to a company or trust, or it can be created under various forms of creative commons, but there still needs to be a human author behind the copyright material. While copyright may lapse over time, it then becomes part of the public domain.

However, the extent to which a human author can claim copyright in a work that has been created with the help of AI is now being challenged. A recent case in the USA has determined that the author of a graphic novel, which included images created using Midjouney, cannot claim copyright in those images. While it was accepted that the author devised the text and other prompts that the software used as the generative inputs, the output images themselves could not be the subject of copyright protection – meaning they are either in the public domain, or they fall under some category of creative commons? This case also indicates that, in the USA at least, failing to declare the use of AI tools in a work when applying for copyright registration may result in a rejected application.

Does this decision mean that the people who write AI programmes could claim copyright in works created using their software? Probably not – as this would imply that Microsoft could establish copyright in every novel written using Word, especially its grammar and spelling tools.

On the other hand, programmers and software developers who use copyright material to train their models may need to obtain relevant permission from the copyright holders (as would anyone using the AI tools and who uses copyright content as prompts), unless they could claim exemptions under “fair dealing” or “fair use” provisions.

We’re still early in the lengthy process whereby copyright and other intellectual property laws are tested and re-calibrated in the wake of AI. Maybe the outcomes of future copyright cases will depend on whether you are Ed Sheeran or Robin Thicke….

Next week: Customer Experience vs Process Design

 

Literary legacies

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As more classic works of literature come out of copyright protection, and enter the public domain, publishers and booksellers can look forward to sales of re-packaged titles, for which they won’t have to pay royalties. With the right combination of content and marketing, it’s as good as free money.

Under the Berne Convention, copyright in published works is the life of the author plus 50 years, although many territories have extend this to life plus 70 years (100 in Mexico!). These periods may be subject to extensions if the executors of literary estates are able to renew the existing copyright (under previous copyright regimes) or by issuing revised editions of existing works which are sufficiently different to the original so as to constitute an entirely separate publication – but these are exceptions.

By allowing copyright to lapse, this should mean key works will always be in print, and even more obscure titles can be revived with little to no production cost. For nearly 20 years, Google Books has been scanning works out of copyright and putting them online. But even this process can run into copyright limitations, and questions of provenance (as illustrated by the treatment of George Orwell’s “1984”). But this has also encouraged some enterprising individuals to sell “reprints” of facsimile copies of scanned titles, when the buyer thought they were purchasing an authentic copy, or a contemporary edition (i.e., newly typeset and printed).

Intellectual property law may be complex, and in need of reform to reflect modern technology and contemporary society. But as copyright works pass into the public domain, there remains the issue of moral rights. These give writers the right to be identified as the author of a work (“attribution”), and to protect their work against inappropriate use (“derogatory treatment”). Moral rights also protect writers against “false attribution” – i.e., a publisher can’t claim a work was written by an author who didn’t actually write it.

Moral rights vary from country to country (e.g., Germany, UK, USA, Australia), but generally do not survive when copyright expires. Which can mean that unscrupulous publishers may feel emboldened to “modify” original texts at will, given some recent examples of key 20th century novels. Surely not what authors and their legacies should be subject to?

Next week: Public Indifference?