Sustainability in context: Commercially-owned cultural content

14 Sep

Draft 0.1

The Blue Ribbon Task Force looked at four different sustainability contexts: Scholarly discourse, Research Data, Commercially-owned cultural content, and Collectively produced web content. We thought it worth revisiting those contexts in the light of our developing reference model. The first of these is commercially-owned content.

This term addresses most of what we think of as traditional cultural content, updated for the modern era. Books, Magazines, Movies, recorded music, broadcasts are all obvious areas affected by the digital revolution. Fine art, theatre, dance and similar areas are probably less affected; the visceral, real life experience remains important in those areas. It is already clear that traditional business models for recorded music and movies are affected by the move to the Internet, and the reaction by the rights-owners has been damaging to those who need to curate and preserve this material.

The analysis will address 7 important questions:

  • Who benefits from use?
  • Who selects what is kept?
  • Who owns the resource?
  • Who preserves (or manages) the resource?
  • Who pays?
  • What are key attributes specific to this context?
  • What are the key risks?

Note: this is an extremely broad area, and this analysis must perforce be somewhat superficial. There is a great opportunity for further study here.

We welcome comments on this approach. Is this a sufficient set of questions to consider sustainability in particular (general) contexts? Are there major issues that have been forgotten in this scenario (bearing in mind that it is always a generalisation)?

Who benefits from commercially-owned cultural content?

The first and obvious answer is that we, the public, benefit from this material. It is part of our life and our society would be the poorer without it. This content is (or becomes) our “digital cultural heritage”.

However, more to the point of this question, the rights owners (in the scenario, commercial rights owners) aim to benefit from the exploitation (use) of the content. This benefit lasts for the economic life of the content (almost a tautology), limited as that theoretically is by the term of IP rights such as copyright.

In the past the economic life was often comparatively short for much material (eg magazines in paper form). The copyright might last for another hundred years or so, but rights owners effectively had one shot at revenue, when the issue hit the news-stands. A small amount might be made from back issues, but there was essentially no continuing revenue. Today, the economic life of content is growing ever longer, with new possibilities for re-purposing, re-mixing and re-releasing content.

In reality of course, there has always been a form of re-purposing, re-mixing and re-releasing going on in the cultural heritage area. Authors, artists, musicians take today’s content and turn it into new content, sometimes transformed beyond all recognition. The nature of these opportunities has changed, not the general principle.

It does not seem right to end this section without reference to those who don’t pay. Whatever the rights or wrongs, this cultural heritage content has moved from analogue content (for which most copyright laws were designed) to the digital world, where perfect copies can trivially be made; where I can have a copy without taking yours. Digital content is, in economists’ terms “non-rival in consumption”. Copyright laws are being extended wider to try to preserve the monopoly for rights-owners, while a proportion of the public rebels and finds ever more ingenious ways to consume the content without rewarding the rights-owners (given the label of “copyright pirates”).

Who selects what is kept?

In the first instance the commercial owners of cultural content are often sponsors for the creation of the content (eg providing advances to writers, financing movies, employing journalists or other writers, photographers etc), and there are in-built selection processes in that sponsorship (often known as the editorial process). Publication often used to be on a “fire and forget” basis, as noted above; there was often little continuing revenue, although movies have had significant after-market revenues from the video and TV markets. The extended economic life of cultural content is partly due to low marginal continuing costs for holding the content. It only needs a small proportion of the content to make a significant amount of money for the overall costs to be justified (this is partly the “long tail[i] argument”). The extended economic life is also due to the change in practice from selling the content to leasing it, retaining all rights and binding the user with a contract. Provided the cost of de-selection remains higher than the cost of continuing to make available, content is likely to stay available. However, it is at the whim of the content owner, and is susceptible to accidents of technology change.

It may be worth noting that the economics of “keeping available” can vary greatly over time. Storage costs have a tendency to decrease, but many formats tend to become obscure. The BBC in its early days could not afford to keep high quality copies of some of its outputs. Some of those not selected for retention included programmes that later became recognized as landmarks. Fortunately they discovered later that some had been recorded by viewers, and were able to recover copies from these sources.

Commercial content owners cannot easily distinguish the kinds of actions required for preservation from those for piracy. In particular, actions taken for preservation that include making the content available by the preserver, are close in effect to those of pirates. Commercial owners therefore fear preservation by others, in case it erodes their market. Even where compulsory legal rights such as legal deposit for non-print exist, commercial content owners have lobbied for access to be highly restricted (eg to the premises of the libraries concerned). By default, the content owner defines who can preserve their content and what can be preserved. There are also hints that content owners are aiming to capture more rights so as to increase their long tail power, as well as lobbying for yet further extensions of copyright terms.

Cultural heritage institutions are generally charged by society with the preservation of the cultural content they hold. This role is badly affected by the change from cultural content in artifacts they own to cultural content in products they license. However, institutions are battling to carve out roles that will allow them to preserve digital material, eg through partnerships such as HathiTrust. These institutions select content based on their long-term expertise in assessing future value for their particular community. This localization of selection is their weakness (in being divided against the content owner) but perhaps their strength (in that individually their threat is small)?

Who Owns the resource?

Almost by definition, these resources are owned by commercial entities. However, rights may also be highly fragmented. See for example Lessig[ii] (2010) where the lead story element reports the difficulty of renegotiating expired rights to make re-mastered DVDs from old documentary films. Multimedia resources in particular may have very complex webs of rights with various conditions on them.

Sometimes a commercial entity will have all the rights to a resource, eg where the resource was created by an employee, or rights have been assigned. This may have some advantages for curation, as at least the path to agreement will be clear.

All too often, however, the ownership rights to a particular digital (or indeed, physical) object may be unknown. There are many books, movies, images and datasets whose ownership is not recorded. If ownership cannot be established after due diligence, these are referred to as orphan works. There have been proposals to change copyright law to put procedures in place for dealing with orphan works, but we do not know of any success stories here yet. To the contrary, the Authors’ Guild and other organizations are suing[iii] HathiTrust and others, partly over proposals for making some orphan works available, even under controlled conditions.

Who Preserves (or Manages) the resource?

In the context of this scenario, the commercial owner acquires the resource and does what is needed to make it available and earn a return from it. The longer economic life mentioned above provides incentives for them to keep such resources available in some cases (and in turn, keeping the resource available extends its economic life).

In other circumstances, where the resource may be in the public interest but is not likely to earn a current or short-term return, external incentives would encourage them to do so (e.g., tax credits for preservation if available)

Commercial organizations are rarely interested in preservation over the long term in the public interest; they are interested in keeping the resource available over the short to medium term in their private interest. Long term preservation in the public interest usually falls to stewardship organizations; there are many kinds of these, ranging from the obvious library, archive and museum examples to various kinds of Foundations and Trusts. In the digital world, they can usually only carry out their preservation actions on the basis of permissions granted by rights owners, or on the basis of material entering the public domain.

It is worth mentioning one other group, not precisely definable. In some areas (eg computer games, for instance) there are amorphous, distributed networks of enthusiasts who are undertaking preservation actions, sometimes against the expressed wishes of the rights owners. Society may have cause to be grateful for groups such as these in the future.

Who Pays?

In the first instance, the commercial owner pays to make the content available and keep it usable for the economic life of the material. Of course businesses are not charities, so this translates into the public paying directly or indirectly for access to the content; the commercial owner is interested in getting a return on their investment.

Once the economic life of the content is over (which might come before the expiry of copyright), then stewardship organisations might take on the task on behalf of their communities. Academic libraries, for instance, will collect content of future relevance to their community. Most are still relatively new to collecting and managing digital content for the long term, but changes in this direction seem inevitable. National libraries will have similar interests, and increasingly will have Legal Deposit powers that will enable preservation activities.

There are also emerging self-organizing groups of interested stakeholders (largely after the economic life of the materials are over, but quite often before, and without any legal basis) who are willing to collect and manage content in which they are interested.

There is effectively no “second-hand” market for most digital cultural content, other than in “hand-held” form (eg DVDs, etc).

What are key attributes specific to this context?

Commercial owners have the preponderance of decision-making power when it comes to deciding who preserves, who pays, and who selects. There are signs they are wielding that power based on a combination of fear and short-term interests, to the detriment of the long term public interest.

Preservation decision-making is heavily impacted by whether or not the economic life of the materials has ended. In the digital world, this usually relates to whether copyright has expired, which puts almost all digital material at risk.

Hand-offs between commercial owners and non-commercial preservation organizations are especially key in this domain.

Of all the scenarios, perhaps this is the one with the starkest contrast between materials with an economic value vs. a public value, and therefore there is a critical need to integrate the incentive to preserve for private interests, and the incentive to preserve for public interests

Key Risks?

There are many risks here. However, essentially they boil down to a few:

  • the risk that commercial owners will continue to hug the rights to their content close to their chests, preventing preservation and leading to loss of material of great future value
  • the risk that stewardship organisations will take action to preserve and make available (within limited contexts) material still in private ownership, and get sued for their trouble
  • the risks associated with material where rights-owners cannot be traced (“orphan rights”), or where the rights are too complex to unravel (as in some multimedia content)
  • the risks that powerful commercial rights owners will successfully lobby to extend the scope of intellectual property rights, reducing the scope of the public domain, leading to loss of our cultural capital (and potentially damaging other businesses, and potentially themselves)
  • the risks that those rebelling against difficult and expensive rights regimes will further stimulate and feed these lobbies, leading to ever greater penalties for those who are trying to do the right thing by society and the future
  • the risks that all attempts to continue previous business models will fail in the face of this continued rebellion, leading to the collapse of major commercial businesses in the cultural field without stimualting societally valuable alternatives.

 

… and possibly more. What a depressing place to end this section!

 

Chris Rusbridge and Brian Lavoie

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[i] Anderson, C. (2004). The Long Tail. Wired. Retrieved from http://www.wired.com/wired/archive/12.10/tail.html

 

[ii] Lessig, L. (2010). For the Love of Culture. The New Republic. Retrieved from http://www.tnr.com/article/the-love-culture

 

[iii] Authors Guild. (2011). Authors Guild, Australian Society of Authors, Quebec Writers Union Sue Five U.S. Universities. Authors Guild Blog. Retrieved from http://blog.authorsguild.org/2011/09/12/authors-guild-australian-society-of-authors-quebec-writers-union-sue-five-u-s-universities/

 

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