Monday, 29 Oct 2018

Standing on the shoulders of giants

Victoria Kelly's keynote speech at the 2018 Balancing Copyright Conference

My name is Victoria Kelly and I’m the Director of NZ Member Services at APRA where I represent the interests of our members – composers, songwriters and music publishers.

I’ve worked at APRA for 4 years. Before that I spent 25 years working as a professional freelance composer and musician – mainly writing music for screen but also composing contemporary classical music, collaborating and performing with popular artists and in many other musical genres and capacities.

During the four years I’ve spent working on the industry side of things, it’s been my experience that the perspective of individual artists and composers is often missing from conversations about the impact of things like copyright legislation, industry transformation and big data, so I’d like to shed some light on how we… the atomised creators eating chips in our bedroom studios at 3.00am as we search obsessively for the perfect note…  feel about the tectonic social, technological and geopolitical shifts that are taking place around us. Because composers and songwriters – all of us sole-traders, independent contractors and small business owners – are incredibly vulnerable to the effects of all this change and we often feel uninformed, overwhelmed and powerless in the face of it.

With some embarrassment, I’ll admit to you that, during the 25 years I spent writing music professionally, I had very little understanding of copyright other than knowing it meant I owned the things I made – that I could draw a little circle with a c in it on my manuscript and if anyone else wanted to use that piece of music they had to ask me first. Indeed, in my youth I posted copies of my own music to myself with adolescent reverence, imagining I was performing some great and historic task but not really knowing what it meant.

As my career progressed, I joined APRA and learned that copyright had a value beyond a symbol on a manuscript and that it could generate actual money. I can’t tell you how many times since then that a royalty cheque has saved my life. I didn’t know what the royalties were made of or where they came from… the appearance of a cheque in the mail was some kind of beautiful miracle… but I did know that my music was generating income in some parallel universe, and I was both delighted and astonished by that fact.

I found myself being asked to sign contracts that relinquished some of the ownership vested in my copyright creations, along with some of my rights. Again, with embarrassment I confess to you that – like so many other artists and composers before me – I signed dense, complex documents without fully understanding them and learned the hard way that my copyright creations were actually worth more to me than I realised.

Copyright took on a new dimension when I began working in the film industry and my music became bound to the creations of other people. The contracts I signed got a whole lot thicker and included phrases like ‘exclusive license… in perpetuity… for all media now known and yet to be devised…’  Over time, I learned what the language of these contracts meant and became increasingly aware of what my rights actually were and how easily they could be signed away if I didn’t pay attention.

Still, it wasn’t until I started working for APRA that I became fully conscious of the scale and detail of the legal and corporate structures that have grown up around music – structures which somehow have to be navigated and understood by individual and often isolated composers like me.

It’s frustrating I think, for many in the industry, that composers and songwriters are often disinclined to know more about the mechanisms of the industry. It seems counterintuitive that we would  be reticent about understanding the means by which our work can support us, and indeed our reticence makes us extremely vulnerable. Ask composers how we feel about money and you’ll find that many of us are deeply uncomfortable talking about it… as if attributing value to our own music is somehow disingenuous or even fraudulent. We hate negotiating contracts – and especially fees – for ourselves. We’re not usually entrepreneurs, trained accountants or lawyers and many complex business processes lie far outside our realms of expertise. Like anyone, we want to play to our strengths, apply our skills, aspire towards excellence and earn a living from what we make.

It’s crucial to understand that pleasing an audience is usually not the goal of a music creator. Music itself is the end goal. Growing an enthusiastic audience can be a happy side-effect of our work, but it’s not the reason we create. So in order to live a professional life and better focus on creating music, we out-source the things that don’t come naturally to us. We pay others to do the extra-musical aspects of our work. Often that payment comes in the form of a share of the ownership in our work because we don’t have much else to offer up front, so instead of money we give managers, publishers, record companies and distributors percentages of ownership in our work in return for their services and knowledge, the power of their organisations and the networks they’ve developed… all in the hope that, by doing so, we’ll generate enough of an income to allow us to continue creating music. And all things going well, this is a fair exchange (as long as we’ve read and understood our contracts properly).

For a composer, music is first and foremost about identity and the expression of that identity through a language that describes – as Victor Hugo said – “that which cannot be put into words and on which it is impossible to remain silent.[1]

Therefore copyright, for composers and songwriters, is the means by which we can name our work. It’s a means by which we can say ‘I made this’… a means by which others are then bound to observe the fact that we made it… and a means by which we can potentially be rewarded for what we’ve made.

In the arguments for a more lenient and open approach to copyright the point is often made, as Deloitte makes in their economic assessment of fair use in New Zealand (commissioned by Google in 2018) that “creative effort is inherently cumulative; the work of each creator drawing on the public domain, constituted by the accumulated creative endeavour of mankind, as well as by contemporary creators who collectively form a creative context in which all dip.” [2]

They go on to say that enlarging the pool of works in the public domain will “allow creators to better stand on the shoulders of ever-taller giants”… a quote they attribute to Isaac Newton in 1676.

This quote (which was actually first attributed to the philosopher Bernard of Chartres in 1159[3]) is indeed a beautiful articulation of the cumulative nature of human achievement, but it also embodies a sense of the respect that an individual creator can and should afford to the work of the individuals who have paved the way for them.

As it turns out, Isaac Newton quoted this phrase in a letter to his arch rival, Robert Hooke[4]. Hooke was the first person to suggest that light was a wave. Newton disagreed. He argued that light was a particle. It took a few hundred years of thought – along with the intellectual power of Albert Einstein, Max Planck, Niels Bohr and others – to come to the conclusion that they were both right.

Yet Newton and Hooke argued over the provenance of their ideas. Hooke believed that Newton could never have written his Principia Mathematica (containing his Law of Universal Gravitation) without Hooke’s own theories about the attractive force between the planets and the sun. And so the words of Bernard de Chartres were spoken again, not to argue that all ideas belong to everybody as Google suggests, but to express the right of an extraordinary individual who had distilled a litany of ideas into something singularly profound, and put his name to it. 

A great idea or creation is the product of both an accumulated history and a single human lens through which that history is focused in a uniquely illuminating way. So while nothing is created in isolation, you still can’t remove the individual from the creative equation. We don’t attribute the Law of Gravitational Motion to a faceless collective, we know the name of the person who wrote it. We credit Isaac Newton, because his was the mind in which all the separate elements finally assembled themselves into  a cohesive shape.

There are of course people and organisations who don’t fully agree with this individualistic view – and systems like the Creative Commons have arisen to offer alternatives to individual ownership and the control of creations, arguing that pooling and sharing them with people who wish to build upon, transform and/or adapt them with freedom serves a greater good. I personally agree with this, in the sense that I think all creators should be able to decide how they want their work to exist in the world and if someone decides to contribute their work to a larger creative pool, the decision is theirs to make. The fact that correct attribution remains an important aspect of Creative Commons – alongside the presence of a clear distinction between commercial and non-commercial use – shows that, even if their system offers expanded access to creative works at no cost, it doesn’t do so against creators’ wishes and it still fundamentally recognises and respects their identity.

A contradiction arises though, when a person or organisation refuses to pay for the use of creative works, yet still expects to harness those works’ intrinsic value in order to generate revenue for themselves.

Openness is how the internet was created and openness has fuelled its growth. But now we find ourselves at a point where that growth has allowed a very small number of private technology companies to dominate and monopolise the once open online environment, and use their dominance to close the doors behind them.

Today, Google performs the vast majority of online searches. YouTube has more than a billion active users each month. Facebook has more than 2 billion users. Copyright law hasn’t prevented any of these companies from achieving this dominance – in fact, governments around the world created exceptions to copyright law in order to facilitate more open conditions in which they could (and did) flourish to the extent where Google has now accumulated such global influence that they have the power to lobby our government – as they are currently doing – for even more leniency in our copyright legislation, in order to have even greater access to our creative works, lest their innovation be stifled.

Why? Because content fuels their business.

My artist’s perspective on this is that I didn’t study music for 20 years of my life to become a content creator for a massive tech monopoly who values my work enough to take it and generate revenue from it, but not enough to pay me fairly for it.

I’m a composer. I create music. And I studied music because I wanted to somehow articulate existence as I experience it, and also because it was a sphere of endeavour in which I showed some potential. I’ve always felt like a person who’s overflowing, sometimes messily, and music is my release valve… my way of overflowing with dignity.

My ambition has never been to feed content into ‘decision assistant’ algorithms that determine what end-users are exposed to, in order to generate billions of dollars of advertising revenue for the dominant force in a monopolised marketplace. It’s been to compose good and meaningful music, and earn a living from doing it.

Which is what strong copyright legislation exists to help me do.

Digital marketers would perhaps refer to the kind of musical work I hope to create as ‘evergreen’ content. The kind of content that stays relevant and meaningful to the user, the kind of content to which users will continue to return and repeatedly consume, content with a long tail that provides an ongoing marketing opportunity.

No artist thinks about their work like this. No composer or songwriter sets out to write evergreen content with a long tail. And music and other art forms have, in my opinion, been utterly dehumanised and commoditised by the word ‘content’. Just as the audience for music and other art forms been dehumanised and commoditised by the word ‘user’. Music is a uniquely powerful reflection of human nature that philosophers across time and space have tried and failed to adequately define, such is its intrinsically mysterious yet profound importance to our existence.

Precisely because of its power and the connection that people feel with it, music has now been redeployed as a means for large online platforms to collect vast amounts of data about their users. They use this data to monitor and control their users’ online experience, to create algorithms which automatically direct new content towards their users in order to maximise advertising revenue and to  influence what their users consume. Meanwhile, users are becoming increasingly less conscious of the influence being exerted upon them.

Yet, for all the freedom they desire, these massive corporations are remarkably shy about sharing the data they collect from their users and equally shy about returning any control to users over how their data is applied.

In fact, such is their protectiveness that patent wars have erupted between these companies, who are all fighting fiercely to protect their own innovation and ideas, just as they demand we give ours away [5]. And it pays to note that the devices they create – the mediums through which our content flows – are not so altruistically conceived that they are free for us to use.  

These inequities – along with the privacy issues that accompany the application of all this data and the lack of transparency afforded to users – are becoming a global concern[6].

Yes, legislation does need to keep up with the demands of a rapidly transforming world. The demand for ‘content’ will only increase with new technologies, such as AI and Virtual Reality, creating ever more complex challenges and conundrums for rights holders.

Excellence in artistic creativity and innovation relies not only on the presence of ideas, but on the quality of those ideas. If composers and songwriters are to aspire towards the highest quality of music, then they need to be able to spend time training, studying, exploring, taking risks, learning, absorbing, failing and trying again in order to achieve excellence. This time costs money, which is why valuing and protecting creative work through the mechanism of copyright is crucial to innovation, rather than an inhibitor of it.

A system which vigorously protects creative works and their owners – with clear and well-defined exceptions that allow innovation and creativity to thrive without costing or exploiting creators, complete with a fair and manageable way for creators to opt out and share their works more freely if they so choose – is what I as an artist would like to see championed in New Zealand when our Copyright Act is reviewed next year. Big tech companies are working overtime – as they have in other countries – to urge our government to relax the protections it currently offers us and enact legislation that gives them greater access to our work. If they succeed, the sustainability of our careers as artists will be threatened, as will our control over our work, how it’s used and the place it holds in the world. If we relinquish these protections they will be almost impossible to get back.

Our work is valuable.

We create music – not content – and music is not created to facilitate the collection of data, the erosion of privacy and the generation of advertising revenue against a composers’ will. It is created to embody and communicate the essence of who we are.

Victoria Kelly © 2018

[1]   Victor Hugo: William Shakespeare (1854) pt. I, bk. II, ch. IV

[2]   Deloitte: Copyright in the Digital Age: An economic assessment of fair use in New Zealand (2018)

[3]   John of Salisbury: The Metalogicon (1159) bk. 3, ch. 4, 

[4]   Isaac Newton: Letter to Robert Hooke (Feb 5 1676)

[5]   CB Insights: Winners and Losers in the Patent Wars between Amazon, Google, Facebook, Apple, and Microsoft (Nov 16 2017)

[6]   Foreign Affairs Magazine: World War Web - A Big Choice for Big Tech (Sep/Oct 2018) Viktor Mayer-Schönberger and Thomas Ramge

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