Project members Brian Fauteux and Brianne Selman recently spoke on behalf of the Cultural Capital Project to the Standing Committee on Canadian Heritage during the hearing “Remuneration Models for Artists in Creative Industries.” The video of the presentation is available here. Brian speaks at the 11:18 mark and questions to Brianne follow. The text of our brief is below:
Good afternoon,
We know that the Committee has a genuine interest in providing livelihoods to Canadian creators. The spirit of our submission is to caution that, in an industry characterized by market consolidation and an imbalance of power between artists and the big business of labels, proposals for legislation that do not address this imbalance may, in the long term, worsen the conditions for those at the bottom. Artists are not always the rights holders and legislation for rights holders does not inherently help artists.
Our submission comes from a research team that includes Dr. Brian Fauteux, Assistant Professor of Music at the University of Alberta; Brianne Selman, Scholarly Communications and Copyright Librarian at the University of Winnipeg; Dr. Andrew deWaard, PhD in Cinema and Media Studies at UCLA; and research assistants Dan Colussi and William Northlich.
This team is working on a SSHRC Insight Grant funded project titled “The Cultural Capital Project: Digital Stewardship and Sustainable Monetization for Canadian Independent Musicians” that is looking at issues of fair payment for creators, as well as ways to encourage new and creative artistic production. We aim to represent everyday users and smaller scale creators and hope to provide a diversity of position.
Everyone, of course, comes before this Committee to argue in what they perceive to be their own self interest. As great as the achievements are of any of these media industries you have heard from, their success is based on the creativity of artists who are themselves users of creative goods. Copyright creates and maintains monopolies, by creating exclusive rights that can only be exploited by the rightsholder. But from its inception, copyright law has always also included limits to those monopolies, in order to achieve a balance with the interests of the general public, and to provide access to the public good of culture and knowledge.
Copyright has been effective at building assets for powerful oligopolies. Canadian musicians and users are at the mercy of non-Canadian media and tech companies: Universal, Sony, and Warner control roughly 86% of the North American recording and publishing market; LiveNation and AEG monopolizes the live concert and ticketing business; iHeartMedia and Cumulus have acquired the majority of terrestrial radio stations; SiriusXM dictates the satellite radio market and has just purchased Pandora; and Apple, Google, Amazon, Netflix, and Spotify have come to dominate the digital streaming media sector. There is stunning inequality among musicians and it is getting worse: the top 1% of artists account for 77% of all recorded music income, while the 10 top-selling tracks command 82% more of the market and are played almost twice as much on Top 40 radio than they were a decade ago. It is more winner-take-all in the music industries than ever before and we need to ensure that the middle class of creators have the means to earn a living.
Massive profits are being made in the media landscape, little of which makes its way to artists and performers – a recent Citigroup report found that the U.S. music industry generated $43 billion last year, but artists received only 12%. Much artist revenue has to be sustained by aggressive touring, an option only open to a few and one that is difficult given Canada’s vast geographical area. This market consolidation, combined with vertical integration (where tour promoters are owned by radio stations are owned by record labels) makes it harder for both creators and users to be exposed to diverse, vibrant, and remunerated cultural goods. We wonder, then, what other artist protection provisions might exist and be of benefit to Canadian creators? Like the EU, which is pushing back against the American tech oligopoly with fines and legislation, it is worth considering antitrust solutions that challenge this market domination, or at the very least, maintains space for new entrants into the market. We support recommendations that aim to enable creators to have more control over their creations and their profits.
We recognize that the many industry representatives are in favour of a copyright term extension from author’s life plus-50 to 70 years. We support efforts to make the lives of working musicians more financially viable. However, we caution against having this term extension dominate the narrative of this review and we would encourage a careful consideration of rights reversions as a way to mitigate the ill effects of extension. Recently, Bryan Adams argued for rights reversions with the ability of creators to reclaim ownership of creations 25 years after they have been given away. This suggestion is one that does offer some balance to the historically imbalanced relationship between artists and record labels, where creators are often pressured to sign away their rights for life. Term extensions, however, do not hold up to scrutiny in cultural economic theory – most of the commercial value of a sound recording is extracted in the first 10 years, so a 70 years after death term provides no real additional incentive. Furthermore, it prevents a more vital public sphere to the benefit of major record labels, who get to further exploit an artist’s work after their death. Indeed, studies show that older works in the public domain enjoy greater commercialization than similar titles with restricted rights. Key to creators being able to exercise these rights – and others already granted by the Copyright Act – is clarification that these rights cannot be contracted away. Record labels, publishers, and platforms should not be able to add contractual stipulations that override things like creators’ moral rights, or a hypothetical reversion right.
We agree that public funding is and always has been crucial for independent Canadian creators, but we are extremely wary of this burden falling on users in the form of a smartphone tax. The variety of uses for these devices are numerous, and the vast majority of these uses are going to be for necessary connectivity, not piracy related activities at all.
Copyright reform should not place unnecessary limits on user and artist freedom in an effort to remedy the financial issues that have come from an imbalance of power in the media industries. Instead, we encourage efforts to provide artists with higher payout rates via streaming and online music services. We caution against the technological optimism shown in the recent EU copyright changes, which encourages the enforcement of copyright law by technological algorithm, which is an incredibly blunt instrument to apply to the general public. The additional costs of overly aggressive regimes of copyright enforcement provide ever greater barriers and costs for new entrants into the market. The recent example of Sony trying to require takedown of all recordings of Bach is a good one for showing how expanding notice-and-notice into a regime where companies can unilaterally request takedown of content could have a significant harmful effect on the public. Small creators would unfairly feel the burden of this blunt style of regulation. When it comes to designing a balanced copyright system, there is no need to use a hammer, when we can cut like a knife.
We wish to end by restating that a concentration of power creates power imbalances that require solutions that extend beyond those that benefit the rightsholder. We sincerely thank the Committee for taking the time to hear us today.