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PETER DICOLA, Northwestern University

  • When: November 8, 2017, 12 pm
  • Where: ABF Woods Conference Room, 750 N. Lake Shore Drive, 4th Floor, Lakeside, Chicago IL 60611

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Copyright and Creative Work After Digitization and the Internet

The longtime understanding of copyright law’s purpose in the U.S. is helping copyright owners to combat piracy. By punishing infringement, the theory goes, the law deters copyists and allows creators and copyright owners to make enough money to justify the up-front costs of making creative works. This makes for a fine tale, but it is the wrong story to tell. The digitization of many types of creative works, the advent of internet distribution, and the high concentration of key internet industries, among other developments, have changed the business environment. Today, copyright owners have a fundamentally different relationship with the distributors and retailers of copyrighted works than they had previously. A more apt story for today's economy is that internet platforms (namely, Google, Amazon, Apple, Facebook, Microsoft, and some smaller companies) have a large role in setting the prices for and shaping the modes of consumption of copyrighted works. Copyright’s contemporary function is to allow copyright owners to bargain with internet platforms for a share of the profits from offering digital versions of creative works. Scholars and policy makers should make that the starting point for their understanding of copyright and any attempts to revise copyright law.

My research across two creative industries provides examples of the growing economic and cultural power of distributors. The music industry, at an aggregate level, demonstrates the pricing power of the distributors. Interestingly, the contemporary story of powerful music retailers does not truly begin with Apple’s iTunes store but with Wal-Mart’s brick-and-mortar superstores. Wal-Mart became the nation’s largest music retailer in the early-to-mid-1990s; the firm exerted power over prices, over album covers, and over musical content. As digital music has matured through the onset of unauthorized file-sharing software to the current era of licensed streaming services, recorded music revenue has stabilized—but at a much lower level than that its end-of-century peak. The common thread across all these distributors—i.e., across superstores, file-sharing networks, and on-demand streaming services—is the shift from copyright owners dictating prices and product features to distributors having much greater say in those matters.

The photography industry presents distinct issues that have emerged within the same broad, societal shifts to digital copies and internet distribution. Photographers stand out and self-identify as facing distinct challenges within the copyright system; to name three examples, registration is more cumbersome, enforcement is more difficult, and the digital equipment they use is now ubiquitous among the general public. Along with my collaborators Jessica Silbey and Eva Subotnik, I have been part of an empirical project to study the working situations of photographers. Using both qualitative and quantitative methods, we are investigating the business and art of photography as it has evolved with digital technology. The goals of the project are to learn how earning a living as a photographer (or through photography) and the practice of photography have changed after digitization as well as how photographic culture, aesthetics have evolved alongside. In particular, we are interested in the roles intellectual property law plays in the changing (or enduring) aspects of photography as a professional and artistic endeavor. So far, we have conducted twenty-five interviews, each approximately ninety minutes long, and we have done some preliminary coding and analysis of those interviews. We plan to eventually run a survey based on the qualitative analysis of the interviews to test some of the relevant variables and distinctions that emerge from the interviews.

As we investigate the complex relationships between technological change, aesthetic practices, and copyright law, we are looking to multiple theoretical frames inform our questions and methods. First, from prior empirical work in intellectual property, we understand that a “one size fits all” model of copyright protection is inaccurate as a matter of doctrine and practice. Variations in copyright-rich industries dictate diverse uses and needs for copyright law—some uses are different but complementary and others contradict and undermine one another. Second, we understand that the copy, distribution and display functions have merged in our digital age (and have become cheaper and easier to accomplish) despite copyright provisions that distinguish them in critical ways (e.g., the first sale doctrine). This presents particularized problems and solutions in fields such as photography, music, software, but perhaps not in others like sculpture and industrial design. Third, business models for creative and innovative endeavors, whether start-ups or large firms, are rapidly evolving with internet-platform technology and information-distribution networks. These changing business models are worth close study for the ways they may be altering the creative environment for photographers specifically. These new business models also affect creative actors more generally, which in turn may affect how the copyright system is perceived, employed and enforced.

Courtesy of Northwestern University

Peter DiCola uses empirical methods and applied economic models to study intellectual property law, media regulation, and their intersection. He received his JD and his PhD in economics from the University of Michigan. His research has centered on the music industry and related industries. In graduate school, he worked with the non-profit Future of Music Coalition on many research projects and he continues to serve on its board of directors. His current work focuses on copyright law’s regime for digital sampling and deregulation in the radio industry.

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