On today's episode, Jessica Silbey and Rebecca Giblin discuss their new books "Against Progress" and "Chokepoint Capitalism" with Engelberg Center Faculty Co-Director Jason Schultz. It was recorded on October 13, 2022.
Announcer 0:01
Welcome to Engelberg Center Live!, a collection of audio from events held by the Engelberg Center on Innovation Law and Policy at NYU Law. On today's episode, Jessica Silbey and Rebecca Giblin discuss their new books "Against Progress" and "Chokepoint Capitalism" with Engelberg Center Faculty Co-Director Jason Schultz. It was recorded on October 13 2022.
Jason Schultz 0:30
All right, thanks, Michael. Thanks, everyone, for coming out. I'm Professor Jason Schultz, co director of the engelberg center and ITC technology oncology clinic here. And I encourage you, I will be eating and drinking during this presentation, I encourage you to eat and drink and get more food and do all that stuff. We're gonna have a conversation and and try and keep it very casual and easy to use, introduce Rebecca, just guy in a second and ask them a bit about their books and about some of the kind of, you know, topics that I think crossover between their books, but then we're going to open up for q&a. So if you have questions and or things you want to ask them about that will be time for that. So definitely keep that in mind. So there's a lot I'm not big on introductions, because I think now in the world of information, you can find out as much as you want about people, but I wanted to welcome and say how excited I am to have this conversation with Rebecca Giblin from University of Melbourne law school, and Jessica Sylvain from Boston University Law School. They both without coordinating, I think it all came out with amazing books of the moment, I think, that intersect a number of really important issues when it comes to the questions and the struggles of artistic and creative creation, technology and capitalism in this moment of where we are across the globe, but also in particular, around the US industries that have become so dominant, both the culture industries, but also the technology industry. So just getting asked you to hold up your book for a second, this is just this book you should all buy it is amazing and awesome. And apropos, I have a digital copy, Cory Doctorow, which they
Rebecca Giblin 2:21
did not think to bring impressive, but
Jason Schultz 2:24
accessible as an ebook, God as a physical book Exactly. And
Rebecca Giblin 2:32
I think audiobooks pretty good
Jason Schultz 2:37
in many formats, and so how this is gonna go, right, as I mentioned, is like, you should buy their books, you should read them. But I'm gonna try and get to kind of some of the heart of what I think is sort of a good starting place with each of your books. Right? So I'm just gonna start with you just in the sense of, I think the stories that you tell in your book about how we need to think about the connection between creativity, and the production of cultural
Unknown Speaker 3:12
works.
Jason Schultz 3:15
What is progress in a societal sense, and the current moment, or moments that have been happening for a long time, but I've been really kind of, I think, coming to a flashpoint in the various creative industries, especially you do it, you've done a lot of work over the years interviewing and working with and talking with creators. And I think that's a piece where, for a long time, intellectual property law would talk about creators, but there was not as much information and connection and work with people who were doing the daily practice and doing the kind of long career practice or the intermittent career practice. And I think you've done this as well. And so I think this will be a connection point. But I wanted to ask you about the title. Because I think it's very provocative to say you're against progress. But I mean, you know, it's like, I wanted to do this a little bit more about what that really meant for you in writing this book and what you want people to take away from the book, and in particular, like, how do we know if something is or isn't against progress in your mind as we think about it? And think about these questions of creativity and copyright and and kind of survival?
Jessica Silbey 4:26
Yeah, that's a great question. Alright. So I get asked about the title a lot. So as with my first book, I didn't pick this title. Somebody else suggested it to me. And I it was because I talked about progress in the book because it clause is in the Constitution says to promote progress of science in the arts. And I'm also I also teach constitutional law and constitutional lawyer, and I think a lot about how the Constitution adapts to various times and different generations and the idea of progress of science and useful arts. I'm assuming adapt to. And so what I identify in the book that I think we are fighting against, or that certain class of intellectual property disputes are fighting against or claims is against the idea of progress as a form of accumulation. That is, over the 20th century, maybe even half of the 19th century, the idea of how to build what we, when we know IP laws are doing what they're supposed to do, they're generating a lot of creative and innovative work that disperses and grows markets and helps communities sustain themselves, etc. And that progress largely is about accumulating and not worrying about the distributional effects. And sometime around the middle of the 20th century, I think there was a time when the idea of progresses accumulation shifted to be not as much about quantity as much as about quality, qualitative measures of human flourishing, creative communities, measure measurements of innovation. And we see that through the idea of through the different kinds of disputes that and community conflicts that identify in the book. So when copyright is being used to promote privacy, which feels very antithetical, or patent laws being used to promote speech, for example, which feels sort of weird or non speech, for example. So we see IP being used in ways that are not about accumulation at all, or about assets or capital growth necessarily, at least on the face, but about these other fundamental values. And so the idea of that progress, I'm against an old form of progress, and questioning what the new forms of progress might be. How do we know? So I think there are metrics right now in our in our world that suggests that things are going really badly, nationally, and whether it's just the profound wealth inequality, or its health metrics, or is climate issue. I mean, I just, I think, I think, if we're what we're talking about is human flourishing, well distributed. And that's what I think communities of creativity and innovation to sustain themselves require. I think we're not, I don't, I don't find it hard to say that we are not promoting progress today.
Jason Schultz 7:23
So Rebecca, just to get your sort of book on the table to write so you call it choke point, capitalism, I'm not gonna ask you about the title, you can talk about it if you want, because I think it will come up. But what I loved in particular about what you and Cory did was my computer freezes. is you not only wrote about this concept of checkpoint capitalism, but you gave some very specific examples where you kind of go chapter by chapter through various different parts of creative industries, and in particular, kind of the through line from creation to audience and where those choke points are, right, and how they're impacting that connection, right between ultimately what you know what theory progress is supposed to be on some level, which is at least in part, audiences, and people getting the sort of experience of the creativity in whatever way they need to. And so I'm just going to read a couple of the chapter titles, because I think they're really great. And I wanted to ask you to just pick one of them. And maybe tell us a story from one of those chapters that demonstrates what a choke point is with, you know, in the capitalist world that you're talking about, and kind of why you may be picked that story to demonstrate it, right. So and this is a preview for the book as well, encouraging you to buy it right. But I think so like, for example, chapter two is how Amazon took over books. Chapter Three is how news got broken. Chapter Four is why Prince changed his name. Chapter Five is why streaming doesn't pay. Chapter Six is why Spotify wants you to rely on playlists. And I think I'll stop there. So if you want to just pick one of those and tell us the story, and then connect it to the thinking behind the book and about choke points, I think that would be really useful.
Rebecca Giblin 9:22
So maybe it would make sense to just explain what we because we coined the term choke point capitalism, to explain a little bit what we mean by that so that the rest of it does make sense. Whether you're a fan of capitalism, or you think we should burn it all down, competition is fundamental to it's working right. But it's become really unfashionable to compete. Warren Buffett salivates over businesses that are protected by these wide sustainable moats, which means no one can kind of come in and, and compete with them. Peter Thiel says competition Since the losers, this is what's taught in business school these days. And it's promoted by this 40 years in the US of antitrust law that has been treated monopoly and increased corporate concentration as presumptively beneficial. Look how efficient this can be. And what we wanted to get out in the book is show that over and over and over again, and what we're seeing with this increased corporate power, is them creating these choke points, so that you no longer have like pre any kind of free trading between buyers and sellers in an increasing number of areas. But you've got these kinds of hourglass shaped markets, right. And so in the creative industries, you've got audiences at one side, creators at the other. And then these powerful corporations squatting at the neck, where they're able to extract more than their fair share of value. So Amazon does that with you know, with physical books and eBooks and audiobooks. Apple and Google do it with with mobile software, Google and Facebook and Amazon do it with online ad market, like over and over and over again, you see this trip points. And so yeah, what we do in the book, and the story of this group, so this, this book was born, when Cory and I were in a taxi together in Melbourne, on our way back into the city after an event. And we were just we were just so despair about this false dichotomy that is just constantly presented to us of creators versus users, like those of us who, who are immersed in these, in this sphere are constantly asked to pick a side, right? But I mean, not only is that a false dichotomy, but it allowed so many really crucial things. What I want to look for one thing, or whatever in this room probably wants is to have a copyright law that veterans uses its aims for recognizing and rewarding creators and achieving widespread incentivizing, you know, the initial creation and ongoing access to work so that we society can benefit from access to knowledge and culture, with far less collateral damage than the system that we've got now. So what we were saying is, this is not a choice, right? We shouldn't have a system where we get to choose like, do we want the crumbs from the table of big tech or the crumbs from the table of big content? Because if they're good enough, how are they still gonna treat everybody badly. And so what we said is the problem is big. So when the world was cancelled, in my research program was cancelled. I was I immediately felt this was the story that I needed to tell next. And then I realized this would be much better Cory read it with me, this is something you can do by email, Cory Doctorow. And ask him to write a book with you. And I say yes. So definitely do that. He'll kill me. He says, If please don't do that. He whenever, whenever I make this joke, he is always very clear. Absolutely do not do this. And he will not say yes, I'm sorry.
Anyway, so that's kind of the background what we're doing. But what we really, really, really didn't want to do with this book. We didn't want to make it another one of those chapter 11 books. You know what I'm talking about those books, you've got 10 chapters about how dire and awful everything is. And in chapter 11, they're like, Well, we're out of time. But here's a few like hand wavy things like some, you know, like, Bert hada, right? What we wanted to do, okay, so we're going to persuade you the first half of the book, the problem is this power imbalance. And in the second half of the book, we're going to show you what we can do to widen these two points out all of these interventions outside of antitrust, which, obviously we need better enforcement of the law and the books reforms to that law. But antitrust does a really poor job of responding to monopsony power. And this is a horrible where half of your stop listening right now. Our first read has made us take out at least half of the terms we use this this word because it's ugly. And in fact, what we're really talking about most of the time is all lookups. And even worse, but we're determined that we can make this sexy right and what what monopsony is about? We don't have a board game for this one like Monopoly. So it's a little bit weird, but it's where it's not the seller that's got the power of a buyers. It's where the buyers got power and the sellers So Amazon is dealings with publishers is a myth has monopsony power. The big Hollywood talent agencies who have got the all the talent lined up, they've got monopsony power over them, and so on. So that's what we try and do. And so that's what some of these stories are about. And like in terms of in terms of the the outrageousness Amanda so I was really I saw this great tweet to us a day or two ago where somebody said they were listening to the audiobook and they were 39 minutes in and they will already laughing uncontrollably with ready to you know that feeling, which I was just like, mate, just wait. You're gonna be like, you're gonna be just like, like hysterics in another hour. But let me talk about the print stuff, right? This whole stacks together, right? So these chapters especially when we get into the music stuff, what we see is choke point after choke point after choke point. And they're created in all different ways and in the music industry. It's a really nice illustration of the different ways that can be set up. And then then by the time you get to the end of that, that you're not surprised that creators make so little money, you're surprised that they're making anything at all right. And so what we do like we start by explaining, like some of the cons in the music industry and how that's worked over time, which is about print. And then we segue into how the major record labels actually designed the streaming industry, which is why it's never going to pay and why it works the way it does, and why it disproportionately benefits their works. And then we get into how Spotify and the other streaming majors are trying to do exactly the same thing and create their own choke points. But I do think that the story about why Prince changed his name is like, a kind of fun one and something we can all understand. Because I think a lot of you are kind of too young to remember when that happened. Does anyone know what I'm talking about? Does anyone not know what I'm talking about? Yeah. Okay, so there was a point where, Prince, we will have a prince there, right? Okay. And this is gonna segue nicely. I think if you didn't want to talk about the wall case, later on, we are nearly bringing all this mystery. There was a point where he changed his name from Prince to an unpronounceable symbol. But that did not exist in a typeface of like any newspaper or any kind of media. And at a time, it was still very much print media. And through everybody didn't really know how to deal with this. They started calling it as the artist formerly known as Prince and then trying to replicate the symbol and all of this. And I think at the time, a lot of us thought like, wow, like this, this dude's a bit wack. Like, it's a really strange thing to do. But we're gonna talk a little bit why he did that. And it was sort of much more strategic and much more political than I think a lot of the coverage at the time made it out to be. And so the way record industry
Jason Schultz 16:44
contracts work, this is the symbol just so yeah, yeah, that
Rebecca Giblin 16:48
was what his name became. Okay. So I'm just going to talk a little bit about the way that the record industry worked around this time, and some of the most egregious abuses, still, the royalty rates were really, really low. Artists were charged for nearly all of the costs of recording their albums, right. And then that was all made a debt, a recoupable debt that was tightened up to them. So the record industry is different to a lot of other creative industries, like when we write our books, for example, we might get an advance against royalties, but we don't get charged for like all of the costs of the editor and the typesetting. And printing the thing, right, because like, this is a partnership with your, your publisher, and you both, we've written the book that cost a lot of money, and a lot of time, they're making that contribution. And then we're sort of splitting what comes out record industry who pay for almost everything of the cost of production. And so at this time, the royalty rates were, you know, 4% 8%, something around that. And you would have to repay everything out of your 4%. And so that means that you've, you've got others to whom we talked about in the book, who made generated 10s of million dollars in revenue, and never had never earned out their advance and seen anything since. So, you know, on a recruitment debt of $150,000, which was not a lot to keep it balanced before people going in to cover some touring cost of production of the album or whatever. It was common for that, potentially $3 million in revenue before that notional $150,000 debt was wiped out, and then the artists would actually start getting paid. So he was objecting to this video suggesting that he wasn't really prolific music maker. He loved making music. He wanted to release a lot more albums. And his label wouldn't let him right. They wanted to make sure there was artificial scarcity. They wanted to to make sure that there was excitement for the rare releases that were permitted and they prevented him from getting his music out there. Something else that's really important to notice these contracts lasts forever. There is a termination law in United States when you add a shouldn't be able to get underwrites back after 35 years after transfer, accepted for to work for hire and what neither numerated categories. Now sound recordings was not in that nine remunerated categories, even though rights holders when this law was been hammered out, managed to get so many other concessions and make this law like virtually unusable for many, many people. But they were very concerned that maybe recording artists would get their rights back. So in around 2000s, in the dead of night in the satellite Home Recording act, this congressional staffer snuck in for words, as a technical amendment, so called technical amendment, that inserted sound recordings as one of the categories of works for hire that that could be taken away by contract. So you wouldn't even be able to terminate after 35 years. Nobody noticed. It got signed as part of the sort of mammoth appropriations thing signed by the president before anybody noticed. And then there's like full uproar. The recording industry is just like, oh, well, it's done now, sir. And the congressional staffer who snuck that in was a couple months later hired by them Is today they see or anyway, so like, it's just like caught up to cut off to clone. And Prince a prince was just complaining that not only do you not let me not only do not pay me appropriately for my music, not only do you stop me from making my music and getting it to my fans, not only are you locking me into these contracts forever, but even if I do manage to like burn out, even if I'm so massively successful under your terms, I still don't own my masters, right? So it's still like the master record is controlled by the label. And so he was saying, if you don't control your masters, you'll master Are you. And so that's the reason. There's a whole combination of reasons why Prince changed his name to that unpronounceable symbol. He didn't want that to be owned by his label. And they had him sewn up very tight.
Jason Schultz 20:56
Right, so you both are talking about a bunch of the different factors that I guess at one point, the kind of copyright story, especially the United States, is in theory premised on and like the way that we might measure like, is it working or not working? You know, the classic thing that gets taught law school since we aren't a law school is that there's this incentive theory, right? That you incentivize creation through copyright, and that the social benefits of it end up making up for the embarrassment of the monopoly, as Thomas Jefferson once said, Whenever I have these kinds of rights. And so I want to press a little bit harder, but also give you a chance to also to dig into the books that you wrote about is, is that something that we should still talk about at all? Like, do we care at all about this incentive theory? Or is it just so like, irrelevant in a sense to what we're really concerned about, with artists and creators in in culture and politics? And if it is, so we're talking about, what should we be talking about when it comes to instead of theory?
Jessica Silbey 22:04
Well, that's my first book. Go by that? Yeah. That books called the Eureka myth. And and genies actually Frommers written about incentives quite a bit expressive incentives, intellectual property law, I've always just felt like, it's just a very, over General, General category. And we have to just get much more specific about what kind of incentives we're talking about
Rebecca Giblin 22:29
what we want to incentive. Yeah,
Jessica Silbey 22:30
yeah. So talking about that. Yeah. Right. So so I'm so
Jason Schultz 22:35
sorry, let me just to say like, if there is I both of you have done an immense and interesting work with creators directly, including running your own publishing house, nothing. So if there's time to pull that in, this would be great.
Jessica Silbey 22:46
You're right, so um, so when I did the first book, where I interviewed a bunch of long form interviews with creators and innovators, and their business partners, in many spectrums, one of the things that I was asking was, what enables you to do the work that you do, like, what do you need to get your work done? You know, of course, money was part of that story. But also, it was time, it was space, it was loyal relationships. It was quality materials, for example, that weren't always about money. You know, there were sometimes a theory of stuff like forms of privacy, or, or content kinds of contentment, that that was generated by communities within the community space. And, and so part of what that book does is just chart out all these different things that people need in order to do their work, whether that's an incentive or not, it's like not this carrot on a stick kind of thing, their short term and long term. I just think that that whole over overgeneralize story about economics, like if you give me money, I will do X or if you know, just, first of all, I cannot economists don't even talk like that anymore. Like why is IP still talking about that? I mean, it just feels sort of baldly wrong. So this, the new book, takes some of those interviews, and then bases it on a whole bunch of other interviews. I speak with I do the first chapters, I'm only with photographers, I did a lot of case study on with digital photographers whose livelihood has been profoundly challenged by the digital age. And one of the questions I was wondering is whether they were going to sound different than a lot of the other people that I talked to that is
whether, whether as a group, they actually wish copyright was stronger and longer that they actually, you know, that they may be are incentivized by the actual royalty streams that come from there. You know, I just wanted to know, maybe, and, you know, the answer was no, I mean, the answer is no, but there's more variation there. And one of the things that photographers do talk about though that I heard less in the in the, I didn't write about as much in the recommit, but I read about here is this exploitation of labor is this question of The difference between individual freelance writers and giant companies that aggregate their work aggregate all their photos, it used to be for example, if you're a small photographer or professional, successful photographer, even if you're just one person, you could sell your photos to, in the early days of the Internet to a stock company, and you could you been make actually good money off that off those off those royalties. But what they eventually as these stock photo companies started aggregating, started conglomerating, and they started encouraging people to put stuff on there for free, like put your photo of the coffee for free, or put your, you know, all the commercial, you know, people would end up in, or they would automate photos. So they would make you know, AI photos of objects, instead of artistically rendered photos that people would not even have to pay for it like two cents apiece for them rather than the $2 for the licensing, for example. So they flooded, they figured out how to flood the market for licensing of photos with largely non made non human made stuff, or very, very cheap stuff. And so the story that the photographers tell is the story of labor precarity. It's a story of not recognizing quality, the difference between a quality photograph and a shitty photograph, for example, which they think matters for truth in the world, you know, when documentary photographers aren't paid well, and you're just getting citizen photography, for example, that doesn't get fat checked on on the new site, you know, you don't know what they're what you're seeing is what actually happened. And there's a filter on it, for example. And so the standards of photography diminish. So these are the speeds or stories about the quality of the product is their stories about not being paid for the labor being diluted in that way. And we can, you know, I have a mixed feeling about photography, I mean, I love often people I interview I enjoy, you know, I'm longtime friends with them. But I, that, you know, they can be it, they can be inconsistent. And so one of the conflicts sometimes So, example of a conflict, a lot of photographers like celebrity photographers, some of whom I interviewed, they'll take photos, make photos, they always call it making photos, they will make photos of people on the street, make a lot of money selling those photos to certain outlets. And then that person who's the subject of the photo, Jeanne has written about this too, a little bit. And Amy will then say, well, I want to post that on my Instagram feed, or I want to put that on my website. And the photographer's like, oh, no, that's my photo. And you're like, wait a minute, but you've made that photo of somebody else, like, Whose photo is it? And so then the ownership claim. And so this is a question of identity and privacy and relationships, and collaboration. But if so, the photographer will get grabby as what I think grabby about who owns the copyright in that photo, when but for the celebrity, they wouldn't have something. And so then we get an argument about about, about how claiming in this space that feels precarious, becomes everyone goes to their corners and starts arguing about what they own, rather than thinking about how we can share the pot or share, share the work that's being done. And I think that kind of labor precarity actually creates the system we have now, which is about incentivizing you know, the aggregate of capital, which is actually just I think pulling people apart, rather than incentivizing collaborative collaborative work, which is what I think most people would prefer
Rebecca Giblin 28:23
to do. You say you're not good at book titles, but I can't wait for the next one. Being grabby. Yeah. Sorry. So I think it's really important to first of all, when we talk about incentives to talk about, you know, going off with this, what do we mean to incentivize what incentivize who to do what Right? And, and I've written extensively about this. If copyright is indeed, intended to incentivize the initial creation of works, we give way, way, way more than we need to do that. Right. It's very clear economic modeling that shows that we're like, vastly, vastly outpaced what's necessary for that. But then we also want to incentivize ongoing investments in ongoing availability, right? Because the whole point is, we don't we don't want to incentivize creativity in and of itself, we want to incentivize creativity, so that society can benefit from access to it. And so we need to then continue, we need to pay more to get back into access. What happens though, is that when we when we pay in the form of copyright as a an upfront, lump sum award of rights, that's, that's granted regardless of, of whether anyone actually does make those continued investments, we think they don't happen. And so we are my team did a study called what happens when books enter the public domain, and we analyze the relative availability of culturally important English language books across four different English language countries by controlling for everything And the only variable was copyright status, right. And so what we found is that the books were far more available in New Zealand and Canada that had the shorter terms where they had entered into the public domain than in the US and Australia where they were under copyright. What we also found, though, is that even in even in those countries with the shortest term, most of those books were just lost, they just were not available that nobody is investing in making them available. And we see that we see that everywhere in the book market, like most, most books, are out of print and unavailable, like they lost her Australia's literary heritage, for example, so much of that is just gone. And everything that's sort of pre digital, it may be what's very close to being lost forever, or has been lost forever. And so that was one of the projects that Jason mentioned, when I started working, when I started working in this area, and I'm really obsessed with reversion rights, like returning rights to creators, because that is, it's a great way of not only giving them a new opportunity to get paid, but by freeing those rights up, especially if they haven't been with the word being used is by promoting more opportunities for access. And so when I started working on that, and particularly in the context of the book industry, the publishers came out and said, Oh, don't worry, your pretty little head about that. It's all tight, you don't understand how it works. It's all taken care of by the contracts, which we knew wasn't true, because we've been talking to authors associations in a bunch of different countries who were telling us that the contracts are a disaster. And so we did a study, we persuaded the Australian society of authors to give us access to the archive, we spent a year analyzing half a century of publishing contracts, and putting out research that showed all of the bodies that were buried in there, right. And so the publishing industry could no longer argue that it was all taken care of by the contracts. So they changed their messaging. And they said, Well, these these, okay, but Alright, maybe it's not taken care of by the contracts. But there's no market for these rights and reason, no one's using them because they're not worth anything. And so then we thought, well, let's create a market for it and see what happens. And so that's how we came to start our publishing house. It's called untapped, the Australian literary heritage project. And I've been working with my team, I've got cultural economists and the literary sociologist, a publishing partner, and we partnered with libraries all around Australia. So we raised the money to, to digitize these books, and to hire someone to work with authors to clear their rights. So x is we've got 161 books in the collection.
We were planning to just make them available digitally. And like, obviously, what's often missing when an author gets their rights back through and out of print, cause what's missing is that the publicity element, right, it's gonna sink like a stone if nobody knows about it. But we will partner with our libraries will licensing the books into libraries. And they weren't providing the publicity and like advertising them to readers, and so on. We were doing a whole bunch of this was ended a whole bunch of things, what we wanted to do, we did want to study the difficulties, authors faced exercising those contractual reversion clauses, we did want to see what is the economic value of reversion rates. But also I work a lot with libraries and E lending. And we wanted to, and Amazon has been whispering in publishers ears that they should not license their books to libraries for a lending because it's hurting that business. The only one that has got the data around, this is Amazon, and they won't share it. And so we were not surprised by citing the publishing house, we had access to the sales and lending data on that side. And by partnering with the libraries, we've got access to the lending data on that side. And so the cultural economists are gonna be studying what is the economic relationship between library lending and book sales? And what is the economic value of library promotion of books. So we, in terms of the economic value of our voting rights after we did put this collection together, and it was a beautiful profile about it in The Guardian, and then the CEO of Australia's largest bookseller, and that now was getting into publishing, emailed me and said, This is amazing. We've been trying to do this, but it was impossible. And we entered into a deal with them to sell them the print, right. So our authors all got like a fat new advance, really nice royalty structure. And that will come out in print in the next setting this month, over the next couple of months, which is super exciting, as well. So all of this, I suppose is just to say like if we want to actually, we can see the potential here, right? If what we really do want is to incentivize not just the initial investment in works, but also their ongoing availability, right. And you need to have mechanisms to actually like within copyright, to actually make sure that that happens, right. And I think that really critical to that. And really critical as well as taking creators right seriously, is allowing them to have more control over what happens to these works. And I think in the EU in the digital single market directive, they've got a really important article that requires them A member states to award use it or lose it rights. Like if a work is no longer being commercially exploited. Right? The creators should be able to get that back. Your questions? Yeah.
Jessica Silbey 35:10
Do you think though that reversion rights would be necessary if copyright just lasts a shorter period of time, it's a part of this is about whether the author's still own the copyright, the duration, or whether we should just like, cut the term in half. Yeah, well,
Rebecca Giblin 35:24
so what I think we should do so even in half, though, it's way too long. Way too long for achieving this. And so I wrote
Jessica Silbey 35:32
a paper called a solution to a problem that is, yeah,
Rebecca Giblin 35:35
yeah. So I wrote a paper coated mediacopyright bug, and that was really directed at this issue, like, what do we do? What do we do in order to better achieve the incentives and the reward themes? Because even in the US Constitution does talk about promoting the progress of science and the useful arts, right, Jane Ginsburg and others have really persuasively demonstrated that those more sort of naturalist considerations about like the, you know, the moral reasons why we feel like we want to reward creators are very much permeated both legislative interventions in this country and also judicial. And this is why those, those motivations are really powerful and effective, which is why whenever there's arguments for greater copyright reform, it's not the Recording Industry Association of America saying, because we would like to have more profits, please. It's them holding the Creator print fund, but look at the starving artist, right? Shouldn't we shouldn't we give more money to this dubbing artist? One of the one of the analogies we use in the book there, right? Is okay, you send your kid to school and everyday at the school gate, there's a bully that shaking them down for their lunch money, right? Is the solution to give them more lunch money? Okay, well, no, but what if the bullies like launched in global campaign saying weren't somebody think of this the hungry schoolchildren, you're still not going to solve that problem by like giving them more lunch money. But with copyright, that's exactly what we do. If we really do care about recognizing and rewarding creative contributions, and we need to find ways of securing that lunch money to them, instead of allowing it to be taken off them at the school because somebody has to pay somebody, somebody has to pay. So what I argue is like, when we look at the economic theory around what is necessary for incentives, 25 years is plenty, right? exclusive rights. So after that everything beyond that is justifiable only by those rewards and recognition. rationales. So after that, it should go to create this. And if the creators are not interested, then it could be it could go into the witch creators
Jessica Silbey 37:37
not going to be interested in having copyright. But
Rebecca Giblin 37:42
like this, so many, so many times, how many photographs have you taken? And I
Jessica Silbey 37:47
don't know. But so this this is this in the, in the interviews that I've done, you know, the tension is often between, you know, I want to be able to pass on my copyright to my to my heirs, for example, this is something that is going to sustain me in my retirement. So it's not like they don't want their company, right. Yeah, they didn't
Rebecca Giblin 38:05
want their valuable ones, right. But they're probably not gonna mention every single company, right? Like,
Jessica Silbey 38:09
maybe it's the valuable ones that we all want also, exactly, yeah. And so
Rebecca Giblin 38:12
for these, what I say is that, like, I'm what I argue in the papers that will after 25 years, then it should revert back to the Creator. And they get to decide how they want to license it ongoing, right? It may be that they want to like license it back to the same, the same publisher or record label that they've had before. But then that publisher, a record label has to make it competitive, right with the other potential offers. And if we have a system like that, you know, we wouldn't have the state that we're in now, for example, where you've got the majors, who is still even though they are, they're nowhere near as abusive as they were in Prince's day. Because since the the advent of digital technologies in the internet, there are genuine other choices that have forced them to reform their current practices, not their previous contracts, and offer better deals to create us today. But there's enormous reservoirs of copyrights that lasts for so long. And as we see, they're determined that you can't even terminate their resisting or terminations even though that that that stolen law was rolled back. They are doing this in a way that allows them to shape the future of of streaming markets that the future of recorded music, if you did revert rights regularly back to creators, right, you wouldn't have these companies that had so much future power, and that would really help open lightning strictly.
Jason Schultz 39:30
So I want to give some time to some questions in the audience. So
Rebecca Giblin 39:33
I only answered it very long today. I'm very sorry. That's great. Just one word yes or no from now on.
Jason Schultz 39:40
But it's also like, this is the preview of what you get from the books, which is great. So yeah, right there, and then we'll go right there.
Unknown Speaker 39:46
Yeah. Thank you for the excellent presentation very much. Appreciate it. So I'm a musician. I've been in and out of the music business for about 20 years and now I'm a music lawyer. So you're very much speaking my language. I also kind of disagree On a couple of things, but to me, the Year Zero of the present day music industry was when Napster hit basically, you have pre Napster and then you have post Napster. And as you said, with technology, right? There's there's three main phases of music, there's creation, there's distribution, and then there's enforcement and collection, creation costs way down, distribution costs way down. enforcement costs way up very hard as you're saying to enforce, to collect money for the creators or whoever owns the copyrights. So to me, that's the challenge, right? Because as part of the choke point, because so before it was major labels, now, it's partly the streamers it's also deal with the publishing houses that own the the composition rights, and the collecting societies, too. Right. But it's also created this whole hazy middle ground of intermediary players like, Hey, I'm a producer, I have one hit Penny 15, grants producer track, well, artists now have to pick and choose ala carte, or are they going to side with a major that does everything? Are they going to try to do bits and pieces themselves? Are they going to try to outsource bits and pieces to other third parties. And to me, that's the scary part. Because creators, by definition, are generally not great business people, they're not thinking of these considerations and not thinking of the legal implications. They're not thinking about copyright. That's what they used to leave up to the majors or their managers or their lawyers, right. But now, they don't have that it's too expensive to get all that now. And so they're stuck in this weird middle ground with a bunch of snake oil salesmen trying to convince them, hey, come give me 10% of your copper and give me 50% of your copper. And I'll do this for you, you know, if that's not working, I also agree that the old way, it was very top heavy, also didn't really work for the creators. So to me, the challenge is enforcement and collection, we need bodies of law, that are easy to understand, easy to replicate, and easy for, you know, our solo practitioner, you know, easy for someone like me with minimal resources to help my clients figure out how to enforce not just in America, but all around the world. And that's the challenge. So I'm just
Jessica Silbey 42:14
like, are you talking about enforcing infringement or better bargaining deals for the for the transfer the copyright for the musician,
Unknown Speaker 42:21
just literally, I, you know, I put a song out there, I want to collect something from somewhere, often the consumption of it,
Jessica Silbey 42:28
auditing, auditing, the royalties that are coming in, for example, right that
Unknown Speaker 42:33
you've got your ASCAP BMI, you've got your song, trust that guy, savage chain, but it's what are they really doing? And do they really have any control over Spotify? Or Apple Music? They don't right now. And that's what I think is that
Jessica Silbey 42:46
musicians don't have control over Spotify? Or what do you mean,
Unknown Speaker 42:49
the the bodies that are tasked with regulating and making Spotify pay their fees?
Jessica Silbey 42:56
So I always have a question back to the musician, if I was interviewing you, so what would be a better system not so your work, you're trying to fix an existing system that is profoundly broken, and then has all these legacy vestige problems with it in a time that was built at a time before we had all of these technologies? So if your goal is to make music and have people listen to it, to be known for it, and to make a living doing that, if that's I'm just gonna assume that's one of your goals? Can you imagine a different system that accomplishes that outside our current intellectual property system? I mean, what would it what would it need?
Unknown Speaker 43:38
It would need to be more all encompassing, in terms of allowing the musicians to understand the various revenue streams and how they actually function. For example, the prince story about owning your masters. That's just a piece of it. The composition copyright, in my opinion, is way more powerful. And way more valuable than the sound recording copyright. Yeah, my clients who are artists, that are the creators, they don't even know there are two copyrights. They just they hear that they know, oh, and your master and your master. So they get into deals with producers. And the producers are like, yeah, masters work for hire you own that. What about the song? Good, we're ready. Don't worry about that. We can do that in the future.
Jessica Silbey 44:15
But this is the this is the complaint about our tax system. It's our complaint about our health system. It's the complaint about the over complexity of things that everyday people need to do, like pay their taxes or understand tax consequences or get decent health care. This is a mean, what you're describing with the IP system is a thing that is being described, described and complained about in a lot of other places. So that's part of what the book is about is that this is a current debate that we're having through systems and institutions. And so when I asked you to reimagine I really want you to, like some part of me thinks is like, let's Congress can do can can sunset copyright and patents tomorrow. Like that's obviously not going to happen, but they could and I gotta believe I think music is going to be made and I think people will be paid for that music I think we could start over again. I mean, that's not going to happen. But that is the kind of creative thinking I think that musicians, for example, and people in collectives need to start thinking about. So when Prince just did a little tweak, but the folks who are, you know, doing completely different business models to produce art and, and innovation, I think those are the folks we want to pay attention to, because they're coming up with really different ideas.
Unknown Speaker 45:22
Very interesting about NF T's in that regard.
Jason Schultz 45:29
I want to give you a chance, and then I want to get to another question
Rebecca Giblin 45:31
and answer this as quickly as I can. So we get much more into all about reimagining or worried about code. What if we could reimagine copywriters? It's like, let's start right from scratch. But in this book, we get like right into really practical things. There's like we need to reform the collecting societies, there is an incredible amount of leakage happening down here. It's wildly inefficient, effective, every country has its own, sometimes multiple blacking societies, multiple databases, they can't even identify Beyonce, It's bonkers. We need to fix that. We need to fix audit rights, which we can do very easily, even just changes in state law in Washington State, California, New York, instantly, we can change the way that gets money into creepers pockets by giving them better rights to audit royalty statements, more transparency. And we need minimum baseline rights to support creators because everybody's in the same boat. It's not just musicians, right? You shouldn't be regardless of what your contract says you've got a minimum baseline that everybody knows it's at least this right, there's a three things that we can do right now, if we had the incentives, right, if we demanded it.
Jason Schultz 46:31
That's great. Okay, so here's what I'm gonna do we have six minutes left, I'm going to take questions from the two of you, and then you guys get the rest of the time until 131 isn't too so each of you ask your questions at one point? And then sort of question can you make it within a minute or two?
Unknown Speaker 46:49
My point is that just as last book talked about the glory, or, you know, the feeling of accomplishment? In other words, it's not about the economics. It's about, Oh, I did this. And that leads to my next question, sort of examples of pharmaceuticals, and the motion picture industry. And you use pharmaceuticals as an example. There's a lot of interesting economics there where, like, Joseph Stiglitz is explored, like price discrimination is what what it's called in economics where the whole question of you creates an mRNA vaccine, or AIDS drugs? How should those be priced? Clearly, you know, you can have a higher price in the Global North and Global South. That's one. That's one sort of industry question about how you see that. The other is the motion picture industry. And what Disney did was like 20, or 25 years ago, where they just bought a land grab of doubling, I can't remember how much how long they were able to extend their
Jessica Silbey 48:12
20 years was just money just for this character. They did it for Steamboat Willie. Yeah.
Unknown Speaker 48:23
So that they get appropriate, extend the revenue streams, and that doesn't build they're all the Creator, like creators away dad, you know? The Creator basically has no, you know, it's like work for hire. There, they assign their ownership to the corporation.
Jason Schultz 48:45
So I can stop you there, I'm going to take your question, then the two of you can respond. So thinking a
Unknown Speaker 48:51
lot about kind of modern age, NASA disrupted a lot, you know, we've got a lot of we've got, I'm thinking about the United masters and kind of their approach is kind of an intermediary, but also the fact that they're backed by some of the largest tech funds that are out there, and you got to have a putting dollars behind them. a16z putting dollars behind them. And I'm thinking about kind of their incentive and almost imagining them as a player similar to what the large scale industries were back in the day. And so I guess I'm curious to get your perspective on what would amount to one of my favorite quotes related to music, which is the who meet the new boss, same as the old boss.
Jessica Silbey 49:38
So I'll just be really quick because we only have three more minutes, but I'll say part of what I think Dylan you're talking about is the difference between corporate incentives and human incentives. And I had a hypothesis in that first book, and he recommended that I was going to hear two different stories from companies talking about themselves as companies versus individuals who were taught and that did not happen. That wasn't exempt. So you corporations, corporations can't speak for themselves. Humans speak for corporations. But the folks who are in charge of the bottom line and corporations sounded a lot like the individual artists and bench scientists in terms of what they cared about what kind of reputational interests they had. And so. So I think that I think that if we're talking about who pays and who benefits from these innovations, it who does the work? I just, I think that there are lots of other countries around the world and a lot of other systems we've had that are not structured like ours that produce exceptional innovation, and creativity. And I just don't think we should think that this is an inevitable structure that we have today at all. And I don't think we should think that corporations exist only for this bottom line, or recuperation of investment. That turns out, I think, to be a much more complicated story. And I think we should embrace the complexity, not always, but for that purpose, to understand that, that, that that kind of economic economics to justify shareholder value, for example, is really an overdetermined is part of an overdetermined. And part of the problem.
Rebecca Giblin 51:11
And we jump into the question of the back then, like, I think that's exactly right, the new bus is exactly the same. So we definitely in the book, we make this really clear, we didn't romanticize this period, like this period, with the advent of the Internet, there was blood on the wall, so many people just instantly lost their livelihoods. And it's taken such a long time to find a way to make the industry pay again. And even then it's only paying certain people and in a really limited way. But what what we do point out is that that did widen out the the true point that the major labels had at that point, and did force them to reform some of their most abusive practices. What we're seeing now, though, is a re truepoint, if occation. Throughout these markets, where you do and this is where you know, the chapter that we have on why Spotify wants you to rely on playlists, for example, like to see this is playing out in real time. Right now, Spotify wants us to delegate to ears, the decisions about what we put into our ears. So it's not about the artist at all, it's about do you want, you just want to listen to rap caviar, like, we'll give you the best slash, the stuff that we're getting kickbacks to pay, or that we're getting like to pay reduced royalties on are a mix of the two in order to make our revenue base more sustainable. If you just don't worry about choosing the actual artist you want to listen to and let us decide for you. It's incredibly, incredibly dangerous. And it's exactly the same playbook as what we're seeing with everyone else, this, this aim that you lock in, you're locking users. And then by doing that you lock in create, so you lock in your audience and then by that you locked in your, your, your creators because they've got no other way to reach that audience without you. And then that allows them to shake people down for more and more value. So that's what I think, you know, one of the aside, did you want to
Unknown Speaker 53:03
add to that point that anyone's trying to get Drake tickets for this Apollo Sirius XM collaboration, they do everything short of draw blood to get you to sign up for their new streaming service. Yeah, in order to access the potential TV, get into the theater, and I'm gonna get your puppy blocks.
Rebecca Giblin 53:20
It's a Live Nation thing. But I've got to say the chapter on Live Nation is wild. Like, for those of you who don't know about this, like, we interviewed so many people for this book, we always give them the opportunity to be like, pseudo anonymous or anonymous if they wanted to, basically, no one took us up on it, except everyone we spoke to about Live Nation who would terrify
Jessica Silbey 53:39
I have same experience with Getty Images. Oh. Yeah, I just I want to say, so there's a tension between the artists, we're talking to the artists versus the corporation or the platform, I think part of what we have to realize we're talking about is not a dichotomy between individuals who have freedom to do whatever they want. And big companies, we're talking about governance structures, we're talking about fair, transparent, accountable governance structures, like we have to live in a community, we rely on other people to do things for us to work together, we're going to offload our copyrights to other people like the quiz, this is a question of reimagining how the governance of these things work, which is about law, right? It's not about just everyone for their own, you know, right in which it makes it, it makes it feel like that because those structures are so non transparent, but that's really what we have to be thinking about is governance mechanisms, better governance mechanisms.
Rebecca Giblin 54:33
Yeah, absolutely vote. So we mostly talked about the problems today but like I said, our second half is all about the solutions. How do we wait in these things out so I'm just gonna give you a couple more chapter headings. So you know, what's their transparency rise, collective action, time limits on copyright contracts, radical interoperability, minimum wages for creative work, collective ownership, and uniting against checkpoint capitalism, because if If we're going to make change, we're going to have to do it by doing it after title. So
Jason Schultz 55:03
I'm just going to ask you to hold up your book. This book here. Let's thank Rebecca please buy the books and hopefully the library
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