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Music in the digital era: from Copyright to Creative Commons

The spreading of information and communication technologies in most aspects of the social and economic activity has brought to the rapid digitalisation, not only of tools, but also of contents. It progressively affects in depth our society’s modes of production and consumption. The explosion of documents, song and film downloads through peer-to-peer technology1 provoked a major shock for the publishing and audiovisual industries, and radically questioned their operating model. At a technical level, the DRMs2 counterattack was soon abandoned except for ebooks, while at a legal level solutions such as the «graduated response»3 in France or the UK did not reverse the trend, at least not as to sustain the traditional creation/distribution model.

Does that mean that the idea of authorship is threatened in its very foundations by the spreading of digital technologies? The movements that advocate for a more open vision of intellectual property, like free software licenses or Creative Commons, propose to create an appropriate legal framework for authorship rights rather than denying it. It is only the authors who are to decide the rights and obligations of those who will benefit from their work, choosing the terms of the contract, which can range from the traditional closed copyright to the complete cession of their rights to the public domain.

Instead of manning the battlements of the old conceptions, it is better to recognise the limits of the old economic and institutional references and to think of new economic models, legal frameworks, institutions and statutes.

In a way, the musical industry understood this and has revised the foundations of its business model. Yet, these changes bring an increase of the musical offer in terms of variety that opposes to the taste homogenisation desired by the star system shaped by the majors, which still concentrate most of their revenues in a small number of artists. A more open approach to copyrights such as the one suggested by Creative Commons should take part in the emergence of this new offer.

Music-making in the eye of the storm

The musical creation world has suffered deep changes concerning production as well as the distribution and diffusion of works. To begin with, it is possible for almost all individual and collective artists to quite cheaply acquire all the necessary equipment to record songs, work on them and produce an album. DIY production is accessible to all. Then, when it comes to diffusion, the available tools on the Internet allow artists to reach a wide audience, provided that they are able to trigger a buzz, that is, a chain reaction in the audience, the foundations of which are by now only partially known and mastered. The pioneering times of peer-to-peer sharing services like Napster and host platforms like Myspace have given way to streaming sites, that is, online listening, social networks and legal paid or free download platforms like Jamendo. We have gone from a star system to one with an offer overload. In other words, listeners will be able to differentiate their tastes and take advantage of an extremely diversifying offer, lest they can benefit from the appropriate tools to explore the immense variety of artists and works. This is one of the reasons why certain musicians turn to online music distributors such as French Believe once they have produced their music, in order to benefit from their promotion and distribution networks.

The model of creation and that of the musical industry have been questioned at all levels of the sector. In the early 2000s, record labels saw a brutal decline in their CD sales and revenues, which constituted their biggest source of income. Nonetheless, after the shock, at least the majors were able to go back to their profit levels or even increase them, as was the case of Universal.

Universal’s profit developments (US$ millions) Source: Chantepie and LeDiberder (2010)


A new economic model

The majors did not misunderstand the reality of the stakes. It is true that they made great efforts to obtain from the governments legal devices that reinforced their rights and allowed them to attack those who infringed them. Yet, they also realised that new sources of revenues should be found in concerts4 and shows and in the sale of derived products, and soon adopted the so-called 360 degrees strategies, which do not overlook any potential source of revenue. That is the foundation of the «Bowie hypothesis»: performances, not recordings.5 According to Bacache et al. (2009), since the late 2000s 78% of the artists6 obtained revenues from concerts and shows, and these revenues were the main source of income for 60% of them. Besides, Bacache et al. (2012) show that, among artists with contracts, tolerance to piracy grows in direct relation to the size of the share of their revenue they obtain from concerts.

Another consequence was the development of a new approach to music consumption. The traditional copyright model, that is, the right or rather the prohibition of copying was superseded; we moved towards a fluid society. Philosopher and sociologist Zygmunt Baumann theorised about this notion reflecting about the metaphor of the liquid society, in which flexibility, mobility and speed are the main characteristics of social phenomena. In what regards music, but also films and series, the exponential growth of the possibilities of digital distribution thanks to the Internet and cell phones paved the way to ephemeral forms of consumption and demand.7

Thus, while record companies accepted to considerably lower CD prices in order to revive sales, streaming platforms such as Deezer and Spotify stepped forward as the new essential agents in the musical sector. By assuming themselves the payment of rights, these online listening platforms acquired great bargaining power, and this has deeply transformed the organisation of the musical industry. We have progressively passed from a physical goods economy to a service economy, from a sales economy to a rental economy.

Nowadays, according to Global Music Report,8 streaming has become the main means of music consumption and the industry economic driving force, with an annual growth above 60% that largely compensated the decline of legal downloads (20.5%) and that of physical sales (7.6%).

A different approach to intellectual property

Nonetheless, some artists have chosen a different way, and they privilege the free distribution of their work. Yet, such an option does not imply the abandonment of authorship rights and can be even based on an economic rationale. According to a survey by Bacache et al. (2009), whilst 58% of the artists consider that piracy had a negative effect on their record sales, 35% think that the Internet contributed to increasing their live audience. A 2004 survey realised in the US among 2,700 musicians, authors and performers (Madden, 2004, quoted by Curien & Moreau, 2006) showed that 21% of them considered that peer-to-peer exchange had increased their CD sales whilst 5% considered the opposite, and two thirds thought that peer-to-peer networks were not a serious threat to the industry. In the case of the famous Radiohead example, the free online distribution of their new songs did indeed boost rather than curb the sales of the album.

Creative Commons offer a set of licenses that were conceived to allow the authors of creative works to give their productions less restrictive conditions than those provided by the standard copyright frame. They were created in the US by a group of people lead by Lawrence Lessig, an expert in constitutional and intellectual property law and an MIT professor (Lessig, 2004). Many online platforms suggest creators to license their works under Creative Commons terms. When it comes to photography, Flickr suggests either CC or Copyright. Youtube also allows users to license their videos under CC licensing. However, in the music sector, Jamendo, who claims to be the number 1 free music platform, imposes Creative Commons licenses and artists can chose the protection level they consider adequate.

Illustration by Renaud Helbig (CC BY-NC-SA 4.0)
Illustration by Renaud Helbig (CC BY-NC-SA 4.0)


Creative Commons terms include four elements that can combine into six different licences.

As the BY clause is common to all the licenses, the main choices refer to NC and ND. Six possible licenses derive from the interaction between these two rationales.

Not NC
NC
Not ND
BY
BY-SA

BY-NC
BY-NC-SA
ND BY-ND BY-NC-ND

Jamendo: a new model for musical creation?

Jamendo (https://www.jamendo.com), an online free and legal music streaming and download service created in 2005, that boasts more than 40,000 artists and 400,000 titles, proposes musicians a new economic model. On the one hand, it uses Creative Commons licenses as a means to ensure the best diffusion conditions for the works, and to reconnect with the idea that the social value of artistic creations derives from the audience rather than from the commercial value attached to the copyright principles (Zimmermann, 2015). On the other hand, the artists who desire so can receive compensation in case of commercial usage of their creations thanks to Jamendo licensing, which sells usage licenses at very good prices.

A survey based on a sample of 767 artists (individual musicians and bands) using Jamendo (Bazen, Bouvard and Zimmermann, 2015) showed that 22% of the groups and 18.5% of the individual artists were professional musicians. The still small presence of professional musicians shows in fact that the change that free music represents does not imply the deprofessionalisation of the sector but corresponds to a new model under development.

From the outset, Jamendo’s approach is placed in an attention economy kind of problem that brings us back to the matching between individual preferences and a quantitatively excessive offer. With Web 2.0, in which users became content producers themselves, and the platforms like MySpace, which very openly hosted musicians, the offer spectacularly multiplied. The audience statistical distribution seems to progressively look similar to what is called a long trail (Anderson, 2006): besides great stars, there are many artists with modest but real audiences which have a weight from the general perspective. If stars stay at the centre of the majors’ economic models, the problem arises of how to match the enormous offer and the consumer’s variety of preferences. Since we speak about the Internet, we evoke the buzz phenomenon. However, in spite of some famous examples such as the French Kamini9 or the world hit Gangnam Style,10 spontaneous and auto-organised buzzes remain the result of improbable events, and that in the case they are not directed by record companies as a marketing tool.

Within such long trail context, the matching between artists and their audiences remains a critical issue, and the tools provided by the platforms that host the artists have a key role to play. Jamendo allows its users to explore its catalogue by genre, with the help of themed radios and spotlighted releases. Jamendo also exploits its social-network dimension by giving its own users the role of listener-influencers through the publication of their favourite music, which allows navigating through individual connexions (if A likes the song I like, I may like their other favorite songs).

In the previously quoted survey, 67% of the artists declared having chosen Jamendo because the platform uses Creative Commons licenses. More than 60% of respondents adhered to the sharing vision implied by CC and more than 50% state that CC will play a central role in the future of musical creation. Leaving Jamendo aside, Creative Commons pave the way for another way of creating, diffusing and listening to music. Are we nearer the origins?

Bibliography

Notes


  1. Peer-to-peer technologies (P2P) are sharing technologies that allow participants to access a specific piece of data from other participants while allowing them to access their own data. More broadly speaking, P2P technologies allow a wide range of sharing forms, such as the distribution of software and computing resources. 

  2. Digital Rights Management (DRM) programs are embedded in certain digital contents (songs, films, books…) in order to prevent their copy to another support. 

  3. The graduated response system consists in addressing offenders a series of warnings before contemplating legal action. 

  4. In this new model, we observe that the demand has little effect on the prices and that fans accept to pay higher and higher fees for tickets (Krueger 2005). 

  5. According to Professor Krueger, David Bowie was the first to identify this trend when he declared to the New York Times in 2002 that «music itself is going to become like running water or electricity». Bowie advised fellow artists to «be prepared for doing a lot of touring because that’s really the only unique situation that’s going to be left» 

  6. The survey was carried out in 2008 on a sample of 4,000 ADAMI (a society for the collective management of artists’ and performers’ copyright and intellectual property) associates. 

  7. Given that the listening or viewing of a piece does not require its durable presence on a physical support. 

  8. http://www.snepmusique.com/wp-content/uploads/2017/04/Global-Music-Report-2017.pdf 

  9. https://en.wikipedia.org/wiki/Kamini_(musician) 

  10. https://en.wikipedia.org/wiki/Gangnam_Style