Copyright law has been in a constant state of flux since it was first introduced several centuries ago. However, nothing has challenged this area of law quite as much as the technological advances over the course of the last several decades. Advancement in media technology, more specifically, has challenged the way in which the law safeguards the copyrights of musicians, filmmakers, and artists. This research paper will look at the current state of affairs between copyright law in the United States and modern media technologies – more specifically, Amazon Prime, Netflix, and Spotify. These streaming and on-demand services have made leaps and bounds in the media world over the past half-decade; but has copyright law been able to keep up with these strides in technology? The recent news story regarding Taylor Swift’s challenge to (and victory over) Apple regarding its new Apple Music service exemplifies the answer to this question.
In answering this question, the research paper will address three specific aspects of the topic: the current literature on copyright law and technology in the United States, an overview of current copyright law (specifically as it relates to the services mentioned above), and a case study analysis of Netflix, Spotify, and Amazon Prime. Ultimately, the research paper will argue that, while copyright law has been adapted to technology in the past decade, it has not been able to keep up with the rapid changes in media technology, leaving a gap that must be legally addressed. In addition to this main argument, the research paper will conclude with suggestions for policy implications and future research. The paper will first turn to a history of copyright law as well as contemporary literature on the topic, and subsequently turn to contemporary understandings of the legal subject The paper then turns to an overview of each of the case studies forwarded above, discussing both the technology of each business and how it relates to copyright law. The paper then synthesizes these sections into an original discussion that rationalizes the thesis and forwards three specific shortfalls of modern copyright law as it relates to the streaming media technologies discussed throughout the paper. While this paper is certainly not exhaustive on the topic of copyright law, the application of specific case studies ought to provide further insight into how the legal subsection applies (or falls short) in the modern technological context.
Overview of Copyright Law
The issue of property rights is certainly a broad term, and can include many different aspects of the legal system. However, copyright law is a specific subset of intellectual property law, and has come to encompass books, music, artwork films, television, shows, and even programming languages and websites on the Internet (Samuels, 2000). However, before turning to contemporary understandings and applications of the legal subsection, it should prove useful to address an overall history of copyright law – that is, how it originated and how it has developed since.
The first copyright law can be traced back to England in the 18th century – and similar legislation requiring the protection of works and their authors began taking root in other countries by the end of the century (Rose, 1993). After this point, it is difficult to define the history of copyright law in any particular set of developments of legislative processes. However, one major development wwas the Berne Convetion, which took place in 1886 (Samuels, 2000). This convention created a treaty that required signatory countries to recognize copyright protection across borders. Since the United States signed the treaty in 1989, the majority of the world’s developed nations adhere to the convention (Samuels, 2000). In addition to the international protections, the Berne Convention required the protection of created works even if they were unpublished. After the signing of this treaty, the next major development relevant to this present discussion was the creation of the No Electronic Theft Act. This legislation set forth specific penalties for financial gain through the infringement of copyrighted works – including electronic reproduction and distribution (Samuels 2000). This legislation forms the basis of many litigation cases brought forth in the last fifteen years of copyright history, which continue to shape the copyright landscape and the actions of electronic giants like Netflix, Google, Apple, Amazon, and Spotify.
Literature Review on Copyright Law & Technology
At first glance, copyright law may appear to be a cut and dry case of legal rights – if an author creates a work, they ought to have full disclosure over the use, distribution, and profit of that work. However, as with many things in this world, this is often not the case. The last decade has made the issues associated with copyright law even more complicated – products like the iPhone, Kindle, Amazon Prime and Spotify have all been introduced in the last ten years. Therefore, it is important to turn to the relevant literature on the interaction between copyright law and technology. There are several different perspectives in literature relevant to this discussion.
First of all, nearly all of the literature confirms the contention from above that technology has had a profound impact on the realization and enforcement of intellectual property rights. As one report for the US Congress found, “Technology is making it cheaper to copy, transfer, and manipulate information and intellectual property. Decreasing prices and increasing capabilities of information systems will permit more people to make use of more works” (Goldstein, 1986, p. 97). While the sentiment is certainly relevant, what is most interesting about this excerpt is that it was published nearly thirty years ago. One can certainly see how technology has adapted to make copying transferring, and manipulating intellectual property even easier in the interim. This same report also concludes that technology has made these processes faster and more private (Golstein, 1986). As the report concludes, “Together, improvements in the cost, speed and capabilities of information technologies are making traditional proprietor-initiated (civil) enforcement largely ineffective in securing reasonable control over public distribution of intellectual works” (Goldstein, 1986, p. 97). In other words, there must be an official, legal, and enforceable response to the changes that technology poses to copyright law. A more recent report also supports the contention, stating that “the spread of computing and the Internet have made it difficult to apply traditional intellectual property laws” (Roman, 2004, n.p.). From the start, it is clear that change is needed.
Second, it is important to note that copyright law has traditionally favored the creator of the copyrighted work – as it should. However, this has become increasingly important in the digital age, where it has become more difficult to prove copyright and ownership – and even more difficult to track where one’s copyrighted work is being used. As one scholar concludes, “Copyright law regulation, even though laid between protection of authors and promotion of creativity and knowledge, inclines to regulate by giving primacy to the creator or more precisely, owner’s rights and needs. Finding us in the oft-referred state of digital economy this becomes even more of an issue” (Mandic, 2011, p. 11). Two other authors conclude that solutions that favor the creators of copyright are created for both “ideological and financial reasons”, which creates the basis for the justification of copyright law (Burrell & Coleman, 2005, p. 117). Therefore, any adaptations of copyright law in the face of changing technology ought to continue in this vein.
Finally, some scholars have forwarded the idea of ‘balance’ in copyright law. As one author states, “Debates currently surrounding the conundrum between the copyright and technology are persistently antagonistically situated” (Mandic, 2011, p. 1). More specifically, these debates deal with disagreements “between the interests of authors versus those of the society; between producers and consumers; between private and public domain” (Mandic, 2011, p. 1). Therefore, some have forwarded the notion of copyright legislation that balances between these apparently opposing interests (McJohn, 2011; Beckerman-Rodau, 2011; Mandel, 2011). This perspective is based on the idea that the prerogative or scope of copyright can be limited, and that the advancement of creativity in society is just as important as the ownership rights of creators. While certainly not exhaustive, these various perspectives inform the subsequent discussion of copyright and technology.
Case Studies in Technology & Copyright Law
The literature discussed above makes it clear that media technologies have had a profound impact on copyright law and intellectual property more broadly over the last several decades. However, this impact has been ostensibly greater in the last few years specifically, with a complete shift in the way that the average ‘netizen’ consumes media. More specifically, Internet technology now provides users and consumers direct access to nearly every type of media – from online movies, to downloadable music, to galleries of stock photos. There is no question that these technological changes have raised difficult questions regarding how to retain copyrights while continuing to move forward in the technological realm. There are several ‘giants’ of this type of streaming technology that come to mind: Netflix, Spotify, Amazon, and even Apple. Assessing how these media technology services developed – and what function they serve now – ought to provide insight into how copyright law can address the changes in media. Therefore, this paper assesses each of these services in light of both what it offers to the consumer and artist, and what challenges it poses for copyright law.
Netflix & Film Copyrights
Netflix is now nearly synonymous with the concept of online, on-demand media streaming. The company had relatively humble beginnings as a mail service alternative to the video rental stores of the 20th century (O’Brien, 2002). After Blockbuster refused to a deal that would have let them acquire the business, Netflix grew exponentially from 2000 onward. As of 2014, the now giant boasts over 50 million subscribers around the world (Lawler, 2014). Ostensibly one of the primary reasons for its popularity is the fact that Netflix offers monthly subscriptions for as little as $8 – and caps out its premium subscription at just $12 (Netflix, 2015). Therefore, it has become an attractive alternative to both physical DVDs and digital pirating. Its initial success has now allowed Netflix to venture into original programming and international expansion.
The current status of Netflix as a behemoth of on-demand streaming media has several implications for copyright law. First and foremost, Netflix is a classic example of the balance of ‘power’ between the copyright owner and the copyright users. As two scholars state, “The primary poles of interest are the production of copyright content, on the one hand, and the use of copyright, on the other” (Wilkof & Basheer, 2012, p. 50). Second, Netflix’ entire business model has challenged the established norms and laws of copyrighted media. The company offers its users literally tens of thousands of titles (both television and film) at the monthly cost equivalent to buying just one physical DVD. This drives down the profit margins for media companies and artists, and requires a shift in the way that these individuals and companies seek to make their money. Finally, the service and technology offered by Netflix begs the question: what next? Now that on-demand media streaming is now an established norm, will users want to be able to download titles for offline viewing? (Roberts, 2015) The answer to this question seems to be a foregone conclusion, and certainly poses an issue for the future of copyright law, as will be discussed below.
Spotify & Music Copyrights
Spotify has become another major service in media streaming. Founded nine years ago in Sweden, the service is now available in the Americas, Western Europe, Australia and parts of Southeast Asia (Spotify, 2015). The platform offers hundreds of thousands of albums and tracks, which can either be browsed or searched according to artist, album, genre, and even individual, user-created playlists (Spotify, 2015). The service has two ‘tiers’ in its service. The ‘freemium’ version offers free browsing and listening, with audio and visual ads inserted into the listening experience. The paid version (which sets users back just $9.99 per month) removes these ads and improves the overall audio quality (Spotify, 2015). In short, Spotify is essentially the music counterpart to Netflix, which makes it an interesting case study in the interaction between copyright law and technology.
According to Spotify’s copyright policy, the company “respects intellectual property rights and expects its users to do the same” (Spotify, 2015). One of the largest impacts that Spotify has had is a redefinition of the copyright market. Instead of focusing on the artist and the labels or producers, Spotify has turned the focus to the consumer. As the International Music Managers Forum wrote in an open letter to a European Commission on copyright law, “Copyright markets need to function efficiently in the B2B (creator to intermediary) phase, and not only in B2C (intermediary to consumer terms)” (IMMF, 2015, n.p.). In other words, the Forum is concerned that services like Spotify have taken an artists’ interests and earnings out of their hands, as Spotify primarily deals with labels and producers, rather than individual artists. Entities like this one argues that there must be a change in copyright law to account for changes in media technology. This is further exemplified by the continued meetings of the House of Representatives subcommittee on music licensing. This subcommittee is continually bombarded from all sides from players in the field: “the Recording Industry Association of America – the industry’s powerful lobbying arm; online streaming services such as Spotify, who are largely set to defend standing copyright law; and music licensing groups, who say major revisions are needed. At the center of it all, both sides are seeking to protect their precarious financial interests in an industry rapidly being reinvented” (Holpuch, 2014, n.p.). In this way, Spotify highlights not only the contention between artists and the copyright industry, but how technology increases this tension.
Amazon & Prime Copyrights
Amazon is another giant in the e-commerce realm. While the company deals with all types of e-commerce, it certainly bears relevance to a discussion of copyright law, given that a great deal of its business stems from online and downloadable media content, such as movies, television shows, music, and electronic books (Amazon, 2015). The majority of copyright related issues for Amazon are in its Amazon Prime service, which now includes everything from free shipping to music streaming services similar to Spotify.
One of the primary problems for Amazon in terms of copyright is the availability of self-publishing in the Kindle store. This feature has allowed users to put up plagiarized books and other works in the form of e-books with different titles than the original (Roberts, 2012). In response to this issue, Amazon has provided an “e-mail address that plagiarism victims can use to demand than an offending e-book be removed” (Roberts, 2012). However, it appears that there is little framework in place for Amazon to address these copyright issues head on – that is, without prompting from the victim. Amazon also faces similar issues as Spotify and Netflix combined, as it offers streaming music and streaming video. However, Amazon has taken a more cautious approach to music streaming due to copyright – when Amazon Prime Music was first released, it only had 1 million tracks – compared to over 20 million on Spotify (Roberts, 2012). Regardless of the number, Amazon also represents a change in the way that artists, producers, and studios manage their copyrighted work.
The above discussion of both literature on copyright and technology laws and specific examples of copyright and technology in action provides insight into the overall research question. Originally, this paper asked how copyright law has adapted (or not adapted) to the rapid changes in streaming and on-demand media technologies. Based on the above discussion, this paper has two insights. First, it is relatively apparent that media technology, rather than media or copyright law, has driven the way in which copyrighted works are disseminated, sold, and made to profit. Second, it is clear that copyright law has a long way to go before it can adequately address the changes in media technologies introduced over the past decade. While these are not an exhaustive response to the research question, they do summarize the main issues in the relationship between copyright law and media technologies. Each of these is examined below.
While the review of literature relevant to copyright technology reveals a general sentiment that technology has had (and will continue to have) a profound impact on copyright law, the point is further underlined by the specific media services examined above. On-demand and streaming media services have already begun to shift the way in which the majority of the population consumes media – whether it is television shows, movies, or music albums. Therefore, it is clear that copyright law must adapt to meet these changes, rather than the other way around. Technological change will not wait around for legal prerogative. Instead, technology in this area has historically pushed the envelope, and is likely to continue to do so. Second, while this paper was not able to address existing copyright law in depth, it is already clear that the existing laws (both in the United States and internationally) must adapt to these changes. This is not to say that these laws are completely irrelevant. Instead, legislators and policymakers simply must be sure that existing legislation adequately protects the interests of individual artists, as well as the ability of consumers to access this media in a legal way. What these changes will look like in the future is another question altogether.
This short research paper has examined the current state of affairs between copyright law in the United States and modern media technologies. In addressing this topic, the paper turned to the current literature on copyright law and technology, an overview of what current copyright law looks like, and a discussion of three of the most prominent media streaming services today (Spotify, Amazon, and Netflix). Overall, this discussion served to support the contention that copyright law must change in the face of changing technology, particularly to protect the interests of artists and balance it with the access of the consumer. While there are certainly challenges to this adaptation, the discussion of the current technologies have been beneficial – both for the artist and the media consumer.