Remuneration of Content Creators in the Digital Space: Challenges, Obstacles and a Common Language to Foster Economic Sustainability and Cultural Diversity

Canadian Heritage | Discussion paper, 7-8 February 2019

31 Pages Posted: 27 Dec 2023

See all articles by Giuseppe Mazziotti

Giuseppe Mazziotti

Catolica Global School of Law ; European University Institute

Date Written: February 8, 2019

Abstract

What is the role of remuneration to ensure diversity of cultural creation at a time when access to knowledge, culture, news and entertainment occurs through a great variety of sources, media, technologies and devices? Diverse cultural expressions in musical, cinematographic and other audiovisual works as well as journalism, photography and video games presuppose economic sustainability, at least when it comes to professionally created works. Content creators would not be able to author new works without relying on adequate economic incentives and rewards. Copyright is the area of law and policy where these incentives and financial rewards have been built, traditionally. However, copyright protection is not, as such, sufficient to guarantee economic sustainability and support to diverse cultural creation. Firstly, copyright has become difficult to enforce and monetize, especially by individual creators, in the context of on-demand streaming services and content-sharing platforms and even more so in decentralised forms of content distribution such as peer to peer networking. Secondly, the rights granted under copyright law and the way these rights are exercised via contract tend to protect more corporate interests than individual creators’ remuneration opportunities. Cultural industries gather as many copyright interests as possible, taking advantage of freedom of contract and of their bargaining positions and market power. In addition to that, as the paper shows, the potential ineffectiveness of copyright for the purpose of guaranteeing remuneration to creators and enhancing cultural diversity is related to how today’s online platforms have been desig ned and to the transition from markets based on permanent acquisition of copies by customers to web-based services giving access to repertoires and/or vast collection of creative works for free (as content-sharing or social media platforms do) or a monthly flat fee basis (as in the case of streaming services). In particular, social media and user-generated content platforms have blurred the distinction between professional and nonprofessional works and have significantly weakened creators’ bargaining power.

The paper is structured as follows. Section 1 briefly recalls how the digital world has disrupted the creative industries’ traditional business models and why the process of re-intermediation triggered by the emergence and large-scale diffusion of social networking and Web 2.0 technologies has failed to ensure the creation of appropriate mechanisms bringing fair remuneration to content creators. Section 2 identifies emerging economic challenges that creators are currently facing in distinct digital settings that compromise or weaken (i) their professional recognition, right to paternity and right to control integrity of their works; (ii) bargaining power in online environments where neither content producers nor platform owners know exactly what the value of the content they make available is; (iii) concrete enforceability of their rights in a context where platforms enjoy significant liability exemptions; and (iv) access to rights ownership information and data on revenues generated by online services, given that creators cannot (not yet, at least) rely on technologies and smooth and transparent forms of collective and individual rights management to exercise their rights and to gain fair remuneration. On the assumption that the digital marketplace should ensure that authors make available content representing different perspectives and views, this section focuses on how the above-mentioned challenges impact on diversity of content online and which are the industry sectors where a problem of insufficient remuneration has materialized. Section 3 considers how (i) governments, (ii) platforms and (iii) civil society are addressing emerging economic challenges. In particular, this section draws on regulatory, industry-led and non-commercial initiatives showing how new forms of content licensing, analysis of large amounts of data and use of repertoire databases and content recognition technologies can help right-holders and platforms estimate the (different) economic value of creative content; improve quality of individual and collective rights management schemes and facilitate copyright enforcement without impairing online freedom of communication. Section 4 identifies major obstacles in achieving conditions in which creative labour and its remuneration might regain its centrality. Such obstacles are the uncertain (and possibly low) commercial value of creative content online; the proprietary and dominant (if not monopolistic) character the largest online platforms; the risk for copyright enforcement to impair freedom of online communication; and persisting uncertainties on conditions of access to content ownership information and data streams that would facilitate payment of fair remuneration. Section 5, finally, focuses on international agreements on literary and artistic property whose scope and prescriptive force (especially after the incorporation of the Berne Convention into the WTO 1994 TRIPS Agreement and the enactment of the 1996 WIPO ‘Internet’ Treaties) show an existing and very broad consensus on the need to protect the economic rights of authors and content creators in a potentially borderless online environment. The section emphasizes that, under international agreements, the rationale and values of the 2005 UNESCO Convention on diversity of cultural creations justify a stronger and more intense protection of creators’ right to remuneration from the perspective of support to individual cultural creation. Unfolding the intersection of (still separate) international conventions on authors’ rights and promotion of cultural diversity would definitely encourage a shared global approach to this issue. A transnational solution is also what some policy makers could eventually pursue by exerting their regulatory power or influence on the largest online content gatekeepers, whose territorially unrestricted online platforms could spread out best practices beyond national borders.

Keywords: copyright, platforms, authors' rights, remuneration, cultural diversity, data, secrecy

JEL Classification: K

Suggested Citation

Mazziotti, Giuseppe, Remuneration of Content Creators in the Digital Space: Challenges, Obstacles and a Common Language to Foster Economic Sustainability and Cultural Diversity (February 8, 2019). Canadian Heritage | Discussion paper, 7-8 February 2019, Available at SSRN: https://ssrn.com/abstract=4616133 or http://dx.doi.org/10.2139/ssrn.4616133

Giuseppe Mazziotti (Contact Author)

Catolica Global School of Law ( email )

Palma de Cima
Lisbon, Lisbon 1649-023
Portugal

HOME PAGE: http://https://catolicalaw.fd.lisboa.ucp.pt

European University Institute ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
ITALY

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