Introduction
Welcome: Sally Weston (BU Head of Law)
Good morning, and welcome to Bournemouth University for this symposium. It is a privilege and a pleasure to welcome such a distinguished group of speakers for this ESRC Social Science Festival event. We are delighted to host this event, which brings policy-makers, stakeholders, social scientists and lawyers together to discuss what constitutes evidence for copyright. This is the 11th symposium to be held by CIPPM at Bournemouth University. When I looked back at the first symposium in 2001, I see that its title was The New Feudalism of Ideas (www.cippm.org.uk/symposia/2001.html). It correctly predicted that property rights would be increasingly concentrated in global companies, with permissions granted for specific temporary rights of use. This was before Amazon and Google became household names. I am confident that today's symposium will be as insightful as the previous events. This is a bittersweet day for us; it is Martin's last day at Bournemouth before he takes up his new role as Director of CREATe at Glasgow University. Martin co-founded CIPPM with Ruth Soetendorp over 12 years ago and worked to see it rise to its preeminent position.
I look forward to a challenging and inspiring discussion.
Guide to Digital Interaction: Dr Dinusha Mendis (BU)
I just have a few points to make about the technology today. We want to ensure that the discussion continues after today; we want to be able to cite the event, we would like to make some vid-casts available. However, we will not do any of that without your consent. Once we have edited the videos, we will get in touch with you, we will ask for your permission first, and then we hope to produce digital proceedings.
Setting the scene: Professor Ruth Towse (BU)
We seem to have a very formal kind of organisation for what we hope will be rather an informal discussion, so I'm going to start that off by sitting down. And you may notice that although everybody's been told to speak for five to ten minutes, I am going to speak for 15! So why organise something if you can't take advantage of it...!
I thought I'd start on a slightly personal note, in fact, because the motivation for my contribution to this event has been my own work, which started with empirical work on artists' labour markets in the 1990s. We tend to use the word artist, meaning anyone - performing artists, crafts people and so on - in cultural economics, it's a bit of a loose term. I'm an economist, I work in a field called Cultural Economics, and I gradually moved into the economics of copyright. I realised that copyright was, or was supposed to be, a source of income for creators of all kinds.
In the 1990s there was no evidence to be found on copyright and there was no interest in the economics of copyright. I think the only source that we could find was the old Monopolies and Mergers Commission's investigations into the music industry (Monopolies and Mergers Commission, 1988, 1994, 1996); I met Martin in those days and we were both using the same sources of evidence. But the other source of evidence, really, was going to collecting societies, going to Musicians' Union and so on, and to try and talk them into helping out (Taylor and Towse, 1998).
Now, I think the real stimulus to interest in copyright itself, and particularly in the economics of copyright, has been unauthorised use: piracy, as it's widely known - though I don't like that term very much; that brought in the economists, and by the end of the last century, the late 1990s, there was also the interest in the creative industries. The DCMS in the UK managed to make a big ministry out of what had been a rather small Office of Arts and Libraries, and I think grabbed from various ministries and became a really very big department when the whole creative industries 'paradigm' began. I worked in that area and there was a lot of interest in getting the right figures and data, how big they are and how fast they're growing, and so on and so forth.
I was then invited by the World Intellectual Property Organisation to work on their 2003 Guide to measuring the contributions of the copyright based industries to GDP - gross domestic product or national income. And during the week, when we were holed up in a hotel and made to work every day from 9 to 5 - something that academics are not very good at doing - the difficulties and the ambiguities of doing this kind of exercise became abundantly clear, and in particular, the potential for producing misleading data. So that and various commissions and consultancies that I've been involved in, led me to realise that often the questions the policy-makers are asking of economists can't be answered with the kind of clarity and exactitude that I think they hope to see. Researchers, especially the consultancies, produce figures that then get bandied about, even though the people who have produced them carefully say, 'Well, we can't be sure about this, it's based on this assumption and that assumption,' but nevertheless, that is the figure that's wanted and that is what gets out there. One of my examples of this was that I was asked to do this for one government: What is the value of copyright to our country? Well, I mean how could an economist answer that question? (Towse, 2011).
What do we want evidence for, what do we want to do with evidence? Well, as an economist, I would say we're looking for causality.
So, above all, what do we want evidence for, what do we want to do with evidence? Well, as an economist, I would say we're looking for causality. What is copyright for? The economic point of view of copyright is that it's an incentive. Well, is it an incentive? Are we just propping up industries, or are we truly stimulating creators? Causality is what economists attempt to look for, by formulating theoretically based hypotheses and finding relevant data to test them. This could be surveys, or it could be official figures, but the point is that facts do not speak for themselves. To become evidence, data must be related to behaviour, and even then we can't prove something, we can just provide evidence that does not refute that hypothesis. In fact, all social science students, at least at the Masters level, will have had courses in research methods, which in the better ones will emphasise the underlying methodological questions of finding and using evidence, but whatever else they do, they will teach students, I suppose, rule number one, which is to avoid bias in your evidence. So, for example, for surveys, you must use large samples of a known population size; you should make neutral statements in surveys; you should not have loaded kind of sentences that put words into people's mouths. Avoid value-laden terms; carefully report results without interpolation. And I think this is a particularly important point: don't impose unnecessary costs on respondents. Now, I would certainly accuse IPO - not the individuals personally, of course - but I mean the office over the number of inquiries that there have been on this subject that have placed considerable burdens on the organisations and the stakeholders who are expected to respond. And on that subject, I'd like to say that of course in the 1990s, those organisations would have hired lawyers to help them with the copyright side of things, and now they're stuck with trying to produce economic evidence and I'm sure some of them don't know quite what to do about that. Obtaining and providing information is very costly, and the result is that the better off get heard more.
So, in terms of this meeting, you've all had the Intellectual Property Office's rules of good evidence (2011); it sets very high standards. Stakeholders may very well not care about the sort of things I've talked about, those are things that academics think about and of course it is the job of the stakeholders to protect their interests, or to promote their interests, and naturally they are biased, that's why they're there. I'd also like to mention that lobbynomics, which is the term that Hargreaves coined in his report (Hargreaves, 2011), was thought of a long time ago in economics; it actually comes from a field of economics called Public Choice Theory, and there's a rather interesting rule that was made by an public choice economist called Gordon Tullock (1963) on rent seeking (rent being what you hope to get out of lobbying) which is that the limit to the expenditure on lobbying is the most that the lobbyist expects to gain in economic rent - quite an interesting thought.
So what we hope to get out of this meeting is more understanding about the validity of different approaches to these problems, and possibly some conclusions about how the processes of providing information on copyright policy might be improved.
Thank you all for coming, I'm going to now sit back and enjoy what I hope will be a very lively and informative discussion.
Example: The Parody Project
Speakers: Dr. Kris Erickson, Prof. Martin Kretschmer (BU & CREATe) - Hereinafter referred to as (KE) and (MK)
(MK) Similarly, abusing the privilege, we thought we'd start with an example, an example everybody has an opinion about, and which also shows the difficult nature of evidence. So if you asked the question, whether making a parody should be permitted under copyright law, whether there should be defence or some other legal mechanism by which you can make parodies without seeking permission, what kind of evidence would bear on that point? Most of us will have an opinion here, and since we have Robin Jacob in the room, I thought I'd put one of his bêtes noires up.
This is a notorious case from the 1960s where an injunction was granted. Here is the film poster for Cleopatra: Liz Taylor, Burton, and so on, and this is the Carry On persiflage, and for the non-British, who have never seen a Carry On film, the cultural reference points are too complex! [laughter] I refer to Kris Erickson's inspired line at the top, it's a complex, longstanding cultural practice.
A similar case, you might say, is one from France, which has got a kind of defence in the Intellectual Property Act (Art L 122-5). In this example of Tintin parodies, current affairs topics are dressed up in the visual language and elements of the plot, which are part of the Tintin repertoire. In the court of appeal this was permitted. It looks, on the surface, quite similar to what we've seen on the Carry On poster.
Here we have a Louis Vuitton parody from the United States, which was permitted again, both under trademark law and as 'fair use' under copyright law. And this is a case from the Netherlands, the Chihuahua, which is the favourite dog of Paris Hilton, with a Louis Vuitton bag. Again that was subject to litigation, and on appeal held to be lawful. So, there is a line to be drawn here: should it be or not, and there's a legal rule. Policy makers in the UK are in that position at the moment, they're thinking about whether we should change the situation which we inherited, where essentially it is unlawful to make parodies (in the UK that is the current law). If you copy a substantial part, then you commit an infringement, and it's almost impossible to make a parody without copying a substantial part, because otherwise you can't recognise it as a parody; you can't easily comment on an object unless your taking is substantial.
(Robin Jacob) Actually, it's more complicated than that. For visual things, that's true. Written things, you can, you can parody somebody's style without copying anything; a very interesting fact.
(MK) You may not use any substantial part, and therefore you can get away with a textural parody, not with a visual one.
(Robin Jacob) Visual things you can't.
It's a piece of empirical work, which tells us something about the world, but what does it tell us about policy? Does it tell us anything about whether parodies should be permitted or not?
(MK) Okay, I'm sure we will speak much more. One of the reasons I put it up is because everybody has got an opinion! So, we have been commissioned by the IPO to produce a specific piece of evidence which looks at economic aspects of parodies, whether the presence of parodies causes harm to the original. A very specific question, but it is one question to which the answer would probably count as evidence in most of our minds. It's a piece of empirical work, which tells us something about the world, but what does it tell us about policy? Does it tell us anything about whether parodies should be permitted or not? So this is the paradox we put in the room. Kris will now show how we created our little empirical window, what we think the world is like.
(KE) Thanks, Martin. So we all realise that parody is something that takes place in all sorts of mediums, and Martin has just given a few examples. As a social scientist interested in internet communication, and faced with the question: does parody cause harm to right holders, my instinct was to look on the internet, and online, it seems to me, that YouTube is the place where a lot of this sort of parody increasingly takes place. But YouTube is an interesting case itself: it's a licensed environment, and it's also a site where we have amateurs producing content, perhaps not even aware of the legal defences or the exceptions to copyright that they might be entitled to. And then we've got creators: record labels, commercial works, sitting in channels such as VEVO, which is a revenue share between large music labels and Google. So it's an interesting case, and we chose it as the field site, if you want, for this research, because YouTube is, I would argue, the place where there's quantitatively a lot of parody happening. And it's also, we use the term emblematic, of a kind of user-generated dynamic, which is a very interesting move forward.
This video is a still from a clip by Andy Samberg, and it was actually a parody music video that ran on Saturday Night Live, but it found its way on to YouTube and it was actually one of the early successful viral videos of YouTube. Now, NBC complained and had it taken down, after only 48 hours of being on YouTube. This was back in 2005/2006, but within those 48 hours it amassed 5 million views, and that was a lot of views in the early days for YouTube. So, arguably, parody has been involved right from the beginning in establishing YouTube's prominence.
I just want to show a quick example of the kind of thing we found when we first looked at what was out there. So this is a parody of a pop dance track called I'm Sexy and I Know It, and the person has parodied it by changing the lyrics, and maybe you'll see what he's done. [short clip played] So I'm Average and I Know It. And this fellow has been incredibly successful and this will be important later. Look at this: 23 million views he's got on his parody of a famous pop song from 2011. There are some more here, and if we distribute the slides you can check them out.
So, just to back up a little bit and add to what Martin was saying, that the context in which we were asked to provide this evidence is in the sort of post-Hargreaves Report world, and it's important to note that the Hargreaves Report discussed parody: it said that it's an important aspect in terms of freedom of expression, but that freedom of expression sat outside the terms of reference of that review. And, actually, Hargreaves makes the argument for a parody exception in the UK, based on more or less economic grounds. So, first of all, restricting what such an exception would look like, by arguing that it should not damage the legitimate rights of copyright owners, and also suggesting that perhaps there might be some economic benefit, growth benefit for the UK, from introducing this and other related exceptions.
So, the methodology: we were somewhat feeling our way in the dark here, but what we did was we selected a primary sample of pop songs, by looking at the British Charts Company (www.officialcharts.com/) data for 2011. We took the top 100 charting songs, so any song that charted anywhere in the top 100 in the UK for 2011, but we excluded covers, such as Glee, because typically those were already derivative and they were based on older music, so it would have been difficult to figure out in YouTube what was actually happening with old music. From that, that yielded 378 tracks, and that's because songs could chart for multiple months. We then further reduced the sample by checking to see if there was a commercial music video on YouTube. So remember, the song is separate from the music video. YouTube is a video platform, so there had to be an actual music video involving the sound recording as well as a new video recording provided by a skilled video maker. Then we employed some research assistants, one of whom, Conor O'Kane, is here - thanks, Conor, for all your hard work - and they diligently searched to find out how many parodies existed for each one of the 343 original songs existed as a parody on YouTube. They found a whopping 8299 cases, so already we were thrilled to discover that it's a very widespread and impactful behaviour. Because there were so many tracks, we have randomly sampled within the total number to reduce the amount to 1845, which we carefully scrutinised when we looked at things. We essentially carried out a content analysis on those 1845 videos, to see, for example, how much of the original was copied over, as well as some degree of how negative the parody was with respect to the original, because in order to find out whether or not reputational harm could be taking place, we needed to find out how negative the parodies were to the original.
So, this is one of our findings, and what we've done here is we've plotted out the 343 primary songs, so each of these dots represents a primary commercial music video from 2011. The x-axis is its retail success rank. We don't have exact sales figures from the British Charts Company, because we're not part of the music industry and they jealously guard that data, but we do have the rank data, so we have some sense of how successful the song was at retail, out in the real world. The y-axis, we have the YouTube audience that it attracted on the VEVO (www.vevo.com) platform.
(MK) And VEVO is licensed, so these are the right holders' own versions of music videos; that's important. So the market we are looking at has the licensed version by the right-holders next to the non-licensed version by the consumer, or user generator.
(KE) And as expected, there's a loose relationship between those two factors. More successful songs out in the wild tend to attract higher audiences on YouTube for the licenced music video, but what we've overlaid on this are the incidences of parody. So these in blue, songs that sadly were not parodied at all. Green and yellow were moderately parodied, and the purple circles, we discovered more than ten incidents of parody in our searches. And we see that actually a high degree of parody appears to be correlated with higher viewership on VEVO. So we can very tentatively suggest that based on this, there doesn't appear to be any explicit damage to the YouTube performance of a music video caused by a large number of parodies being present.
(MK) So hold on for a second. It's just a correlation, it's not a causation; it could be that chart songs which are successful are more parodied, so the causality could be either way. But what is very interesting here is that the uplift from the presence of parodies is much greater for the lower ranking chart songs, you get a much higher uplift than you do if you're already successful, which suggests to us that the presence of parodies is not only not damaging but positively helpful. So basically, there are two findings we can state, and I think they are robust. (1) To claim that the presence of parody acts as a substitute, that is wrong. It's not; parodies are not a substitute for the original, very clear here. (2) The indications are that the presence of parodies is actually helpful to the original, on average.
(KE) Thanks, Martin. And we can discuss this, I'm happy to discuss this further. But moving along, the other interesting finding from our content analysis was that there was actually a real range of different cultural practices observed within the parody sample. So here we're looking at the 1845 derivative parody works, and the doctrinal view in parody is that there are largely two types of parody: target parody, which focuses on the original piece of art or artist, and makes a critique of that, and weapon parody, which uses an existing bit of art or work, and actually parodies it to draw attention to some other phenomenon, some third party act or a phenomenon. So, for example, using a pop song to discuss politics would be an example of weapon parody. In our study we discovered a third category, or what we think is a third category, illustrated by the example that I showed you, which that in some cases, perhaps the parodist is actually critiquing themselves, so they're making fun of their own lack of ability in dancing or their own sort of physical appearance or what have you. And that does make sense given the sort of cultural and aesthetic dynamics in YouTube. We also found there were some cases where people were labelling their YouTube content with the word Parody, therefore causing it to show up in our search results, but upon viewing the video, we couldn't discern any actual parody there, so there could be some confusion in terms of how the public understands parody, and that complicates any potential policymaking, of course, and it's likely worthy of further study.
(MK) Or it may play on the rules of the platform, so they may want to escape an infringement claim by using the parody label, certainly in the US that would work.
(KE) The other important thing to draw from this is that within the target parody category, we essentially, in our content analysis we try to determine the severity of critique. So this was a subjective judgement and we worked very hard as a research team to try to make sure that we were all on the same page in terms of whether a critique was negative, overtly negative or not. What we discovered was that a very small number of the weapon parodies, of the overall parodies, were explicitly negative, that is that they made some sort of a call to not commercially support an artist or an album, and actually, a larger proportion of the target parodies were really light-hearted in their approach to the target material. So, it simply gives us a snapshot of what's happening in terms of the expressive side of what people are doing on YouTube.
There are very few questions which could be addressed purely in economic terms, where there would be societal acceptance that this is the only perspective that matters. There are very few questions in copyright law which you can isolate in that way.
A final point, which is important to make, I think, is that we looked at the quantity of views. Now that fellow who I showed you, he'd had 23 million views, and that puts him in a very elite category of parody maker. The vast majority, 69% of our videos, accounted for 22 million of all of the total views in the entire sample, and that fellow had 23 million views. So with one video, he's actually eclipsed 69% of our sample all added together. So that simply means that most parodists, they're not reaching a wide enough audience to have any sort of impact. When we're talking about Adele, or Lady Gaga, drawing down 600 million views on VEVO, a few million here and there in parody, it's hard to see how that could have any sort of a market substitution effect, and certainly it didn't bear out in the data. But it also potentially reinforces Hargreaves' finding that there is a market there for derivative creative output, for example, parody, if those skilled amateurs and professional quality parodists, like the fellow who we just met, were able to somehow monetise their work. And we can go into a more detailed conversation about how YouTube currently prevents that from happening by its content ID copyright, automated copyright filter, which I think, would be a very interesting case of technology as it relates to copyright, but simply to show that there is a somewhat potential market for this sort of derivative work.
(MK) Okay. So the session really is not about that project, but to reflect on what is the nature of the evidence we produced here. So we've got obviously a lot of interesting facts about what happens on YouTube, things we didn't know before. We didn't know before that the very critical ones are really a small percentage. We didn't know before some of the percentages of creative contribution, whether they just took the sound track and voiced over it, or whether they changed the music, or the extent of the creative input of the user, we've got some data here. But for policy, so what is this kind of empirical picture telling us where the line should be for a copyright exception? And my suggestion is that for copyright, this is particularly tricky, because copyright involves both norms of transaction and norms of communication, so it's not just one set, and therefore, wherever you look in detail, there comes much more into play. There are very few questions which could be addressed purely in economic terms, where there would be societal acceptance that this is the only perspective that matters. There are very few questions in copyright law which you can isolate in that way. Anyway, I think the evidence is good evidence in that it disproves a widely held view about the presence of parodies, but what follows from it is unclear.
So, I think that's enough and we don't need to probe this as a piece of research, because that would get us in the wrong territory. We will now set up the next panel, which will be policymakers who deal with consultations and seeking evidence all the time, and how they view what comes their way.
