Reasons enough to be a LAWSTAR!
‘Law without Law’ is the framework where LAWSTARS are born…….
This resource explores the ideas of change brought in through the current outbreak of the deadly Coronavirus, intellectual property law, and industrial sectors. It examines various dimensions of stories within stories, which may be recursive in nature. These case studies and concepts have helped us to elevate ourselves, mend what needs immediate redevelopment and structure, and help us provide clearer versions of what we dream of the collapsing economy to emerge into, during the midst of this pandemic. Thus, by providing different narratives with incentives and disincentives, these stories create opportunities, both through the eyes of private and societal constructs. Copyright and Intellectual Property are Pandemics inclusive by nature.
The creative industry’s independent sector comes under the first line of effect. Thus, it is essential to understand the protection of rights and humanity that exists and require re-modeling of application through the current struggles. These may be mere deceptions that give a holistic understanding of the changes in truth and reality.
Typically, humans tend to operate on peripheral knowledge and believe that they are immune to radical changes. This resource doesn’t intend to apply to a theme of romanticizing the concept of change, a change that can be quite terrifying. However, it attempts to evaluate the effects of the current global virus spread on an individual, and subsequently, the societal level. Significant social impacts, especially in the Creative Sector, has implications in the following way:
a) 80% Freelance, Consultants, Artists
b) 15% Small Medium Enterprise Businesses
c) 5% Large Corporations
A vital aspect to understand for focus and relief. Many business aspects of the last two decades shall be reformed again, which can be broken into three stages:
Pre-COVID-19; How the things were progressing
In Transition with COVID-19
Emerging New-World Post COVID-19
1. Pre-COVID-19; How the things were progressing
a) Copyright Amendments — Big shifts came with DMCA and Creative Commons. While DMCA bought in the Fair Use practice, Creative Commons allowed consent for collaboration with pre-agreed terms. Historically, few activities that stood out were -
- The Case of Girl Talk, Greg Gill
- Safe Harbour, Viacom vs. YouTube
- The Case of HOPE Poster of Obama Campaign — LINK
b) Publishing — At a base level, the difference between the Record Label and Publishing business is that Publishing represents the interest of authors, composers, and recreation of their works. While the Record Labels work on sound recording. This distinction is essential to understand the flow of rights and business, therefore. Developing markets like India, Middle East, Africa have a low presence in the publishing industry because of the way the copyrights converge in the Record Labels. While the domestic labels are in the process of creating a segmentation in rights, the Independent Artists are yet to enforce this mechanism.
In developing markets, the issue lies in the dynamics of the market, which operated on a Work For Hire mold. The capital investors lean towards outright ownership, rather than partnership and sharing upsides. The artist’s mindset also reflects making upfront money due to sustainability issues. Judging by the Global M&A’s in the Music Industry, the Publishing accrued substantial value in the valuations.
Sony ATV’s history with Michael Jackson making an unheard-of deal of 46MN$ and setting a precedent. ATV held copyrights of Beatles catalog that Paul Mccartney and Yoko Ono did not purchase due to price. MJ got interested in the copyright business after his conversations with Paul Mccartney. When the catalog came for acquisition, he bought it. Despite being one of the wealthiest musicians, Paul Mccartney did not exercise his right to buy their own music, which he later realized. The critical point for the creative community is to have a focus on owning the rights and creating the right financial value in their artistic journey.
In the emerging markets, many conversations reflect that the low adoption rate of Publishing business is also due to -
- Perception in the Creator’s Mind and Record Labels Glamorous Marketing Outreach Programs.
- The intermediaries — artist managers or their legal advisors, they have a gap in the understanding of the potential of the business, so it is downplayed or pushed back in priority.
These hurdles can be overcome with a robust ecosystem and startups. However, the loop can only be closed when the artist realizes the Value of their own Musical Rights. And, there are many Entrepreneurs who are willing to build non-glamorous but profitable businesses.
Few Case Studies.
c) Fakes News and Views -
When Journalist Emily Bloch made an attempt to trademark ‘Fake News’, we could clearly see the issue had reached a boiling point. YouTube had a backlash from the industry when their campaign of Fake New backfired, and music experts, including the European Commission, condemned the narrative that went out. The 1990s case of Nash vs. CBS is essential as it addresses the issue of whether Fakes are copyright protected? The courts were of the view that if the work is fictional, it is covered. The author has rights in the expression, arrangement of the job but not in the truth. The biography of Tupac Shakur, where the storyline is perceived to be infringing on the published information. The resolve lies in the aspect of the author proving rights in fictional works.
Amit Gurbaxani did a great exercise on this subject in India. Promolta, which works with many global brands and artists effortlessly explained the concept:
There is clear evidence that as the business grew towards Digital & Social Media platforms for engagement, it came along with the legal exposure. The challenge lies in the role of “Aggregation or Intermediaries.” They act as a conduit between the content owner’s interest and platform usage.
Digital Marketing and Bots are two significant segments creating vulnerable situations. Some of these independent or SME digital marketers are in haste to make a quick buck. There are similarities in such a mindset that prevailed at the emergence of the BPO business in the late 90s. Fraud, Cheating became two prominent aspects that were curbed via Ethical Business Practises.
d) Inflammatory and Explicit Content
Bots and Negativity in Human Emotions are the root cause of content that creates an imbalance in the society. A battle the Media-Tech industry continues to fight. Elements on the fringes come with an intent to disrupt and spread negativity. Here is a White Paper detailing the exposure Bots can create for Online Social Networks was written by — Massimo Stellaa, Emilio Ferrarab, Manlio De Domenicoa, and Jon Kleinberg for Center for Information and Communication Technology, Italy; University of Southern California & Cornell University in 2018.
Their reasoning; Social media can profoundly influence reality perception, affecting millions of people’s behavior. Hence, maneuvering opinion dynamics by disseminating forged content over online ecosystems is an active pathway for social hacking. We provide evidence that social bots target mainly human influencers but generate semantic content depending on the polarized stance of their targets.
Anandita Yadav, ILI Law, wrote a paper on Counter Speech, looking for Answers Beyond the Law. (LINK)
The below image explains the essential aspect of the creative business. At each step, the applied legal framework changes, and we get a new narrative that brings in modern debates & interpretation.
e) Fingerprinting
While fingerprinting technologies have made a lot of progress, their integration on platforms like YouTube and Shazam created new business models. Further, as the devices started to recognize the biometric data (Face ID or Fingers ID), new challenges have come up in the protection of data and its privacy.
Brian X Chen’s work in the NY Times puts a spotlight on — Rights, Privacy, Confidentiality, and Advertiser’ engagement with the encrypted data. The legal framework is in its nascent stage of dealing with conflicts around the data breach, hacks, or protection of consumer interest. The core aspect to understand is the distinction between the digital identity and the real human being.
f) Sync deals, a significant revenue stream for music publishers. Chvrches ‘Forever’ song deal with Netflix’s Elite (Season 3) highlights two aspects -
- The song integrated into the Plotline and not characters.
- Shazam Tagging went >1000% due to repeated appearances.
“Forever” serves as a sonic motif with its repeated appearance in flashbacks and moments of suspense. “We wanted to create an atmosphere with music that symbolized what the characters were doing,” Lynn Fainchtein, the music supervisor, Netflix’s Elite. The association with the Plot and not Character is a fresh approach in innovative licensing and eliminates confined thinking.
g) Fair Use
A topic of discussions & debate in India, due to multiple interpretations of the fair use in content. Reasons being — legacy practices, transparency, ambiguity in the legal framework, consolidated label & publishing business, ethical practices are still in early-stage, etc. The developed markets evolved into best practices through introspection.
Rich Stem, Attorney of Law states — In its most general sense, fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. This can be broken into two parts: commentary & criticism, parody.
The Story of Dixie Chicks song Sin Wagon, expressed by Prof. Dr. E. Michael Harrington (Author of the Copyright Works program and a veteran in the industry). He details the situation where life on earth is phenomenal, and she fears life in heaven. The curious case here is the journey of the creative imagination between two thoughts, and their collision becomes a piece of art.
h) Self Regulation of Rights
Discussions here are relevant as the high-speed data networks grew, and the social networks developed UGC. This brings to light — Most of the collecting societies are Self-regulated, but, ASCAP, BMI entered into consent decrees with the U.S. DOJ.
Jie Wang, Jiao Tong University, Shanghai did a detailed analysis of the notion that the Internet can be managed better if it is Self Regulated, Self Governed, and not dictated by the traditional forms.
The Indian Government, recently, came to the opinion that they do not have the power to regulate the Internet and suggested an adjudicatory body, the Digital Content Complaint Council. In a continued debate, the Major Video Streaming Platforms don’t want to opt-in for Self Regulation.
i) The Monkey Selfie
Selfie clicked by Monkey through David Slater’s equipment, opened up all aspects of Jurisdiction, Author Rights, Territorial Rights, etc. WIPO carried an opinion by Andres Guadamuz, Senior Lecturer in Intellectual Property Law, University of Sussex.
The challenge is continued due to its interpretation, “Because copyright law is limited to ‘original intellectual conceptions of the author,’ the [copyright] office will refuse to register a claim if it determines that a human being did not create the work. The Office will not register works produced by nature, animals, or plants.”
Monkey Selfie, therefore, is affecting copyright as Artificial Intelligence enters into the framework of writing, composition, artistic works, and animal rights.
j) Happy Birthday
k) Statute Anne
2. In Transition with COVID-19
a) Lockdown, due to CoronaVirus, has opened up many challenges in the legal framework. Business earnings are impacted by many of them as they operate between — unknown and unclear situations. This is the space of vulnerability and ambiguity, wherein the law in its current framework cannot be fully applied. Interestingly, a lot of research and use cases can be generated. However, few critical aspects that are emerging:
b) Commitments Dispute — A personal promise given in good faith without documentation, gone into a humanitarian crisis, and cannot be fulfilled. Does this become a legit battle, wilful default, or only an extension with a grace period with a future promise?
c) Lack of provision against Pandemics — Barring a few, many relationships in business or otherwise in the creative industry lack a requirement here. This will not be entirely correct to say that we have no historical reference. Pandemics have occurred since the existence of humans. But, we lack the identification of that in the current framework of the legal templates. Ideally, that should not be the case, because the current time frame is digitally driven and much of the analog work is digitized. The missing link is the replication of work. An SOP that exists in many layers of the creative industry termed as the ‘Band-Aid, Cut Paste Documents.’ A problem that needs to be corrected more from the moral & consciousness grounds, as it risks the efforts of all parties involved and is operating in an unprotected template. Ideally, the provision, if not an absolute, should exist as a reference. This means each document has to be unique because the discussion of the involved parties is unique.
d) Force Majeure, the most significant exposure to the entire Entertainment Industry, including Music, Movies, TV, Digital, Programmable Content, OOH Advertising, Traditional Media Channels, Sports, Gaming, etc. The collective of Phil Sherrell, Richard McMorris, and Esme Strathcole at Bird & Bird wrote an extensive note on all the areas concerning COVID-19 situation.
While Client information, privilege, and confidentiality is a critical factor, the focus area is the appointment of a Legal Counsel and the Legal documentation they can create. In the event of a dispute, these documents come to use. The diligence of the papers reflects how honest the creator has been while documenting them; it is reflective of the honesty to the oath one took to become a legal practitioner.
An excellent legal counsel and a piece of great advice will focus on ‘Fixtures are the Failure Concept.’ It is hard to find such diverse mindsets since the legal templates and the legal framework is fixed. However, issues are always a variable.
Sugata Ghost at Economic Times did an excellent piece on this topic, highlighting significant loopholes in the existing documentation and practices. Some keywords that came out: Defend Contract, Frustration of Draft, Lawyers Thinking Block.
CoronaVirus hit the US, has an insightful explanation by Pryor Cashman Lawfirm. In essence, the courts may adopt a common law doctrine of impracticability as a defense to performance under a contract.
e) Balcony Singing and Performance Rights
While ASCAP took Meadowlark and multiple bars to court for copyright infringement in the US in its traditional style of Performance Licensing, Fortnite became a more significant issue.
Fortnite dance emotes got the attention of the copyright owners due to its usage, reach, and sizable user engagement. Kids’ popular dance moves from Backpack Kid’s “Flossin” song (creator of The Floss dance) sued Epic Games for copyright infringement of their dance moves. This is interesting because it also lands in the intersection and borders of two district frameworks in protection, the UK and the US.
Balcony Singing came next and rolled into the DJs going live from the rooftop
When Martin Garrix rooftop Concert generated over millions of views, it is interesting to note that SAGE took a position not to stop the music because of the Covid-19 situation.
Similarly, David Guetta’s United at Home Fundraiser raised 700,00US$.
To spread awareness against CoronaVirus, SAGE did not stop balcony singing. Instead encouraged the entire nation, “Because singing has no cost, but it is invaluable, especially for those who directly suffer from the virus or for those who fight on the front line against its consequences,” he says. According to the SAGE — songs that, every night, unite millions of citizens are part of the collective memory of the Spanish and function as a link that reinforces the state of mind.
f) Pivot from Asset-based Streaming into Live Artist Performances
The big pivot is the artist gone online in performing their songs. While this is not a new phenomenon, many of the Musicians and Creative Artists are unaware of the way the permission of rights needs to be taken.
Recommended reading on Privacy and Censorship by Harvard Extension School for the Program — Internet & Society: Technology & Politics of Control (LINK)
g) Online Court proceedings
Fast Tracking the pending cases through online proceedings shall become a new mechanism. While it got tested during lockdown periods, we still need a robust tool for online legal work as we cross the tunnel of Covid-19.
On one side, we are losing human lives (many creative artists have been lost); on the other, we have a halt in the travel sector. In the confines of such a situation, which has a direct impact on the human movement, documentation and proceedings shall move online, which therefore opens completely new areas of dispute, indemnities, and resolutions.
Like the Monkey Selfie, the courts may decide for interim relief in certain aspects. Still, the crucial parts like serving of the notices, documentation, filing, protection of evidence, digital will, etc. shall perhaps become the new standard. This means new definitions, new rights, new interpretations, and reworking of a lot of documents that existed pre-pandemic.
The era of Blockchain begins here, and perhaps fast Tracking of deep tech in terms of validation to the smart contracting and a legal framework is the need at this point. A reflection of this is happening in the cryptocurrency world as well, where the ‘Digital Dollar’ concept is being pushed by J. Christopher Giancarlo, Senior Counsel at Willkie Farr and Gallagher and former Chairman of the U.S. Commodity Futures Trading Commission. One of the most straightforward reasons being, the regulators not willing to put human lives in harm’s way, should the exchange of currency be a point of transmission of pandemics, just like the mobile device. (LINK)
h) Our Face is the new valuable asset for the celebrities as we shall see the rise of Holographic Tech. This is important for the Creative Community to understand, as they will go deeper into the web-conferencing and real-time video collaborative world. Companies like Facebook will need to relook at user privacy and personalized data usage rules because the quantum of users is> 2BN.
A virtual bank coming soon. We have already witnessed the opportunity with Musicals of the dead artist with their holograms. This is a step ahead in the direction of — “If you thought Mayweather vs. Conor McGregor was a massive global pay per view event, then how about Mayweather vs. Bruce Lee?” — a question raided by Adrian Pennington of The Red Shark News
2012 — Coachella unveiled Tupac with Snoop Dogg
In 2020 — Facebank and FuboTV merger open up a new dimension in Imagination of the Creator, CopyRights, and their applicability in the existing Legal Framework.
3. Emerging New-World; Post COVID-19
Resetting back to our old layouts and expecting instant gratification to the pre-existing normalcy in a post-pandemic world would only be counterintuitive for the change that is to come. As the overall threat of the virus recedes in time, a new hope of emerging laws and business models will commence; one where we pivot collectively to restructure and grow resources globally and scale opportunities based on cost capital for the survival of the crashing economy and human race. More importantly, addressing new risks to arise in this remodeling of the economy.
The imagination of the cosmos reveals it to be quite spectacular machinery. As exaggerated and oversold as the butterfly effect is, it actually is true. The cosmos just keeps on going, existing in nearly-endless continuity, and as mere elements in it, so do we with it. We are not saying that there is such a thing as destiny or that the universe conspires and plans everything for us. But it is true that every little thing that happens continues to shape the cosmos in its own way, and that’s just how the cosmic cycle runs. And that’s the best we can do to come to terms with the fact that — the only thing constant is change.
Similar to conceptions of space, when viewing conceptions of time, one sees that the smallest event continues to shape the cosmos in its own way, providing a chronic conception of the cosmic cycle. Case and point, our current global crisis. Due to this permanence of change, there is an impetus to action. Action and consequences have philosophically been linked to the ability of memory to retain the identity and thus create morality and responsibility. It is explained as the purpose of the continuation of human life and action, along with the further drive of learning, growing, and exploring. Everything is a change. As uneven, rough, and tumultuous the change maybe, this would just further make us re-examine our ability to gauge at things. What we all forget to understand is that change is the factor of functioning, it drives us and it keeps us alive. Change injects life and inspires and motivates us to do things. To discover and to be ourselves and find meaning in the midst of this COVID fighting world.
By Vivek Paul, in collaboration with Tinnuts (Rafael Perreira and Cynthia John)
- The contents of this post are personal views of the author and the collaborators.
- The source of information is tagged in the links.
