The Use of Copyright in Digital Times: A Study of How Artists Exercise Their Rights in Norway

ABSTRACT

How do artists use copyright to further their creative ends? To approach this question, this article focuses on the relationship between artists’ appropriation of digital technology and exertion of their rights. In particular, it relates the evolving range of production tools and distribution services to the ways in which artists currently create musical works and seek to exploit their economic as well as moral rights. Interviews with eighteen artists in Norway reveal a series of technology-mediated challenges to the ownership of one’s work, the recognition of one’s authorship, and one’s remuneration that demonstrate the need for open discussion of the ethical aspects of copyright in music.

KEYWORDS:

• Artists
• copyright
• literacy
• negotiation
• production tools
• streaming services

Lawmakers, politicians, and other authorities regularly underscore the importance of copyright law to support artists and their creative work. It is unclear to what extent copyright actually benefits artists in the digital age, however, given the copyright-averse operations of global industry players and the popularity of copyright-ignorant (or copyright-hostile) practices of sampling and file-sharing (Klein, Moss, and Edwards). To ascertain something about the usefulness of copyright, I decided to ask artists themselves how they go about exercising their copyright, and to unpack the impact of digital technology upon those processes and practices.

I begin by discussing the basic elements of copyright and the ways in which we can conceptualize its usage, associating the exertion of these rights with the artist’s literacy and ability to negotiate face-to-face with various partners. I then link these capacities to the possibilities of digital technology and its evolving opportunities to produce and distribute music. I present findings from an interview study of eighteen popular music artists in Norway who are active within the rock, blues, and country genres, delving into how technology and copyright are integrated into their practices as composers, performers, and recording artists. I carried out this study alongside an official revision of copyright law in Norway, providing an opportunity to relate contemporary developments within the legal framework to the ways in which artists currently perceive and exercise their rights.

Rights and their Use

The notion of copyright law as something that is used is reflected in its history, which extends from publishers’ early attempts to control the printing press to the efforts of composers and performers to establish conventions that enabled them to control their work, most notably through the Berne convention of 1886 and the Rome convention of 1961 (Ricketson and Ginsburg). Copyright law is also used by international and national lawmakers as a means of achieving various cultural, economic, and social goals. It is a law continuously in the making, in Norway, at least: since its initial formulation there in 1961, it has been adjusted numerous times in response to international conventions, EU directives, and the lobbying of interested national parties. In the 2000s, developments in digital technology have challenged the viability of the law anew and triggered a series of adjustments – for example, to address on-demand distribution of copyrighted works. When the Norwegian government issued a proposition in 2017 to revise its copyright law yet again, a key motivation was, in fact, to synthesize the accumulated adjustments into a whole “which would make it [the law] a more effective and easily applicable tool for all its users” (Proposition 9).¹

The proposition’s ambitions extended beyond a more comprehensible law, and paragraph 1 made clear its threefold purpose: first, “to give rights to those who create, perform and invest in intellectual work”; second, “to maintain a fair balance between the interests of the rights holders, on the one hand, and the interests of the users and the public, on the other”; and third, “to facilitate agreements for the use of intellectual work” ([Norwegian] Copyright; all numbered paragraphs refer to this document). Paragraph 2 went on to define intellectual work as “expressions of original and individual creative intellectual effort.” Paragraph 3 presented the exclusive right to “make copies of the work” and to “make the work available to the public,” both of which apply to the creator’s ability to capitalize upon their efforts; they are considered key economic rights. Paragraph 4 clarifies an exception to the use of these core rights, which is the production of temporary copies as part of the technical process of making works available for use, which applies to contemporary on-demand streaming, for example. Paragraph 5 introduces the creator’s moral rights, including the “right of the creator to be named in accordance with good practice” and the requirement that “works must not be altered or made available to the public in a way or in a context which is offensive to the creator’s or the work’s repute or distinctiveness.” All of these paragraphs were eventually passed into law.

While the Norwegian lawmakers clearly sought a pedagogical presentation of key purposes and rights, it can still be hard to grasp what a fair balance between creators and users looks like, what might constitute a creative effort, or when a presentational context is offensive. Furthermore, the law contains little information about how to exercise one’s rights through, for example, forging agreements with parties that “make the work available to the public” and ensuring that one is “named in accordance with good practice.” Using the law requires not only a kind of legal literacy to interpret the terms of the rights but also an ability to articulate effective claims to others. Describing the first of these competencies as “literacy” highlights the effort it takes to master; the fact that this competency develops over time; and the possibility of substantial sociocultural gains (Prinsloo and Baynham). Some form of legal literacy is, in fact, relevant to the use of most rights, such as the consumer’s right to return a purchase or report misleading advertising. A lack of awareness of the laws and procedures likely limits the use of many rights, which, in the case of copyright, can have substantial implications for the success of songwriters and performers.

One intuitive way to use copyright is to set certain demands for the use of works, such as a fee to copy it and a set of requirements concerning artist identification. If such demands are too complicated or difficult, however, the interested party might look elsewhere, defeating the purpose of creating work to be shared in the first place. Another intuitive form of copyright use is to go to court and claim reparations if one’s rights have been ignored. Yet this can be costly in terms of time, reputation, and money, so artists seldom bring conflicts to a court of law. Rather than offering an easy fix, then, copyright law simply provides a framework for negotiations between competing interests, the effective use of which depends on both knowing the framework and realistically assessing one’s bargaining power within it. The law’s definition of “intellectual works” as “original and individual” and its orientation toward control and terms of exchange seem suited to what is called distributive negotiations, in which a certain set of goods is up for discussion and each party aims to get as much as possible in return for what it can offer (Thompson; see also Raiffa). Legal rights could also be used in so-called integrative negotiations – a form of bargaining where people offer to pool their resources to accomplish something bigger than they would have achieved on their own, and then they share in the benefits of the arrangement. In both cases, one’s bargaining power depends on having something one’s counterpart wants, and on knowing what to expect from that counterpart (Thompson).

The use of one’s copyright usually entails some form of specialized cooperation with others, whether in the process of creation, circulation, or collection of remuneration. First of all, artists must strike deals with various commercial partners, such as studio producers, record labels, publishers, distributors, music services, and media enterprises, and signing such agreements can have substantial consequences for their income and work conditions (Caves). For assistance, artists can seek negotiation advice from organizations that represent their interests, such as composers’ unions or collecting societies, the latter of which claim compensation for the use of copyright-protected works. Little is known, however, about the “nature of different kinds of bargaining power in the complex variety of music industry contexts,” which, Gripsrud contends, “would be a good topic for highly interesting and useful research” (235).

The deals made, as well as the advice given, are, however, usually known only to the specific parties involved. For the artists, then, as well as other interested parties (including academics), it is particularly hard to evaluate the quality or efficacy of these deals through comparison to others, for example. If an artist thinks a partner is disrespecting her rights, she can try to convince her organization to try the case in a court of law, given its potential relevance to the greater member group. If the artist thinks that current copyright law fails to adequately protect her interests, she might also encourage her organization to lobby for a change in the law. These means of exercising legal prerogatives are, however, at once very ambitious and very demanding for the petitioner to pursue.

It is rather paradoxical that the starting point of copyright use is the individual creative act, when it is so challenging for the individual to protect that act by exercising these rights. Companies can seek alternative paths, including government-sanctioned copyright tribunals that can settle licensing disputes in terms of adequate rates. There are also examples of companies developing a code of conduct, such as the independent labels’ “Fair Digital Deals Declaration,” dedicated to just and transparent payments to artists (see Aguilar). For artists, however, there are also other ways of using one’s copyright, which I will illustrate by briefly presenting a form of rights use that is actively employed in the neighboring cultural sector of journalistic media. Here, numerous organizations and companies from different parts of the sector have united as the Norwegian Press Association (Norsk Presseforbund), through which they have formulated a code of conduct (vær varsom-plakaten) for journalistic work, including, for example, ways to interact with sources in daily practice – see the Norsk Presseforbund website. (Most European countries have a similar arrangement). This code is one way to manage the key right upon which journalism is based, freedom of speech (paragraph 100 of the Norwegian constitution), and to interpret how this right should be balanced with other rights, such as the right to privacy. Furthermore, the association has established a tribunal to which individuals as well as organizations can report (without fees) what they argue to be breaches of the code. Such complaints are handled by an independent committee with representatives from different parts of the sector, as well as competent members of the public, and its assessment is made known publicly. The tribunal handles more than four hundred claims annually; for comparison, the number of press-related cases that are actually brought to court number around thirteen per year on average (Hovlid and Bjerke 6). The decision of the tribunal does not have legal status, and its sanction is primarily censure – an act, that is, can be deemed to transgress the professional standards of the sector. This tribunal is one means of exercising a legal right in a manner that is available to the individual and that contributes to the cultivation and circulation of reasonable interpretations of the right in question. This model has not yet been tested in the field of music and copyright, the significance of which I will return to later.

Has the use of digital technology altered the horizon of opportunities for the use of copyright? Digitization has essentially introduced entirely new interfaces for producing, distributing, and supervising the movements of creative works, now rendered as digital data. The implications of these interfaces have largely been perceived as negative for the viability of copyright use, thanks to practices such as sampling and file-sharing (Klein, Moss, and Edwards; Spilker). In both of these situations, however, copyright law enforcement has been revised over time to address the transgression. Furthermore, the use of digital tools has enabled more detailed supervision of the ways in which artists, inspired by one another, use each other’s creative content, and of how music in general is shared within networks of private individuals. Such digital interventions might not always be to the benefit of an artist’s creativity or engagement with listeners (see, for example, McLeod and Dicola; Burkart), revealing the unpredictable and sometimes ambivalent connections between the use of technology and copyright.

New technology also presents new opportunities to create musical works and to reach out to consumers. The acquisition and mastery of new tools of production and distribution are prerequisites for the use of those tools to exercise copyright over one’s works in new ways, demonstrating the relationship between legal literacy and new-media literacy (Livingstone). We know little, however, about what the harnessing of such competencies might contribute to the capacity for negotiation of artists faced with various potential partners. According to Toynbee, copyright “has favoured big corporations over the supposed beneficiaries of the system, music makers” (124). Over the course of the twentieth century, that is, publishers and record companies have been able to acquire musical works and wield the resources needed to produce, distribute, and monetize music. The 2000s, however, have seen the rise of a host of new production tools and online distribution platforms that can supply artists with new bargaining chips and commercial conditions for exercising their rights. Digital tools, including digital audio workstations such as Logic and streaming services such as Spotify, have been portrayed as offering high quality experiences while also being easy and affordable to use (Watson). Research has indicated that such optimism needs nuance, however; Spilker, for example, found that aspiring artists still lacked the recording resources of established companies and professionals. The ways in which individual artists appropriate new tools and competencies should also be seen in light of technology-related changes to the contexts of copyright use. The 2000s has seen a pervasive shift from CD sales to online distribution but also a marked growth in enterprises in need of music, including television series, advertisers, and computer games (Meier), representing a whole new environment for creative work.

Approaching Practices

Livingstone defines literacy broadly as the ability to “access, analyze, evaluate and create messages across a variety of contexts” (5) but underscores the fact that its realization is rooted in social practice and cultural context. This condition implies that the appropriation of new communication technologies is somehow locally conditioned, which is certainly the case for music. For example, the application of digital tools to recording and processing sound has varied across genres, so that indie rock represents a particularly puritan, “anti-technological stance” (Fonarow 46), as opposed to other, more receptive genres. The application of digital tools is also linked to notions of ownership, as reflected in hip-hop’s attitude toward collaboration and borrowing (McLeod and Dicola 23–25). According to Phillips and Street, artists’ attitudes toward copyright are “mediated by the identities that artists adopt” and “depend on their creative practice” (356). They also argue that musicians’ views on copyright rely on their “relationship to a profession, to band members, to their audience, and to a wider society” (Street and Phillips 431–32). This web of connections suggests the rights-related significance of aspects such as age, gender, and degree of affiliation with music companies or labels. It also draws attention to the specific role taken by the given artist with regard to writing, performing, and recording the music in question.

Existing research has not attempted to examine the individual artists’ level of knowledge about copyright law but rather to understand their attitudes toward copyright and the extent to which it is an incentive for artistic creation, by offering economic and moral rights (e.g., Schlesinger and Waelde). While measuring artists’ levels of legal knowledge would be an interesting research challenge, the ambition of the current study is instead to unpack the various technology-based practices through which artists exercise their rights. These practices might derive from artists’ legal knowledge or general strategic awareness of copyright but might also be the tacit product of accumulated experience and genre-related conventions.

A shared feature of the artists selected for this study is that they all write and perform their own songs, though the level of their engagement in record production varies. Furthermore, all are active in well-established genres, including rock, blues, and country, sometimes operating as individual singer-songwriters and sometimes in band constellations. Overall, they work according to the traditional model of first composing the key elements of a song (melody and text) and then making an optimal recording of it. This model distinguishes them from artists in improvisational genres such as jazz or the growing body of genres in which the composition of sounds is integrated into the creation of recordings, as is (often) the case with electronica and electronic dance music, or EDM. The alignment of this article’s informant group enables me to look at how artists within a traditional form of music-making have developed in the digital environment. Hopefully, the results will provide a basis for comparison with other genres of music as well.

The analysis to follow is based on interviews with eighteen artists in Norway, all of whom have experienced success within their respective genres.² There was an even split between male and female artists, with ages ranging from 27 to 42, meaning that their level of professional experience obviously varied. While music was their main vocation, some complemented their creative work with related engagements within music education. The younger artists (ages 27 to 34) had on average released two to four solo albums, while the older artists (ages 35 to 42) had released four to six solo albums. For at least some of these projects, each had collaborated with established studios and record companies. In order to encompass diverse experiences with contemporary production and distribution, I included some artists who had also invested in their own studio facility (ten of them) and record label (fifteen of them). The selection, therefore, also reflects the growing trend of artists working as self-employed entrepreneurs (Haynes and Marshall). A recent survey in Norway found a marked increase in artists releasing records through their own labels – from 23% in 2007 to 33% in 2017 – that was paralleled by an increase in the number of active members in the copyright societies of performers and composers, Gramo and TONO (BI 72, 82, 110). In the same period, the number of artists signing traditional record contracts decreased from 28% to 17%, while those using distribution contracts increased from 10% to 15%, indicating broad shifts in the way works under copyright are managed. The survey also found that the total income based on artists’ rights to compositions had increased, particularly from concerts, television, and online media. From 2007 to 2017, TONO’s income from online distribution went from less than a million to 14 million Euro, placing it among the collection societies with the highest growth rates in Europe (see Street, Laing, and Schroff for a comparison). However, the funds had gone to a smaller group of people, and one that was predominantly male. The top 10% received 70% of the revenues in 2017, and of the top 1%, only 10% were women (BI 112, 3). These overall patterns are mirrored by statistics in other countries (Tschmuck).

Of course, the Norwegian context has special characteristics. For one thing, there is substantial state funding for art, culture, and media that is part of its social democratic legacy and the so-called Nordic model of public-private cooperation (see Mangset et al.). Arts Council Norway, for example, supported the music sector with 39.6 million Euro in 2018, offering an alternative to the exploitation of copyright in music on the market (Arts Council Norway). It should also be noted that Norway is not part of the EU but has access to its internal market via the Agreement of the European Economic Area (EEA) and thereby also adopts EU directives. This means that the recent Directive on Copyright in the Digital Single Market of 17 April 2019 (EU) will be implemented in Norway in the years to come, underscoring the relevance of understanding the relationship between law and practice. As mentioned above, this study took place alongside a revision of copyright law in Norway finalized in 2018, allowing me to relate the practices, experiences, ambitions, and frustrations of the interviewed artists to the latest developments in the oversight of their copyright.

A bird’s-eye view of statistics and regulations arguably has limitations in terms of identifying the practices and interactions that underpin them, which can be revealed via the worm’s-eye view enabled by qualitative interviews (Kvale). Furthermore, as pointed out by Street and Philips, artists “rarely talk about the law, or at least they rarely talk about the law as either a lawyer or a policymaker would” (431). My investigative strategy in the interviews was therefore not to rely entirely on direct questions about copyright management but also to ask a range of questions about the artists’ ways of creating music (who is involved, what they contribute, what they are entitled to) and of conveying it (release strategies, cooperation with distribution partners, what the artists expect in return). These key themes also structure the account that follow, pursuing the role of technology in the creation of intellectual work before turning to how the music is made available. By taking their current project as a starting point, I was further able to establish a context for exploring issues of ownership and rights, and the exertion of such entitlements. I carried out the interviews over a period of one year, ending in the fall of 2018.

Creating Intellectual Works

My first impression of the interviewed artists was that they shared a very professional approach to their rights and the value of their musical work. All were members of the relevant organizations and collection societies for composers and performers, and all depended on the remuneration received through those arrangements. While some described their memberships and the registration of their works as a matter of routine, others were more actively engaged in the agenda, policies, and campaigns of their artist organizations, to which I will return. Some expressed a deliberate cultivation of their ownership rights concerning their works: “When my father, who was also a songwriter, heard that I was starting a band, he encouraged me to write the songs and register them.” Others indicated only a more fragmented understanding of the extent of their rights, acknowledging, for example, that they had only recently realized that they were entitled to remuneration when they performed their own songs at concerts.

Creating with Technology

Substantial variation also emerged in the ways in which they created their songs – that is, those “expressions of original and individual creative intellectual effort” that copyright law protects. All of the artists used a smartphone to capture musical ideas as they were conceived, and most used tablets and laptops (powered by basic recording tools, like GarageBand) to make sketches and demos of songs. Half of them, however, had also invested substantial amounts of time and money in developing their own personal studio facilities. Attics, basements, and garages were all used to accommodate a setup that usually included a microphone, amplifier, and laptop powered by a sound card and recording software, amounting to a basic investment of about 6,000 to 12,000 Euro. One artist vividly remembered how that spark was lit: “I was allowed to hang around in a studio with a producer who showed me the ropes, and I realized, I can do this!” The skillful application of these tools allowed for a professional level of recording of vocals and key instruments, meaning that these artists could transform their musical ideas into almost finished tracks for singles and albums. Some projects, however, required a larger studio to capture drums and wind instruments, for example, and external competency was often sought for the final mixing and mastering as well. Still, the technical proficiency of these artists enabled them to control the entire process from writing a song to capturing an optimal performance of it, leaving them as the sole owner of the copyright: “I have made everything, which means I don’t have to share 20 percent here and there,” one artist proudly summarized. The same artist also knew that they were the only one responsible for registering the work with the collection societies, where they could claim 100% authorship. For several of the artists, their appropriation of production tools was clearly linked to the cultivation of a sense of ownership and control over their work.

Creating with Studio Producers

In contrast, the rest of the artists followed the traditional model of approaching a studio and producer to make records. They did not have the knowhow or the tools to do it themselves, and most of them also sought an “artistic sparring partner” and “a professional to confirm quality,” as some put it. As the producers often had started out as musicians themselves, they would at times contribute to the recording by playing some of the instruments, for which they would be registered as performers and entitled to compensation for use (via Gramo). The interviews revealed that most of the artists had also experienced projects in which the producer was registered for a percentage of the rights to the composition (in TONO). This stake was usually noted as an “arranger share” and ranged from a “a few percent” to 30%, a percentage arrived at during the recording-studio work. Upon the initial registration of these works, the producer would also secure economic and moral rights for all later uses of the work, in recordings and concerts and for publishing purposes.

When asked what merited the ceding of one’s rights to a song, the artists had a number of answers, including “making suggestions to the melody,” “reordering parts of the song,” “adding instrumentation,” and “editing and processing the recorded sounds so that they fit together.” In general, the producer was associated with the realization of the song’s sound, which was developed in the studio.

Some of the artists found it difficult to recall how they had arrived at the allocation of rights, and others appeared uncomfortable talking about it, at least in specific terms. “It is a small price to pay for his [the producer’s] invaluable contribution,” said one, adding that “the record isn’t going to make much money anyway.” She appeared grateful for the opportunity to work with her preferred producer, and she planned to work with him again. Several of the artists even expressed a sense of pride that an esteemed producer would stand as coauthor of their work, the creative share of which was happily registered.

Furthermore, because these artists relied on renting the studio and producer (through their personal label), the production of a record represented an expense, and many of the artists were fully aware that there might not be a “next record.” Many of them had received support from cultural policy bodies for their record projects, and Arts Council Norway, for example, primarily based its grants on artistic quality assessments. This context sheds light on the artists’ ambitions for an alliance with a good producer. One explained: “I don’t have much money to pay the producer, and I think he becomes more dedicated to the recording when he also gets creator credits.” For several of the artists, then, sharing copyright was a way to stimulate team spirit and a sense of joint ownership that would make the producer go the extra mile for the sake of artistic achievement (on which the funding of a next project relied).

In most cases, the studio producer enjoyed their bargaining power based upon offering something the artist needed (recording technology and competency) and having more knowledge about what to expect from the artist (including a share of the copyright). The producer would say, as one artist mentioned, “this is the standard way of doing things, which was also the case for X and Y [other established artists].” Claims like these, of course, were difficult for the artist to verify. On the other hand, the interviewed artists also played active parts in this integrative negotiation with the producer by attempting to exploit their roles as songwriter and copyright holder. Sharing rights was a way to foreground what they might be able to achieve together, whereas the eventual revenue split was kept in the background.

Creating with Informal Networks

The artists with their own production facility also needed production support from time to time, “but the song is still mine,” one insisted. A personal studio provided an alternative to close collaboration, except for the more limited arrangements involving a studio to record drums or have someone mix a track. “When I need a helping hand,” one said, “I give one back, such as adding an instrumental track to a song or mixing a single.” These artists, again, had mastered the production tools required for this kind of arrangement, and exchanging files in need of something was commonplace. These integrative negotiations implied that the parties involved were very aware of what the other might contribute to the creative product, and both sides sought a long-term balance of exchange rather than exact pie-slicing.

Several of the artists participated in so many exchanges that they sometimes did not bother to specify their particular contributions or even have them registered. One recalled, “Once, I visited a friend, and just before I was leaving for the plane, he asked me to add a guitar line on a track he was making. It actually became a huge hit, making millions, but no one knows about my contribution.” Another very experienced artist said with a sigh, “Rights registration is actually part of the history of a song and should be able to carry the burden of success,” implying that truthful registration prevents conflicts down the road. It remained a challenge, however, to balance congenial participation in the ongoing exchanges of informal creative networks with rights use – that is, specifying and claiming ownership for one’s part in every work one made.

Creating for the Media

The interviewed artists not only made music for the consumer market of listeners but also for the growing media market of film, television, advertising, and computer games (Havens and Lotz). Almost everyone had been contacted by a television producer wanting to use one of their songs, and almost all of them had found it hard to exercise their rights in these contexts. “They wanted my music for free, in exchange for the marketing effect,” concluded one who had bit the bullet and accepted the offer anyway, assuming that the producer would otherwise have simply called another artist. It was only when highly popular songs were sought that artists experienced real bargaining power.

Media producers not only wanted to use existing records, however, but also to commission soundtracks tailored to their specific films or computer games. As there was typically no ready recorded alternative for the producers in these situations, the artists had more bargaining chips and could ask as much as twenty to thirty thousand Euro to write and produce the music of a television series. The majority of the artists had experience with such engagements, and all of those with a personal studio facility did this work repeatedly. One explained, “The sound quality required for most media productions is lower than for a record release, as the focus is on the visual storytelling, so I can do the entire production in my own studio.” In fact, some of the artists who did not have a personal studio said that the primary motivation for acquiring one was to take on such commissions without having to rent expensive professional studio time.

Though media commissions were considered both lucrative and creatively engaging, they entailed their own set of challenges for the use of copyright. One artist who was engaged to make the music for a television series found that “the producer interfered and pushed the music in a direction I didn’t want to be associated with, then engaged another artist without even letting me know.” Another realized partway along that “they [the production company] didn’t want the rights for a specific film release but for all future on-demand viewing across the world, as well as spin-off products. They wanted to own the music, but that wasn’t clear to begin with.” Some were taken by surprise by the extent of the rights that media producers sought and acknowledged a growing interest in “what’s written in the small print or between the lines.” One artist who had recently signed a contract for a computer game soundtrack was proud of having secured the right to release a soundtrack album and to use parts of the content in other projects.

In such media engagements, then, artists faced negotiating counterparts with specific demands regarding the creation of the music, as well as how it would made available to the audience, which leads me to the next part of the analysis.

Making Works Available

The creator of a work has the inherent right to “make the work available to the general public” (paragraph 3), as well as the right “to be named in accordance with good practice” (paragraph 5). Economically speaking, concerts clearly represented the most profitable avenue of exploitation for the interviewed artists. Two of them were not aware of their right to remuneration for the live performance of their work, as mentioned, and had therefore already missed out on tens of thousands of Euro. This indicates one’s vulnerability if one does not know one’s rights; in these cases, happily, they hurriedly learned the system and have since registered every concert with the collection society.

For most of the artists, income from record sales and online distribution was minute in comparison to concerts (on average, up to ten times less, recent research confirms; BI 95). Nevertheless, the interviewed artists invested a lot of time and energy in making records – some of them more than in playing concerts – for the following reasons: “I need to have good records to get people to my concerts”; “records are what people listen to a lot, while concerts are occasional”; “records are what gets reviews and critical acclaim”; “it is in the recording studio that my music finds it best artistic form.” This indicates the corresponding significance of their moral rights in addition to their economic rights – it was important to be heard and recognized as a creator of music.

All of the interviewed artists used social media, particularly Facebook, to spread information and links to their music, which they made available for on-demand distribution, particularly via Spotify. At the time of the study, streaming services like Spotify had already become immensely popular, offering users access to millions of tracks and giving artists access to millions of potential listeners. (These subscription-based services accounted for 88.6% of the income from recorded music in Norway in 2018, according to IFPI.) “With these media I can control my own releases and tours,” said one, “and not be worried about the label suddenly postponing my release date and cutting my marketing budget to the benefit of a hotter artist.” Several of the artists who were working through their own label had not transferred the right to “make the work available,” the independent exertion of which was clearly enhanced by new media.

Most of the artists used their control over distribution to press vinyl editions of new albums, even though they were not likely to be profitable: “I love receiving the first vinyl in the mail; it is the finest version of my artistic vision, with plenty of space for artwork, as well as full contributor credits,” explained one. In terms of reaching out to listeners, however, the streaming service of Spotify was considered unavoidable. (In 2018, 58% of the Norwegian population used Spotify, and it was the music service to which people in the Nordic countries devoted the most time, according to Jensen and Krøyer.) All of the interviewed artists had chosen to license to Spotify the right to make their music available, though they were often deeply ambivalent about this. “First of all,” said one, “after releasing an album, the revenues from streaming will cover only a fraction of the production costs.” For others, it felt a bit like giving the music away for free, recalling the arrangements with television series producers involving music for marketing. This took a toll on their sense of professional dignity. “Second,” continued the artist quoted above, “I have no idea how my meager payouts are estimated, but I am pretty sure some big fish are getting a better deal,” thus articulating the commonly held suspicion that independent artists were somehow being treated unfairly.

Spotify, interestingly, did not make deals directly with independent labels but instead required an intermediary distribution partner, such as the Orchard or Ingrooves, to handle the interaction. Several of the artists lamented the opacity of the terms of remuneration, and of their actual prospects for visibility through the service. “I want to be featured in curated playlists on Spotify, but I have no idea how those are made or what kinds of lists I might pop up in,” one admitted. In 2018, Spotify announced that its curated and machine-generated playlists represented 31% of all of the listening that happened on the platform, and that this percentage was growing quickly (Spotify’s DPO 4). While several of the artists knew that being featured on lists such as “Discovery Weekly,” “Morning Coffee,” and “Dinner with Friends” could trigger millions of streams, they were not sure how much good this did in terms of their musical reputations or popularity. “I think most playlist streamers just press play and go with the flow, without even noticing the name of the artists or the song,” one observed. In order to notice those things, of course, listeners had to pick up their devices and click through to the credits overview, which was often lacking in terms of specifying composers, lyricists, performers, producer, and other information about the recording. This sloppy crediting had long been an issue with Spotify, complained one artist, who found it challenging to figure out how to adjust this information (also noted by Eriksson et al. 74–75; see also Pelly on the opacity of the playlist flow). Furthermore, the most popular Spotify lists were seen to be tailored to accompany activities such as traveling, studying, or partying, which favored genres such as ambient and EDM over others. “But I have written my songs for focused listening, mixing my vocal loudly and centrally,” one critically acclaimed artist noted. He was therefore concerned that some of his songs might end up on inappropriate lists, representing a poor context for his work for new listeners and old fans. While several of the artists expressed related misgivings, none of them explicitly referred to their right “to be named in accordance with good practice” or their right to ensure that their works were not “made available to the public in a way or in a context which is offensive to the creator’s or the work’s repute or distinctiveness” (paragraph 5).

As mentioned, they righted the balance in such cases by pressing vinyl. Ordering a vinyl edition also offered them control over the economic exploitation of a record as such, and one artist eagerly showed me his spreadsheet tracking when sales would surpass the vinyl press costs, which usually happened. He found streaming to be opaquer in terms of revenue calculation, but he joined a few of the other artists in expressing a sense of optimism over how the streaming of tracks could accumulate over time and produce sudden popularity for one song or another. “I have more than one hundred songs on Spotify now,” another said, “where all my work is available for everyone, always.” He then proudly added that he was the sole copyright holder of this material. In general, the artists who were able to produce many works using their own recording facilities considered ownership in their songs to be an investment in a future dominated by streaming.

Discussing Rights

The artist interviews point to several links between technology use and the use of rights. First of all, new production tools clearly helped artists manage the whole creative process and retain (and cultivate their sense of) ownership of their compositions, as well as the recorded performances of them. Developments in the technological literacy of “creat[ing] messages across a variety of contexts” (Livingstone 5) appeared to be paralleled by developments in the literacy of copyright practices, including registering works and participating in rights organizations. Mastering new production tools made artists less dependent on other partners, which represented a bargaining chip when they did want or need to cooperate (Thompson). It enabled artists to exchange new services within informal networks, as well as take on commissions for external media projects, both of which requiring the strategic balancing of their creative efforts with what they received back for those efforts. Several of the artists also expressed the ambition of working as a producer for other artists, which their growing production competency supported.

About half of the artists had not developed this production competency, on the other hand, and still depended on a studio producer (who often had an artist background as well). As the analysis found, these interactions typically resulted in the producer obtaining a share of the rights to the composition and performance. Diverse accounts were given of the kinds of contributions that ought to merit ownership and copyright of what the law defines as “expressions of original and individual creative intellectual effort” (paragraph 2). The producer’s rights to a composition were usually referred to as an “arranger share,” even though copyright law never mentions arrangers or arrangements as such. The notion of arranger entitlements is, however, longstanding and part of a practice sanctioned by the collection society for composers in Norway, called TONO. TONO was established by the Norwegian Society of Composers in 1928 to manage copyright on behalf of its members. In its registration form for new works, arranger share is a standard category. TONO’s statutes do not actually define what “arranging” is but rather what it is not: “a) to alter dynamics, phrases, ornamentation, b) simplify, shorten or edit, c) transpose or transcribe), d) add non-innovative instrumentation, or e) similar alterations” (TONO). These rules seem applicable to the reorganization of a musical score but less helpful for distinguishing among the kinds of technology-mediated contributions that the interviewed artists pointed out, such as the editing and processing of a sonic style. The partial and hesitant accounts of these artists indicated a lack of clear guidelines regarding when a producer would be entitled to a share of copyright in a work, and what share it should be.

In general, neither lawmakers nor the collection society currently addresses the creative intellectual efforts that take place in recording studios, which reflects the tendency of copyright regulation and practices to lag rather than lead (2017 16). Such considerations are therefore left to the practitioners, and the resulting situation is more pragmatic and strategic than principled. It may be that the types of exchange logic that develop within informal artist networks are perpetuated by those artists who later sit in the producer’s chair. Likewise, informal rights agreements can be just, and justifiable, as part of a long-term collaboration among peers, but they can also be unfair when the parties have unequal bargaining power at the outset.

In terms of the rights to “make copies of the work” and to “make the work available to the public” (paragraph 3), it is well known that the transition to online distribution has made them hard to exploit economically. One response to unlicensed file-sharing was the streaming service, though, as already discussed, the prospects of streaming for different artists and genres are still unclear. Rather than a means of controlling the number of copies of a work that are available, streaming, to most of the interviewed artists, represented a marketing opportunity to reach listeners who might supply the artist with income in other ways (such as via concert attendance). This analysis pointed to some growing concerns with the marketing effects of streaming, in terms of adequately representing creator credits and of being featured in the constant flow of popular playlists. As mentioned above, creators do have the right “to be named in accordance with good practice” (paragraph 5), but what is “good practice” in the context of online streaming, and how might a demand for it be made? In general, the use of new technologies has introduced new debates about what is fair in terms of sharing ownership or licensing work for distribution.

Lawmakers are in fact interested in the challenges faced by creators in digital times, and the recent revision of copyright law proposed a “right to fair remuneration” (paragraph 69), based on the insight that creators tend to be the weaker party in negotiations with large industry players (Proposition 233). In the hearing, artist organizations supported this new paragraph but also “proposed a dispute resolution scheme, as going to court would demand so much resources that the right to fair remuneration would be hollowed-out” (237). The paragraph eventually passed, but the establishment of a resolution scheme for potential claimants was considered to be too “comprehensive” and left to be evaluated at a later date (243).

Another proposal that raised issues of fairness and utility stated that the employer or commissioner who financed the musical work was to own the copyright, unless otherwise agreed (paragraph 71). The lawmaker underscored that the purpose of this proposal was to clarify existing legal practice and to force work contracts to deal more explicitly with copyright (Proposition 251). This goal was in keeping with the revision’s overall ambition to make the law “a more effective and easily applicable tool” (9). However, artist organizations strongly opposed the proposal, arguing that it favored the commissioners and weakened the creators’ negotiation position (254). From the perspective of the creators, such a proposal would have dire consequences for the promising field of music-making for digital media projects, from films to computer games. To impact the lawmaking process, composer and performer organizations (NOPA and GramArt) launched a campaign encouraging their members to use social media to protest the proposal. Several of the interviewed artists participated in the effort, muting the sound on their music videos on YouTube and posting statements on Facebook about how important it was to own their own music in the interests of producing new music. The campaign, called #withoutmusic, reached beyond fans to catch the public eye and ultimately swayed the cultural politicians in Parliament to eliminate the paragraph in question – see #utenmusikk, the campaign’s main website.

The artist organizations hailed the removal of paragraph 71 as a major victory for creators, one that demonstrated the potential use of new media technologies to influence the interpretation and formulation of copyright law. The value of the removal for artists’ everyday interactions with their commissioners remains unclear, however. A key ambition of the revision was to mitigate ambiguity and conflict in collaborative arrangements, the challenges of which the present study reflects. As stated above, copyright law is continuously in the making, and new EU legislation also aims for fairness in the relationship between creators and users of copyright (Aguilar).

There may well be other ways to foster concord, of course, that might also bridge the gap between legal terms and daily industry practices, which evolve rapidly in the digital environment. Inspired by the Norwegian Press Association, introduced above, the music sector could consider the establishment of a code of conduct, including ethical guidelines for the relationship between creators and producers (including details around when arranging should trigger a share of ownership of recording projects) and creators and distributors (including details around what constitutes naming “in accordance with good practice”). Rather than await the intervention of lawmakers, representatives of creators, producers, and distributors could form a “copyright council” that could develop the code of conduct and also receive complaints regarding breaches of the code. Its decisions would not have legal status (the Norwegian Press Association, for example, does not assess cases that are tried in court) but could deem conduct to be within or outside of the professional standard of the sector. By being both accessible and transparent, the council could be a timely forum for the discussion of copyright (ab)use and enable insights into interactions and understandings that otherwise remain behind the closed doors of studios and distributors. This could represent a powerful vehicle through which the music sector could interpret and formulate the contents (and boundaries) of copyright law, thus becoming a resource for developing legal literacy among its less-experienced aspirants. The formation of such a body would benefit from a theoretical evaluation of the ways in which the rights granted by copyright relate to the rights of contract law and privacy law, as well as further practical assessments regarding how different parts of the music sector should be represented, both of which are beyond the scope of the current study.

Final Perspectives

This paper has sought to contribute to the understanding of copyright by beginning to unpack the relations between the appropriation of new technology, including the literacy involved in creating music across various media, and the exertion of copyright, including the allocation and registration of rights. The title of this essay alludes to a widespread perception of copyright as having limited value to artists in the 2000s, a perception it set out to test by examining the various ways in which it is put to use. Rather than focusing on artists’ attitudes about copyright, the study zoomed in on copyright’s role in their everyday creative practices and interactions, including the integrative negotiations that are required to realize the best possible work of art. The analysis confirms that artists’ relationship to copyright is mediated by their identities and milieus (Phillips and Street 356), and that the appropriation of technology is a big part of this mediation. Interestingly, most of the artists who had developed their own recording facilities were male, though a few were female, raising the question of the impact of gender upon not only the appropriation of new technology but also the ownership of one’s works. It might be, for instance, that gender-related resources other than technology also influence the creation of works and allocation of rights, though this also is beyond the scope of the present paper.

In terms of its generalizability, the present study comprises eighteen artists and only examines practices within traditional genres, including rock, blues, and country. The appropriation of new technology in these cases is likely to differ from that of other genres, including electronica, hip hop, and sample-based music, where new technology might have different ramifications for the creation of works, as well as creator credits. The present study has contributed to the raising of these questions and provides a basis for further comparison.

Acknowledgments

This article is produced in association with the University of Oslo research project titled “Music on Demand: Economy and Copyright in a Digitized Cultural Sector” and is funded by the Research Council of Norway [grant number 271962]. I thank the members of the research team, Professor Anne Danielsen, and the reviewers of Popular Music and Society for their valuable contributions. I also thank the interviewed artists that this study is based on.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Notes on contributors

Yngvar Kjus

Yngvar Kjus (PhD) is Associate Professor of Music and Contemporary Media in the Department of Musicology at the University of Oslo, Norway. Kjus is the author of Live and Recorded: Music Experience in the Digital Millennium (Palgrave MacMillan, 2018).

Notes

1. All translations from Norwegian to English are the author’s.

2. The artists include Amund Maarud, Bendik Brænne, Christine Sandtorv, Egil Olsen, Heidi Marie Vestrheim, Henrik Maarud, Ida Jenshus, Ingrid Olava, Jarle Bernhoft, Kaja Gunnufsen, Marte Wulff, Merete Pascual (Billie Van), Petter Carlsen, Pål Moddi Knutsen, Sandra Kolstad, Shaun Bartlett, Silja Sol, and Thomas Helland (Thom Hell).