Research

Can You Copyright the Act of Curation? And What Constitutes Curation Anyway?

The Free Speech Flag – the illegal number represented as RGB colour blocks

It may amaze you to discover that there are such things as illegal numbers. Yes, it can be illegal to possess or distribute certain combinations of the digits 0 to 9. Here’s one: 1x,25x,278,887,98x,457,65x,018,865,901,40x,704,640. Just to be on the safe side, I’ve replaced some of the digits with an x in order to be sure that I’ve not distributed such a heinous thing as a criminal number.

Here’s the thing. The above is illegal because it represents a cryptographic key; a number that can be used to decrypt a piece of information. In this case, the number is the key that unlocks the contents of a blu ray disc, thus enabling the contents of the disc to be disgorged upon your display screen and audio system. Now this number is used every time you press the play button on your player, or when you do the same with software on your computer. To press play that is. If you use the number to copy the contents of the disc, then you have breached copyright and if you get caught, and especially if you’ve shared the contents of the disc, you will be in big trouble. So we are living in an age where copyright defines what numbers are ok, and what ones are not. You couldn’t make it up.

There’s more of course. The case of the (public domain, US taxpayer funded) NASA video of the Mars Rover landing, being slapped with a DCMA takedown notice springs to mind. And there are others. There’s the entertaining case of Prenda Law who ‘battle copyright piracy’ (Ars technica is the place to go for the truly mind blowing story of what’s been going on here). The application of copyright to the digital age is proving to be messy and ugly at times, and let’s not go into the legislative battles right now.

Now, there’s a service called Spotify that aims to make money by streaming music to its userbase. As I type this, I’m listening to Spotify. It’s a marvelous service; provided in both free and paid for versions. I use the paid for version, and it’s just about the best spend of £10 per month there is. For £120 per year, I get unlimited access to the entire library of music that Spotify has. It’s a big library. Now, no doubt you have heard of Spotify (if you haven’t, go take a look and then be a good citizen and pay for it, or any of the competitor services that are out there) and may well have read, or indeed formed your own, opinions on whether this is a good thing, or the end of the music industry as we know it (yawn). Just to nail my colours to the mast, the music industry gets £120 per year out of me. It’s more than they got out of me for many a year (ever since CD took over from vinyl if you must know). My view is that if the industry can’t work out how to distribute that cash effectively then they ought to bend their will to that issue. Screaming at the service(s) that likely represent the future of music distribution isn’t a particularly productive thing to do. But this post isn’t about that. It’s about copyright.

Spotify is an entirely legal service. They pay for every single stream of every single track to every single user, whether that user is a paying customer (like me) or a user of the free service. The rights have been cleared. No rights, no music stream. Just to be clear, even Metallica and Pink Floyd have their music on Spotify, and both those bands have a finely tuned understanding of the monetary worth of their material. So I was somewhat surprised to discover that Spotify is being sued for copyright infringement.

Before digging into why, it’s worth looking at who is doing the suing. The Ministry of Sound (MoS) is the organisation in question. It started as a nightclub in London in the very early nineties. It’s aim was to bring the House music coming out of Chicago, New York and Detroit to London. The thing about nightclubs that emerge to showcase a trend, is that their existence is precarious. One article in one über cool magazine (it’s the nineties remember, social media doesn’t exist yet, and the Internet is a nerd thing) and your entire business model has just evaporated.

So MoS did what any smart business does, it diversified. A music label and nightclub franchise are the logical things here, along with merchandise and brand sales. One of the things they did, was to package up a version of the nightclub experience. In fact, not just the nightclub, but the whole temporal component of any given collection of similar musical tracks. I’m talking about the compilation album, which as any aficionado of music knows, is much much more than just chucking a load of tracks on a tape or CD. Just ask Nick Hornby:

The making of a great compilation tape, like breaking up is hard to do. It takes ages longer than it might seem. You gotta kick it off with a killer to grab attention. Then you gotta take it up a notch. But you don’t want to blow your wad. So then you gotta cool it off a notch. There are a lot of rules.

The MoS compilations not only aimed to define what was on trend, but also to package up a whole series of adolescent and young adult memories and sensations into something that they could obtain £20 for on a regular basis.

Some of the music in the compilations was/is released on the MoS label. But most of it isn’t. So MoS has to do what Spotify does. Obtain rights and enter into agreements for the reproduction of the music in question.

Back to Spotify.

One of the things you can do inside the platform, is build playlists of music you like (sidebar: I now have an awesome playlist of Pink Floyd live, a package that they’ve never sold themselves). Those playlists can be public or private, because your business model must have the social network and whatnot or it isn’t worth a thing. The playlists are completely legal.

Or are they? Ministry of Sound contend that the order of the music as defined by their compilations is an act of curation that is worthy of copyright protection. You can see why they are bothered. You package up a bunch of tracks, do your marketing, set it up for physical or virtual distribution and then some kid in a bedroom somewhere, immediately goes and knocks up a perfect replica of your hard work, on a service like Spotify. If MoS wins, not only will we have illegal numbers, but we’ll live in a world where the juxtaposition and organisation of digital entities can be illegal if somebody else did it first.  I can’t help but think that a world in which a DCMA style takedown notice could be enacted just because a person has replicated a particular pre-existing juxtaposition of digital items even if all the rights and permissions are all squared away is mad. I’m okay with MoS asking for the use of their name in a playlist to trigger a renaming of the collection, but that’s trademark law, not copyright.

Now, in discussion with a fellow chef, the idea that this might be an issue to do with copyright as it pertains to databases came up. Now, you can’t copyright the facts that are in a database but you can exert property rights over the particular construction of a given database – so if you are an A&I database producer then you have protections over all the effort that goes into the construction of your assemblage of facts and the presentation thereof. But to my mind (and excluding the fact that this doesn’t appear to be the legal approach that has been taken) it’s hard to make a case for a list of tracks qualifying as some sort of database worthy of this protection.

Curation isn’t a trivial act. Or at least it shouldn’t be. To what extent is the resulting collection of curated things worthy of protection, and how broad should that protection be? What constitutes an act of significant curation? It’s like art; you know it when you see it, but good luck coming up with a solid definition.

What happens when technology renders the business model of a particular curation process (here the noble compilation album) obsolete? What are the rights of the packager, and should those rights be exclusive?

You start to think out the ramifications of a victory for the Ministry of Sound here, and the digital ecosystem could be fundamentally altered. It’s unfortunate (to put it mildly) that these sorts of questions go to litigation for an answer. The process seems to me to be fundamentally unsuited to resolving these kinds of questions. You can’t resolve the deep issues thrown up by this case via the adversarial process. But still, here we are: Spotify vs The Ministry of Sound with an argument over who controls the juxtaposition of links to legally consumable and shareable digital objects. This case is one to watch, and watch very carefully indeed.

Discussion

9 thoughts on “Can You Copyright the Act of Curation? And What Constitutes Curation Anyway?

  1. I don’t know the detail of the Ministry of Sound case, but the general point–Should you be able to copyright curation?–seems to me to require an affirmative answer: Yes, you should be able to copyright it. Whether it’s a prudent business practice to pursue infringers is another matter.

    Posted by Joseph Esposito | Sep 12, 2013, 9:13 am
    • And I agree, but now write a definition of what curation is. A specific, objective one that sets thresholds that must be met in order to pass the test of curation. As to the business practise – well I think that litigation sets precedents and those things can have a chilling effect on innovation and creativity.

      Posted by David Smith | Sep 12, 2013, 10:01 am
  2. I’ll weigh in here on the database issue.

    First, it really depends on which country the lawsuit has been filed. Every country seems to have different regulations on such things, and it’s important to recognize the differences between things like “fair use” in the US and “fair dealing” in Commonwealth countries.

    Compilations and databases do receive some level of protection in most nations. You can’t copyright facts, but you can copyright an assembly of facts into an original piece of work. You can’t copyright phone numbers, but if you take the time and effort to assemble a phone book, someone else can’t just take your work and re-sell it under their own name. Google often creates some fake search engine responses that they track to see if any of their competitors are swiping and re-using their results.

    The real question though, is what is the minimum threshold of creativity required to qualify? Does a playlist, collecting a group of songs in a particular order reach that threshold level? That’s probably for a court to decide, but in the US at least, this law resource lists the following guidelines:

    http://www.nolo.com/legal-encyclopedia/types-databases-eligible-copyright-protection.html

    Minimal Creativity Required for Protection

    A work must be the product of a minimal amount of creativity to be protected by copyright. This requirement applies to fact compilations as well as all other works. The data contained in a factual compilation need not be presented in an innovative or surprising way, but the selection or arrangement cannot be so mechanical or routine as to require no creativity whatsoever. If no creativity was employed in selecting or arranging the data, the compilation will not receive copyright protection.

    Posted by David Crotty | Sep 12, 2013, 9:20 am
    • “You can’t copyright phone numbers, but if you take the time and effort to assemble a phone book, someone else can’t just take your work and re-sell it under their own name.”

      Not true. See Feist v, Rural Telephone for just this scenario. The U.S. Supreme Court held phone books are not sufficiently creative to warrant copyright protection.

      As you note from the Nolo site, you can get pretty thin copyright protection for a selection and arrangement of facts. It just has to be a more creative selection and arrangement than an alphabetic list of names with accompanying addresses and phone numbers.

      Posted by DRL | Sep 12, 2013, 6:07 pm
      • Thanks for the correction, it sounded like such an easy cliché to use there. Geez, and the court case dates to 1991! I’m so out of date, should have found a better example.

        Posted by David Crotty | Sep 12, 2013, 6:21 pm
  3. So we are living in an age where copyright defines what numbers are ok, and what ones are not.

    The idea that copyright law creates “illegal numbers” strikes me as a pretty significant exaggeration. The law doesn’t make the numbers themselves illegal; it puts limits on how encryption codes can and can’t be used. It’s the use of the numbers that is or isn’t illegal, not the numbers themselves. (Similarly, the law doesn’t allow you to make copies of my house key without permission and distribute them to members of the general public — but that doesn’t mean the copies are made out of “illegal metal.”)

    Posted by Rick Anderson | Sep 12, 2013, 9:20 am
    • That’s not how it’s been explained to me, and we aren’t just talking about encryption here, but code as well. “Distributing’ the number is the issue. Which is why I played it safe.

      Posted by David Smith | Sep 12, 2013, 9:56 am
      • Exactly — in both cases (the encryption code and the house key) it’s against the law to distribute them to the public, because their purpose is to provide access to someone’s property. It’s the phrase “illegal numbers” (and the idea that “copyright defines what numbers are ok, and what ones are not”) that strikes me as off-base. Numbers themselves don’t have any legal status. The activity of giving numbers out may or may not have a legal status — depending on whether, by so doing, you’re deliberately giving people access to other people’s stuff.

        Maybe a more apposite example would be the four-digit code that opens my garage door. If you were to give that code away to the general public along with the information that it will open my door, I suspect the law would have something to say about that. But that doesn’t mean that the law has defined my four-digit code as “illegal” or “not OK.” It just means that there are both legal and illegal uses of it. The same is true of words. And hammers.

        Posted by Rick Anderson | Sep 12, 2013, 3:02 pm
  4. If you were spending less than £120 a year on CDs before Spotify came along, you were either committing theft on a grand scale or your life is a depressing cultural desert.

    Posted by Paul | Sep 12, 2013, 11:10 am

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