Like all good foundations, the ones on which the media industry relies are usually invisible. We only see what is built on top – a flourishing, plural creative sector. Until, that is, it starts to collapse.
The media’s foundation is copyright. As dry and dull as concrete. But if you take the concrete away, a lot of buildings fall down. It’s the same with copyright and journalism.
We know this because we have been living it. The internet has undermined our foundations, messing up our relationship with our audience and crippling our business models.
Diminished and enfeebled over the last decades, things are only getting worse for the news industry. When copyright was undermined, we didn’t feel the effects immediately. By the time we did, it was already too late.
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Generative AI is widely predicted to accelerate the destruction, and it certainly has the potential to do so. The remains of the media could easily dissolve and drown in the AI-generated flood of garbage which is already flooding the internet and threatens to wash away what’s left of our businesses.
But, unexpectedly, the opposite could also happen. AI might be about to give us back a solid base on which to rebuild our industry and spark a new creative renaissance. One of our key foundations might be shored up and made solid again.
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Copyright was stolen from news business at start of online age
Copyright is a gloriously simple thing. Anyone who wants to copy work you created must have your permission. That’s basically it. There are few, and mostly quite specific, exceptions to this general rule.
The problem is that when the internet was too new for the consequences to be obvious, we made the big internet platforms one of those exceptions.
Laws like the Digital Millennium Copyright Act and the notorious section 230 of the Communications Decency Act in the USA, the e-commerce directive in the EU and others around the world created special legal immunities and exceptions which shielded internet businesses from many legal risks.
As a result, any content created by our industry, the result of our expertise and hard work, became fair game for their use. Everyone’s work was made theirs for the taking.
And they took it. This cost-free, risk-free, access to a nearly unlimited source of raw material, unhindered by copyright and other laws, stole the foundation of the media industry and handed platforms like Google and Facebook an extremely profitable one of their own.
They were able to build trillion-dollar businesses on the back of other peoples’ efforts. The plain fact of it is that they wouldn’t be worth anything without free use of “content” created by others.
I think, perhaps unfashionably, that generative AI might be about to change all that.
AI companies regard everything on the open web as fair game for them to use. Of course they do. If it’s OK for search engines, they say, it’s OK for them.
They have been using everything they can find, in private at first, and now very openly, to “train” their AI systems. They take full advantage of everyone’s work being available to them for free.
But what if it wasn’t?
Marc Andreessen, the quintessential Silicon Valley investor, knows the answer: “Imposing the cost of actual or potential copyright liability on the creators of AI models will either kill or significantly hamper their development.”
Worry less about over-hyped AI start-ups and more about world’s creators
It would cost him a lot of money, in other words. But, I would argue, it would produce much better outcomes for everyone else. Sam Altman says that OpenAI couldn’t exist if it had to get consent from creators. The news industry also can’t exist if AI continues to use its work to create a competitor.
The risk that the current generation of AIs might not be viable is muttered darkly, as if it’s a dire threat to the world. It should not be heard as such. If an early version of a new technology turns out not to be viable, innovators can return to their labs and try to improve it. The next version will be better.
If copyright poses a threat, it is not to AI per se, but to over-hyped, over-valued and over-funded AI companies. The world should worry less about them than the wider interests of creators, societies and the creative economy.
The argument is being played out right now. AI companies assert everything they do is allowed under the US defence of “fair use”. Others disagree, and the law elsewhere in the world also stands in their way.
The arguments are wending their way through courts and legislatures all over the world. AI companies will need to win all of them to get away scot-free. That’s a tall order, in my view.
If AI companies somehow win on this, we’ll remain in the online world we inhabit right now, managing our ongoing decline and watching as the internet fills with AI-generated grey goo.
What if news media wins copyright battle with AI companies?
But if they lose – and I think and hope that copyright will win – the internet will become a very different place. A better place.
It will seem quite small, at first. AI companies (and many others) will have to ask permission before they copy and use content they find online, just as copyright law demands. If they use stuff without permission, they’ll be running a gigantic legal risk.
The AI sector, and the activities of anyone else who is taking and using without asking, will need a reboot. Deals will need to be done, and maybe some AIs will have to go back to the drawing board.
The foundations of our industry, of the whole creative sector, will be re-solidified. The scope of fair use and legal exemptions will be narrowed. Not asking permission will be a bigger risk for tech innovators. The real role of creators and creative businesses, as the apex creators of value on the internet, will be recognised at last.
But are we ready? Not really.
This process of seeking and giving permission, simple as it sounds, has been left behind by technology. While everything else, not least copying itself, has been scaled up and turbocharged online, the mechanisms of copyright have remained stubbornly unsophisticated. Hardly surprising, given that the law made it irrelevant to the big platforms, and they are the ones who have largely turbocharged everything else. We have some catching up to do.
Fixing that is something which has to be done by those who stand to benefit. The media industry needs to take the lead in finding and funding a shared solution. They don’t have to start from scratch: a project I led for a while, The Copyright Hub, did a lot of the groundwork. There’s a simple explanation of what it was doing here. Now is the time to revive and accelerate it.
News media must snap out of its torpor
That, though, is just one piece of the jigsaw. The future of the media doesn’t lie in getting cheques from AI companies, or search engines, however large they might be. Being a mere content supplier to someone else’s company isn’t what we’re all about.
The bigger challenge will be to wake up and get used to the new reality. Content really will be king again. Creators will have the ability to capture more of the value their work creates for themselves, finally reversing a decline which has lasted for decades.
That’s quite a profound change to contemplate. For an industry accustomed to trying, and mostly failing, to operate within the constraints and rules created by others, regaining greater control will be a shock. Working out what to do, how products and business models can evolve, will need innovation and leadership. It won’t just be a question of turning on the money tap and watching bank accounts fill up.
This will be the defining challenge of the immediate future. The media, the news media especially, has become accustomed to failure. We have become used to adapting to environments created by others. Success is an outlier, sustained success even more so.
That’s one of the reasons we still operate in pre-internet silos, some specialising in video, others in words or music or radio-style audio programmes. Unlike before, it’s all delivered through the same devices, but we behave as if we are still constrained by the fundamental differences between paper, TVs and CD players.
And with so many of us pursuing limited revenue sources, we fail to collaborate, to share knowledge, to create standards or to focus on the needs of our collective audience. In the zero-sum internet where innovation is punished and profits are elusive, it’s every media company for themselves.
So media companies have all been following the same strategy: jump on the same bandwagon as everyone else and hope not to fall off.
Success in the next era will need us to snap out of our torpor. We’ll need to rediscover our entrepreneurial instincts and willingness to take risks. We’ll need to understand that we can take a lead in terraforming the new landscape online. Having learned our lesson after allowing the big platforms to swamp and control our fortunes, we’ll have to work out what would be better – for us, and our customers alike.
We should start by talking, and working out what we need to work on together to build our new foundations.
Our biggest risk is not being ready to win. Let’s get ready.
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