Platform rule No. x, own drawing

In a recent blog post, Amy Thomas from the CREATe center at the University of Glasgow suggests that contractual provisions can have – not least detrimental – effects for creativity on digital platforms. She points to uncertainty of users generating content (UGC) on platforms as their creations are regulated by a complex and often confusing “combination of legal, technical and contractual features,“ and particularly issues rising from the multiple (contractual) terms and conditions every platform develops, the T&Cs. Platforms do not disclose properly what they are allowed to do with users’ creativity and related intellectual property (IP), and hide behind legalese contract provisions. Thomas concludes that the complex regulatory “tapestry” eventually leads to an imbalance between platforms and users, perceived regulatory uncertainty of users and even “legal mandates to change the law without the legislative process.“ Instead of fostering creativity, platforms’ regulatory environments put “users in a confusing, and potentially vulnerable, position.“

Building on these valuable insights I want to add some thoughts about platforms’ T&Cs and how they aim at influencing the creative practice and thus the composing and production process of music itself. I take a look at professional creation platforms in the music business, which I distinguish from platforms typically engaged with UGC as they approach professional creatives to create and sell creative products. I am less interested how platforms safeguard appropriation of UGC through T&Cs, but rather how T&Cs influence and constrain the creations themselves. I argue that it is particularly the T&Cs where platforms sidestep regulatorily difficult to handle, usually IP-related creative practice and thereby also factually “change the law without the legislative process.” This is, however, not to say that UGC-platforms’ T&Cs do not affect creative practice. Yet, the direct and open monetization on professional creation platforms particularly incentivizes the avoidance of any regulatory uncertainty and the implementation of constraining T&Cs. I present two short vignettes, one about restricting usage of IP-related music practices, the other about demanding a certain creative handling of musical material for the case of using music samples.

Platforms might use their T&Cs to constrain the music practices they allow. As part of research about musical similarity in high-commercial music environments (for now only available in German) I investigated the online platform and production-music environment AudioJungle. This platform is used by professional music producers who create music for further usage in media products like films, TV-series, web-videos, presentations, and many more. They sell their music via the platform AudioJungle. However, the platform has a system of acceptance and checks whether or not pieces of music conform to their regulatory standards that they term “content requirements”. Besides qualitative regulations concerning the technical or sound requirements that handle a song’s quality, the platform’s interpretation of copyright regulation plays an important role to get songs accepted for sale. The platform has multiple documents in place informing the creators about copyright on AudioJungle. Though these documents are not restricted to general terms and conditions, they all have regulatory weight and creators refer to them as platform rules. Particularly interesting is how AudioJungle erects strict boundaries to not-allowed music practices in their Pastiche Policy:

Here are some examples of what’s not allowed:

– replicating, mimicking or parodying copyrighted recordings

– remixing or reworking of copyrighted recordings

– sampling copyrighted recordings

– copying the melodic phrasings of a copyrighted recording

Though these music practices have generally troubling relationships to copyright, the platform terms are even more restrictive then copyright itself. I am of the impression that the platform uses their T&Cs to somewhat “get rid” of problematic music practices.

In cases were platforms actually foster the usage of music samples, they might use their T&Cs to handle creative control over samples. Many online platforms in the music business act (among other) as marketplaces for musical material like samples, loops, or one-shots and commercially distribute them. Looking at the T&Cs of these platforms, I found (unfortunately as well in German) that beyond the constraints posed by copyright itself on the music practice of sampling, the platforms’ T&Cs can include some quite instructive/restrictive regulations. For instance, platforms in these markets regularly include contractual provisions that determine usage of the purchased music samples. It is common to demand that sample usage is transformational. Often this is accompanied by the general claim that music samples’ function is to inspire musicians, which can only be achieved through transforming a music sample substantially:

(…) you use the Sound Product(s) only within your own newly-created sound recording(s) in a manner that renders the Sound Product substantially dissimilar to the original sound of the Sound Product in each case. (Noiiz, Terms and Conditions)

This forced transformation of music samples qua contractual provisions opposes traditional creative conventions of sampling culture, where referentiality plays a crucial role. Samples acquired on a platform, in contrast, are not valued for what they are, but for what they inspire an artist to become after transformation. Still, transformational usage of preexisting ideas (or in this case prerecorded pieces of musical material) is no requirement of copyright law but solely a contractual obligation imposed by platforms. However, to contextualize this forced transformation legally, it seems to be quite in line with the recent ECJ verdict concerning the German sampling-court case Metall auf Metall, where the possibility of legal sampling is restricted to samples in “modified form unrecognisable to the ear”.

To take a glance into the future, current regulatory developments in Germany could well stimulate platforms to include further terms to T&Cs that influence creative practice. Section 5 of the novel “Act on the Copyright Liability of Online Content Sharing Service Providers“ regulates pastiche as a form of building upon existing creative material without authorization of rights holders, yet with obligation to be appropriately monetized by the platform that makes the pastiche publicly available. Though, one can argue that this fosters regulatory certainty with regard to liability and obligations, it is still a very open question what constitutes pastiche legally. Adding to this, instead of regulatory, there might be economic uncertainty rising what an “appropriate” payment for material used in a pastiche actually is. Platforms could deal with both issues through provisions in their T&C, while possibly limiting the usage of pastiche or the provenience of material used by a pastiche creator.

As I showed with two vignettes from the music business, regulating IP-related uncertainty through contractual provisions likely builds on a narrow reading of copyright. Still, for scholars interested in alternative approaches to copyright and IP in general, T&Cs offer great data to question how organizations find their “own”, alternative way around regulatory uncertainty. Studying T&Cs sheds light on creative practices entrenched with regulatory uncertainty about copyright, and also what kind of measures platforms are willing to take to avoid, cope with, or possibly even foster regulatory uncertainty. They indicate how (and if) regulatory uncertainty about copyright translates into risk-averse and creativity-stifling contractual terms. From a broader and more positive perspective, however, the flexibility and openness of T&Cs can be helpful to deal with copyright issues and uncertainties in a case sensitive way.

Linking back to Amy Thomas and the uncertain relationship between UGC and platforms’ T&Cs I see at least two ways how terms and conditions influence creative practice. They obscure how platforms handle emerging creative artefacts and they constrain what kind of creative artefacts are permitted to emerge in the first place. It would be interesting to take a look how and when these two coincide or in what additional ways T&Cs are implemented by platforms in a copyright-relevant manner. Further empirical research is needed to differentiate more clearly what and how T&Cs of digital platforms actually do, the practice and performativity of contractual provision. Comparisons between sectors of creative industries as well as the changing copyright regulation throughout Europe (and differently within the single nation states) offer important angles to investigate the potentially growing significance of contracting regulatory uncertainty about copyright.