In his book, Noise, Jacques Attali makes a startling assertion – that music is the vanguard of revolution. Changes, he says, in the relationship between music and the economic and social structures that govern its position and remuneration prefigure fundamental changes in those structures themselves.
He’s probably too busy to publish an update, but with file sharing, unbundling, streaming, and UGC, the quarter century since the last edition has been a carousel of economic and social beasts for music to try to ride. In the music industry itself it became a truism that what happens first to music happens next to other industries. Now, in 2021, it’s worth asking, at whose volition do such revolutions arrive? And is it possible to make a collective choice, based on some ideas of rights and values, rather than concede to the brute force of wealth and power?
Attali’s Noise is a complex and dense work. I’d been struggling through it with the effort of an untrained reader, dealing as well as I could with its formal language and concepts, when the UK’s Supreme Court handed down a judgement in favour of Uber drivers. The drivers had challenged Uber’s view that each of them was an entrepreneur, a sole trader, a business, and that they therefore had none of the rights and protections of employees.
Uber itself had been founded by someone known to the music industry, Travis Kalanick, whose ‘Scour’ peer to peer filesharing application was part of that music industry carousel. Fairwork, a project based at Oxford University’s Internet Institute, tells the story with Yaseem Aslam, one of the drivers.
You can find the podcast here: https://shows.acast.com/fairwork-podcast/episodes/003-contracts
What comes across strongly as Yaseem speaks is his sense of entrapment. What seemed at first like a liberation from the constraints and sometimes unfairness of an industry based on human decisions turns, ride by ride, into a world of harm and unaccountability, an active rejection by Uber of responsibility towards the drivers.
It’s possible to see this simply as regulatory arbitrage, and an application of Clay Christiansen’s ‘disruptive innovation’, with Uber unlocking assets that had previously been under-utilised – the drivers’ cars and in many cases the time they would have spent with families or sleeping. But, listening, I couldn’t help thinking of Uber’s share price, and it seemed to me that Uber had managed to convert not just the surplus from their labour, but also the safety, freedom, self respect, and the human rights of the drivers, into wealth for its shareholders.
Attali makes a distinction in his book between singing for money, and being paid to sing by an employer who makes a profit from it, the same distinction that the Supreme Court had been asked to decide for Uber’s drivers. Only paid employment is ‘productive’, he says, by which he means that the profit can be used to fund production of more things that can be sold for profit. In Attali’s terms, artists active in the music market have a better and stronger position than drivers hailable from the Uber app, because they have copyrights that they own and on which they collect rents. He looks ahead to other workers having a similar relationship with their output.
Thorstein Veblen, the thinker who gave the world the term ‘conspicuous consumption’, also gave us ‘conspicuous leisure’, – activity with no purpose beyond the honour it conferred. And he counted music as one of the most typical examples. He seems to have been a dour character, railing against decorative brickwork for instance in his most well known work, The Theory of the Leisure Class.
In a Veblenite world music’s job is to remind the rest of us that some of us are rich, – rich enough to do, or pay someone to do, something he thought had no ‘serviceability’, – an analytical framework that seems as impoverished as many musicians are today. But given that many musicians choose to make music without being asked it would be just as unreasonable to insist on minimum wage or sick pay as it would to allow a taxi driver to force unwanted trips on us in order to get paid.
So, in a culture that defines excellence as much in market terms as in empirical or hedonic, copyright seems a reasonable instrument by which to encourage and reward the better music makers, with little harm to the other music makers or to the public. Better, I suspect, than expanding the patronage power of government officials; we probably need less rather than more government approved music and art. And it is surely better than a return to the pre-copyright model of private patronage; why in the 21st century should the rich define our musical culture?
Copyright however requires a market. And a market is not just supply and a reciprocal flow of money; it also needs some evidence of selling and buying, and of prices being set, investments being made, evidence of entrepreneurial activity. Otherwise it is a simulacrum of a market, not the real thing. But the new terms of engagement between music and the social and economic structures in which it operates are now defined by platforms, just as Uber defines the terms of work for its drivers. Platforms are not markets; rather, platforms have strong incentives to destroy markets, just as they try to destroy the rights and protections of labour.
The words of the UK Supreme Court in the Uber case help, by analogy, to illuminate this point:
“Drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance.”
UK Supreme Court Press Statement, 19 February 2021
This in a context where the court found that despite all the contracts and legal texts Uber put forward, really it was Uber and not the driver who sold the customer a ride and Uber’s employee who drove the car.
How similar this looks to the position of a musician, who cannot bargain with Spotify, Apple, YouTube, Amazon, or Facebook, but must accept the terms offered, spend more time promoting, make more music, and hope to be selected for a playlist. This was in fact explicitly the advice from Spotify’s founder in an interview in the Summer of 2020. ‘Work harder’ he said, because the new model is effectively ‘always on’, so if you are a driver – sorry, a musician – you should be either releasing or promoting non-stop.
This new model sees copyright as an administrative nicety with no marketability. A routing key for content in and money out. The incentives for creators which previously had justified copyright’s place in law and society, incentives to invest time, effort, and imagination in new music for the benefit of the public, vanish, set aside by the imperatives of platform life. And, far from destroying the value in those copyrights, music platforms convert that copyright value into wealth for shareholders, just as Uber does with drivers’ rights.
And yet I suspect that few music makers would readily exchange copyright for zero hours employment contracts, particularly those on the losing side of the zero sum game which is the monthly subscription revenue pool share-out. And this presents us with a dilemma, because alongside the millions of musicians who spend more on their music making than they earn from their music there are thousands for whom music is work and sustenance. Minimum wage, income tax and national insurance contributions, sick pay, lack of insurance against copyright theft, all fall on the musician, and particularly onerously on those in the twilight zone between the start of a decent part time income and being popular enough to hire an assistant or two.
So on the one hand society tells musicians, ‘you are not workers, you are creators, and the gift of copyright allows you to make fair and rewarding bargains in the marketplace’, while on the other hand it removes any practical ability to strike that bargain or to protect those property rights from encroachment, counterfeiting, and appropriation.
If, as Attali suggests, music prefigures revolution, it would be nice to think that it will be one in which the dignity and rights of musicians are protected, just as Uber’s UK drivers’ rights should be following the court ruling. The music industry, I suspect, would prefer to do the minimum necessary to avert a revolution, while musicians and audiences would, given a choice, have more ambition. There is at present however no obvious path to free music from its ongoing ‘platformisation’, and with it the disempowerment of copyright.