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Thursday, 27 May 2010

Digital Surrey Wash-up(!) : a bit more on the 2 monsters and #deact

#debill on Twitpic
Am I really that immodest to sit here and write that my own talk on copyright and the Digital Economy Act at Digital Surrey was fascinating? But I don't mean my actual speech! I'm referring to other people's fascinating contributions.

(Image: my flag at the #debill protest, taken by @saronimo and linked to Twitpic original as per Ts & Cs)

During both the hosted Q&A debate and in smaller groups after the talk I finally got to hear balanced views from all sides.  People from the music industry attended.  As well as local performers there were songwriters, a producer/performer who's worked with household names and has a very impressive discography, a studio executive and at least one PR/promotional agent.

Two things were striking - even those broadly in favour of a clampdown to protect copyright online did not speak like Feargal Sharkey or Simon Cowell of an overriding need to protect the poor performers or songwriters who's money is being stolen, nor did anyone talk of protecting Britain's creative industries as if a UK Act of Parliament can solve a global problem and make the UK recording industry a worldwide leader.

These industry insiders avoided emotive language and spoke sincerely with intelligence and understanding of the internet and online culture (mashups, posting clips of favourite acts in concert, 3-year-old children at home dancing to Beyonce)

And they acknowledged there was a human rights problem with the Digital Economy Act. It's a law that will pursue and punish broadband subscribers - the people who pay the bill - not the actual person who broke the law by infringing copyright.  I argued that this was a cop-out, chasing the easy target rather than the actual law breaker, and quoted my own analogy, asking who would want to own a car (or at least let anyone else drive their car) if number plates were treated by the law as IP addresses are treated in the Digital Economy Act?

That's not to say that some, whilst acknowledging human rights issues, still believed the Digital Economy Act was on balance good because it sent out the right message.  I found myself nodding, and had to stop myself!  This was a lax moment probably due to the free drinks from our kind sponsor iBundle!!

I shouldn't have been nodding in agreement because I don't agree.  Or maybe I do, a bit.  I fully accept that some people will be forced to change their behaviour, at least in the short term, because of this act. But I can't accept that a bad law which overturns the presumption of innocence and circumvents due process is ever the right way to proceed; particularly here in this case to tackle what is essentially a minor civil offence.

Foremost I predict any behavioural change as a result of this act will be a short-term phenomenon, secondly it will do nothing at all to stop the hardcore infringers - criminals who make a profit from mass reproduction, and thirdly it will affect innocent net users like myself, who are currently able to visit any one of a dozen local pubs and cafes and work over a coffee using free broadband.

Several attendees disagreed with my last point.  They took my car number plate analogy and turned it back on me, arguing that just as people continue to break the speed limit, cafes will continue to offer free WiFi.  It will be a full year and then some before we know the answer to this (there are still a few legislative hoops such as a consultation with Ofcom that need to be cleared before the first disconnection; the shortest time-frame specified in the act is a year).

The act was described by the Earl of Errol in the House of Lords as a "dream for lawyers". I think small businesses, pubs and cafes with something to lose will adopt and over-cautious approach, not wanting to get dragged into a costly and lengthy legal battle to establish their innocence, so will lock their networks down.

Conversely larger organisations such as schools, libraries and university halls of residence will be drawn into costly legal disputes whilst students in shared houses will argue between themselves as no-one will want to have their name attached to the broadband subscription which the house will share.

Discussion in this area was dwarfed by another theme I was hearing from the industry insiders.  Yes there is too much money being spent by the industry that doesn't go to the artists and producers who actually make the music.

But the people making this point didn't see a solution.  They argued any company who attempted to trim promotion costs found their records were selling even fewer despite the theory of "community promoted music".  We should all be buying what we see our friends buying on Facebook etc, but - or so I'm told - we're not!

I can't remember the exact figure, but I was told how much it costs a music promoter in terms of advertising and "lobbying" (my word) to get a single onto radio playlists, and it was a staggering amount.

Here we have a classic Catch 22 - or rather several circular arguments spinning at 45rpm.  The industry is spending vast sums getting music played in public via radio whilst lobbying for laws preventing music being shared by the public on the internet.  Music consumers aren't prepared to pay a rather sizeable 79p per track, but it costs so much because of the cost of promoting and advertising a single. Online radio stations happy to play niche or specialist tracks can't affort to operate because of the size of royalties demanded by the collection agencies.

All this takes me back to the two monsters I described in my talk, the monster each side created in their campaign for and campaign against the #debill.  The monster created by those opposing the bill was a by-product of their lack of understanding for businesses whose revenue comes mostly from royalties and rights.

The anti-#debill protesters were poking the grizzly bears jealously guarding their existing business, the campaigners were sometimes using flawed arguments such as copyright in the UK is 300 years old and is therefore outdated and useless given the internet.  Whilst the jist of this argument may have the ring of truth it's exactly because copyright is so old that the concept is ingrained across nearly everything we do in modern society.

Another well-meaning but perhaps counter-productive flawed analogy came from Lord Whitty who in a house of Lords debate described the journey Allegri's Miserere mei took to reach the public domain.  Papal decree prevented the piece being performed outside the Vatican, Mozart took his ear along, recorded the performance in his head and went home to torrent it via stave and clef, the fashionable music-sharing method of the time.  The Pope instead of fighting to preserve exclusivity relented and allowed the piece to be performed in public.

Again the papal analogy is flawed because it deals only with a single instance with very limited scope.  Today much of our modern economy relies on protecting intellectual property rights of some description.  The "set it free" argument  belies the "good" effects of copyright in society.  Copyleft or Share Alike mechanisms such as the GPL public license which force users of many open source software packages to release any improvements they make back to the public for the benefit of all is enforced via existing copyright law.

Copyright is pervasive and simply arguing that it's irrelevant on the internet created a monster that, coupled with some questionable strategies and a far-reaching lack of understanding of the opposition ultimately lost the battle and saw the Digital Economy Act passed.

Okay that's a bit harsh since the final act that passed had lost much of its bite thanks to the various groups campaigning against.  Further good news came when the new coalition government signalled that dormant web censorship provisions designed to stop infringement via non peer-to-peer file transfers, e.g. web downloads, were unlikely to be activated by this government.  Watch this space!

But by and large the monster created by the campaign against the act has already been on the rampage, done its damage, been captured and tamed.

The same can't be said for the monster created by the coalition of interests arguing for the Digital Economy Act.  The monster is still feeding from a massive undercurrent of dissatisfaction not just from rights activists but the industry's own customers and also many of the artists and songwriters themselves.

The disconnect of understanding between the two camps extends both ways.  Many in the music industry don't understand the culture of sharing that started well before the internet.  Home taping didn't kill music, but most of us who were teenagers in the 1980's borrowed at least one LP record from a friend and recorded it onto a C90 cassette.  Or did a spot of high speed dubbing on a twin deck!

The assertion that schools should teach children to respect copyright is somewhat patronising from an industry which has stubbornly refused change or learn its own lessons.

Leaks like the Mollet memo and the disgraceful stitch-up between Conservative and Labour benches that saw the bill pass through the elected chamber in 3 days at the fag-end of a discredited parliament have left a bad feeling in the mouths of a much wider audience.

The uproar generated in the battle that the campaigners lost still resonates not only on Twitter but also in Parliament, as this Early Day Motion shows.

Those still fundamentally opposed to the act have had time to reflect and consider the wider picture and some of the big problems that still need addressing: what will a new revenue model look like for artists and performers? How can we transition to the new model whilst accommodating the legitimate interests of existing businesses?

Journalists like @thoroughlygood are contemplating the issues on both sides, as in his piece I linked earlier.  The Digtial Econmy Act can be nothing but a stop-gap measure but we're no closer now to a solution on how to build a modern developed economy which fundamentally relies on innovation as a saleable and exportable commodity.

Governments aim to provide stability and a degree of certainty for citizens, businesses and the economy and are unlikely to drive disruptive change without clear sight of where that change is heading.  People are now starting to address this.

And it's not just the music industry cultivating a monster.  Firmly in the spotlight is the technology industry and its problems with software patents, and also a more general principle unnnerving many - that large organisations can "own" simple basic ideas or protect their image and trademarks so aggressively that small independent providers who resell, service or enhance these trademarked products can't mention said trademarked product in search engine adverts.

Big businesses are doing what comes naturally - protecting their business by creating barriers of entry for newer [innovative] players.  But without digressing even further into the relationship between big business and government I'll have to leave it here again, unfinished and without answers as yet more food for thought.

@JamesFirth

1 comment:

  1. I think content owners need to re-think the business they’re in and how best to bring their products and services to market. 

It’s pointless to try and fight the fact that consumers now find information through search engines or RSS feeds. Better to embrace this shift, and understand that this is how modern content works and figure out new ways to profit from it. For example, Microsoft might not like the fact that Google gives its software away for free and makes its money from ads, but they still have to adjust to this as a business reality. 

In a wider sense, the foundations of the net were built on freely exchanged ideas: Perl, Apache and the web itself. A lot of commercial success and underlying innovation online has been based on trust and reciprocity. After all the web is a global and democratic medium. The current view of copyright owners is out of step with this culture. Instead of openness and trust there’s a fixation with control and limitation and a DRM philosophy that all consumers are guilty until technically forced to be innocent. It’s certainly bad for business.

    I think Apple would sell even more iTunes if there was no Digital Rights Management (DRM) restrictions on what consumers could do with the content they supposedly own. Not that iPod sales are of particular concern to Apple at the moment, but in the long run closed systems always fail. 

Industries believe they have the right to exist in their current form with, in some cases, excessively high profit margins (such as CDs versus digital downloads) or protection by unreasonably long patents or copyrights. In the music industry, for instance, there’s no reason why a few individuals couldn’t earn less and a far greater number earn more. 

The present arrangement which vastly overpays a minority does not guarantee better quality than other potential musical creative systems.

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