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Tuesday, 30 November 2010

BPI still entrenched in Digital Economy Act debate at DEAPPG

This afternoon's workshop session on the Digital Economy in the House of Commons was extremely useful, but the entrenchment of the BPI was still obvious.  (I'm not an impartial observer, so I would say that, wouldn't I; but this is after all my blog stating my views.)
Other people's take on this:
 - trefor.net
 - DEAPPG Blog
A fair amount of time was spent covering old ground, including, frustratingly, the legal liability and potential problems facing public intermediaries and other subscribers who allow third parties to share their internet access (such as schools, businesses, hotel owners, shared accommodation etc).  I say frustratingly because this was covered in depth earlier this month during a session at the British Library entitled Public Intermediaries and the Digital Economy Act  (blogged impartially here by @copyrightgirl).

During heated exchanges I noted I don't remember seeing the BPI turn up to listen or participate in the excellent detailed discussion at the British Library. Although I was corrected - a BPI representative did attend - I highlighted the absence of the BPI's main "attack dogs"!

I was however impressed with FAST's Julian Heathcote-Hobbins' balanced pleas when putting the case for [software] rights holders, reminding me in my enthusiastic opposition against the illiberal measures in the Act that there is still a problem to be solved - protection of intellectual property rights - and no-one has come up with a better solution.

I reminded the session of the disparity between various laws protecting rights holders, a problem which I believe makes it hard to educate young people on the subject as the mishmash of laws and regulations defy logic.  The writer of a book gets copyright protection for 70 years after his or her death, yet music performers get a flat 50 years' protection (soon likely to become 70 years) from the date of publication for recorded music.  Films follow similar rules to books, taking the death of the last remaining director to trigger the 70-year timer.

Disparity in protection

The protection afforded to copyright holders is far greater than that given to patent holders - a flat 20 years from application date - yet this doesn't seem to affect the pharmaceutical industry's willingness to invest in research and development, where the cost of developing a new drug is quoted in this article at $800m.

The $800m figure is far higher than the cost of even the most expensive feature films ($300m), yet the film industry gets around 5 times the length of protection.

Furthermore the 20-year timer on patents generally starts at the time the company needs to go public - the start of trials - yet a well-placed source in the industry tells me it can take 4-8 years to take a drug through the rigorous approvals process, meaning the drug is left with a mere 12-16 years of patent protection.

Of course the arguments are complex, and drugs are a completely different product to movies, but I think it's worth examining the discrepancy and highlighting that big pharma is still investing in new products despite the limited length of IP protection.

What is creativity, anyway?

Yes I understand that authors and performers have rights - rights to be rewarded and rights to control their work.  But there is symbiosis between performer and audience.  Without audience there is no publicity and no royalties.  And it's a complete fantasy to claim that without copyright protection new works would not be created.  Maybe the creative industry would die, and I concede that this is not desirable and that's why I'm not arguing against copyright as a concept, but in the absence of copyright I'm confident people would continue to express their creative talents and share them with others.

It's also worth remembering that most "new" creative works draw heavily on past culture, and as such owe a lot to past masters.  William Ralph Inge is credited with the quote "What is originality? Undetected plagiarism".  Personally I think this is rather extreme, as it undermines the creative input of each author or artist; but it's a sound bite that challenges the role of the author or artist as the sole input to their works.

Beatles -> Oasis.  Kate Bush -> Florence and the Machine.  Orson Welles -> Stanley Kubrick.  Each generation builds on past generations and there's a strong argument that music, films and books which both draw on past culture and become cultural icons themselves should at some point be returned to society and placed in the public domain.

The Digital Economy Bill is the answer to nothing.  It's costly, illiberal, infringes on civil rights, is probably unworkable and in my view will not go far in changing attitudes or behaviour of those infringing others' copyright.

Censorship threat

Calls for censorship of overseas websites that promote infringement are both dangerous and will be ineffective.  The question was asked how a measure could simultaneously infringe civil rights yet be ineffective.  In the case of web blocking most people with an urge to bypass firewalls with the aim of acquiring illicit content will be able to do so, rendering the control ineffective in its aim.  Yet any censorship system risks over-reach, as is reportedly the case in Australia, where politically-motivated blocking of gambling sites and Wikileaks was alleged.  

Anyone setting out to find illicit content can - given the current limits to technology - find easy ways to bypass the blocks, yet the law-abiding majority risk becoming the unwitting victims of politically-motivated censorship.

Copyright: the good and the ugly

Copyright laws are a mess, and this hampers both creativity (eg the complexity in clearing a "mash-up") and education.  The fact that it's still technically illegal in the UK to copy a CD onto a personal digital music player highlights the absurdity in existing laws.

But there is no better alternative to the Digital Economy Act, and like it or not most of our modern economy is reliant on intellectual property and our ability to protect such rights.

Personally I don't think there needs to be an alternative to the Digital Economy Act in order to continue to protect intellectual property.  The law as it stood prior to the DEA allows rights holder to take action, and the perceived threat from file sharing is overplayed.   In my view rights-holders should tolerate the majority of infringement online and focus their efforts on promoting legal services.

Competing with free

The question was asked: "how can a legitimate download service compete with free?"  I would advise the music industry learn lessons from the bottled water industry.  They somehow convince millions of us to shell out £1 for 500ml of drinking water, a product that's available essentially for free from all good taps.  Good marketing is the key to success, not bad law.

Furthermore most illegal download services are hard to use and unreliable.  Criminals have been known to add viruses to downloaded content, and virus risk aside the quality of downloaded tracks is variable.  I know how to get most stuff I want for free but I take both a practical and moral decision to only use legitimate services.

Conclusion

In my view the debate needs to move away from the Digital Economy Bill and focus on radically renewing the UK's 300-year-old copyright laws, making them fit for the digital era, before we start talking about oppressive regulation of the greatest invention of all time.

@JamesFirth

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