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Month March 2011

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How do we know copyright is working?

Mar 29, 11 5:03 PM

I have spent a working lifetime sitting on one side of the copyright debate – broadly the “copyright is good” side. I have also, latterly, spent a lot of time listening to people telling me why Im wrong, why I am a dinosaur who cant let go of the past.

Obviously I have spent my career being driven by vested interests – I have worked for companies which are strongly dependent on copyright. So when I have been defending copyright I have also been defending their interests and my own job.

Equally obviously, many if not most of the people on the other side of the debate have vested interests of their own. Search engines and aggregators, academics, thinkers and would-be futurists – even newspaper editors, sometimes – have their own reasons for predicting or relishing the imminent demise of the copyright-based business model.

But what if we step back from both sides of the various vested interests and try to think about what we want, as a society, from copyright. Ignoring the commercial interests, what as an ordinary person can be regarded as a good thing? Perhaps then well have a new perspective from which to consider the polarised opinions being so freely touted.

I had a go at this for a talk I did towards the end of last year. I came up with a list of about fifteen signs that copyright is working well which I managed to distill down to three pithy ones: diversity, investment and reward.

Diversity. A diverse and growing ecosystem of content and creators, leading to a large and increasing choice for consumers, greater access to knowledge and effective and increasing competition for audiences.

Investment. A growing investment of time and money in creating content, products and innovative new ideas which effectively address the needs of the market. Risk-taking by investors and creators, new players entering the market, and a diversification of business models.

Thirdly, and perhaps most all encompassingly, the best and most popular content to be recognised and rewarded. The possibility for big winners to emerge, adaptable, clever companies and creators winning out over slower, less nimble players and not just by appropriating their raw materials from elsewhere.

The reason I think these three things particularly matter is because of the most important outcome of all: access to knowledge and creativity.

Its a good thing if people in general have wide access to the maximum amount of other peoples output and intellect – as well being educational it is the engine of culture and of inspiration and that is the central purpose for which copyright was devised. We are entertained, informed and enriched by other peoples creativity and ensuring that continues has traditionally been the central public good which copyright law seeks to promote.

So: I think a key sign of copyright working well is that lots of people are producing lots of output, and the most popular are the most successful (in whatever terms they judge success – which may or may not be financial).

Am I right about desirable outcomes? If I am, then it provides an interesting backdrop to the debate about if and how copyright needs to change in the internet era. If not, what should they be?

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Obstacles, obstacles

Mar 24, 11 12:29 PM

The UK government is reviewing Intellectual Property at the moment. Ian Hargreaves, an academic and former newspaper editor, has been given the task of following in the footsteps of numerous recent reviews and consultations to yet again try to come up with a prescription of how to fix copyright.

This task, as Prof Hargreaves probably realises by now, is a bit of a nightmare. It pre-supposes that something is broken, that its the governments role to fix it, and that the past ways of doing things are to blame. David Cameron didnt make it any easier when, in his out-of-the-blue announcement of the review, he said that he had been prompted to instigate it by Googles founders, who have told him that they couldnt have started their business in the UK and that our IP laws (specifically the absence in them of the american principle of “Fair Use”) were to blame.

I suppose it must be tempting for a Prime Minister to imagine that a small tweak in an obscure area of law might prompt a flood of multi-billion pound businesses to spring up around the “Silicon Roundabout” but its also absurd and unimaginable (even if you ignore the hardly irrelevant observation that Google do about £2bn of business in the UK, seemingly without any fatal impediments from IP law).

So Prof Hargreaves has to go back with something for Cameron. After going to all the trouble of doing a review, at breakneck speed, a report saying “do nothing” probably isnt an acceptable outcome.

But it may be one of the least worst options. What the Prime Minister is focussed on, it seems, is helping SMEs and promoting entrepeneurialism. IP, he is told, is a barrier to people launching businesses and doing clever, Googleish, things.

What doesnt seem to have been considered, at least before the review got going, is that IP law is by far a greater begetter of innovation and entrepeneurialism than it is an inhibitor of it.

Of course, IP law allows a rightsowner to decline to licence their content. If a startup depends for its success on obtaining rights to other peoples content then it definitely has a problem should the licence turn out to be hard to get. But if that happens its a mighty leap to blame IP law, and a complete misunderstanding of what copyright means.

Copyright is the right to say no, to keep your content private if you want. In reality its effect is to encourage people to distribute their stuff as widely as possible – a goal which is achieves with spectacular success. So if copyright owners decline to licence their content to someone theres probably a reasonable explanation (although unreasonable ones are just as valid).

In my experience licensing content for a big media organisation, the most common reason why we declined licences was because the terms being offered are unrealistic, often wildly so. Is has become almost axiomatic on the internet that content is free, and so content-dependent businesses can only succeed if their costs are low or zero. So many startups choose to source theirs from elsewhere because its cheaper than creating their own and are often genuinely amazed when their (frequently risible) offer is declined.

In other words IP licensing can very well be a barrier to SMEs, in the same way as lack of wealth or availability can be a barrier to me living in the nicest mansion I can find. But that doesnt mean the law is either to blame nor that the law needs to change to advantage one party (the one not making the investment in content) over the other (the one which does).

That this review was sparked by Google is almost comical, since they have made one of the biggest businesses in the world out of treating other peoples content as a free resource. It would seem to me that they should be careful what they wish for because the status quo could barely be more skewed in their favour.

Hopefully the review will reach some sensible conclusions, however unpromising its origins. I have some suggestions about things which could helpfully improve things for all the stakeholders, not just a few of them. Ill post them later. In the meantime have a look at the responses the review has garnered so far at the IPO website.

It has certainly got people thinking.

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Mish-mashing-up

Mar 22, 11 3:22 PM

One of the things copyright is often accused of unfairly preventing, which in turn inhibits creativity and innovation, is so-called “transformative use”. That is, taking someones work as the starting point for your own, and sufficiently changing it so that a new work is created. Currently, in the UK, this mostly still requires a licence because the new work still includes the old one so no one person has the whole copyright. In the US, as a consequence of their “fair use” laws (and a load of litlgation over the years), some of this is allowed. And there are now calls to adopt a similar approach in the UK.

I am always slightly surprised that this is held up as a desirable thing. I sort of assume, rather rudely, that those who advocate it dont have much imagination of their own. Obviously people have been transforming each others work for donkeys years (think about sampling) and equally obviously its not impossible to get permission for this at least some of the time. But I always thought copyright was intended to promote and protect originality. Creatvity, surely. implies creating something. Not just giving something a make-over. New things, rather than iterations of old things. A really nice photocopy, or a cleaned-up photo, surely shouldnt be considered new works in their own right? Thats why copyright doesnt apply unless a work is in some way creative and original.

In fact I have always thought that one of the rather brilliant balancing acts that copyright performs is to prevent appropriation of someones work while allowing – encouraging, even – inspiration. Most original thoughts have their roots in something else. One thing leads to another, and what eventually emerges might bear no similarity at all to the thing which inspired it. You hear a song, and it makes you think, and a bit later a song of your own emerges*

This balancing act is brilliant not just because it creates a sensible compromise but also because it encourages widespread distribution of work. Most creative people are happy and flattered that their work might inspire someone as long as it isnt appropriated… feeling confident of that creates the confidence to publish widely. The more there is out there, the more there is to be inspired by, and the more gets created. If I were a management consultant I would call it a virtuous circle (and send a bill for several thousand pounds).

My questions are these:

Even though its undoubtedly true that transformative works can be brilliant and hugely enjoyable, why does that mean they should be protected by a legal right?

Why shouldnt I, as the creator of something, be able to benefit from the use someone else makes of it?

Equally, why shouldnt I be able to prevent them using it if I dont like what theyre doing? Even if other people think its great, if my work is recognisable in theirs. surely I should have a say?

And, from a public policy point of view, shouldnt we prefer a law that encourages true originality over endless iterations of past work? Which pushes beyond just re-cycling the past, with the risk of creating a colourless hybrid of indeterminate origin in the place of true creativity?

Surely we dont want a world of mash-ups to create a future which is just a mish-mash…

*for people who remember Lloyd Cole and the Commotions, and “Are you ready to be heartbroken”, check out “Lloyd, Im ready to be heartbroken” by Camera Obscura. Twenty years on, not copying or mashing up anything, but the inspiration is clear…

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Welcome to the Copyright Blog

Mar 20, 11 12:27 PM

I planned this blog with an agenda to put the case for copyright, to bring a positive message about it to the sea of negativity and to explore what the future might hold with an open mind. 

There are many voices loudly and frequently raised which rail against copyright. It inhibits entrepeneurialism. It locks knowledge away. It protects the interests of big corporations and restricts the freedom of ordinary people. It inhibits innovation on the internet. And countless variations on the theme.

I disagree with all of these and most others besides. I think – and my long experience confirms – that copyright has been, and still is, a hugely positive driver of many of the things is stands accused of inhibiting. I think its principles are fundamentally right and that while it needs to evolve as the world it exists in evolves that doesnt mean it needs to be destroyed. I think the debate, and the arguments of those who participate in it, are often simplistic, disingenuous and mask commercial interests.

Equally, its obvious that the issues which give rise to all these arguments are real, even if I disagree with the conclusions. The internet changes everything, so it seems, to its tempting to conclude that everything needs to change.

I want this blog to help raise the debate and avoid over-simplification. I want to discuss ideas and perspectives without getting bogged down in quasi-legal academic arguments and pedantic hair-splitting. I want to consider the issues from the same real-world perspective that I have had throughout my career managing, acquiring and exploiting copyrights. I take a practical approach to practical problems and think that is the right way to make copyright fit for the future. 

Im not a lawyer and I bring a practitioners perspective to things as I see and understand them. I start this as a true believer and a passionate advocate for all that good that copyright does. Having an open mind means Im willing to be persauded otherwise. I doubt I will be, but it will be interesting to see.

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