The rights and wrongs of copyright

The concept of copyright can be traced back, certainly in England, some 700 years, predating even printing by a century or so. Every development in the law since then has been a development or an adaptation of the previous principles, which is why today the approach seems impractical at best and irrelevant in many people's eyes.

We may think that is because we are now working in a highly technological industry. But ever since William Caxton's printing press in the 1450s made copyist monks redundant, the advance of technology has been blamed for the problem.

The reality is that a new invention does not make older technologies redundant. They may become specialist practices, but they never vanish. In the last hundred years or so, for example, movies were going to be the end of the theater, and then television would replace both radio and movies. They are all still going strong.

As each new technology emerges, it is initially expensive — in resources, technique or time — but becomes significantly cheaper as wider use is made of it and more refined methods are developed. As the costs of using a new technology decrease, more people expect to be able to use it.

The counterargument is that modern technology takes away the practical limitations. It means that the ability to have creative thoughts is now universal. Anyone can play. And that is where conflict arises. We have to differentiate between those who create for fun and those who invest time and money in professional creation, and thus expect — and deserve — a commercial return.

It was reasonably easy to police this in the days when content was sold as a physical entity, such as a book, an album or a DVD. It seemed reasonable behavior to go into a store, hand over money and walk out with something in a bag.

But with digital content, the form of delivery is intangible and almost free. We tend not to respect it because there is no physical representation of it. We assume it is free; therefore, sharing it, or acquiring it by different means, is not a problem. The issue becomes ethical, not technical.

Copyright in recent history

International agreement on copyright goes back to the 1886 Berne Convention. Perhaps the most important point of the Berne Convention and everything that has come since is that copyright is automatic. Once an idea has been established in tangible form — on paper or canvas, tape or digital file — the copyright holder (normally the creator) is entitled to enforce exclusive rights.

Subsequent legislation, like the Digital Millennium Copyright Act in the United States and EU Directive 2001/29, are largely concerned with protecting the interests of copyright owners such as publishers, film and music producers, and major software developers, rather than content users.

They do not tackle the new concept of content as intellectual property, which is separate from its transport medium: CDs, DVDs, streaming or television broadcasts. The vast majority of consumers are happy to pay a fair price for content, provided they can consume at the time of their choosing on the device of their choosing. Achieving that seems to be a major challenge.

In 2007, the DVB Project published its Content Protection and Copy Management protocol, and the Digital Living Network Alliance (DLNA) is tackling the same issue. This is intended to be a content management system for the consumer, enabling the device and time problems to be tackled.

It introduces the concept of the “authorized domain.” All of the media apparatus within the ownership of the consumer — devices in the main and any secondary homes, vehicles and mobile devices — have to be registered. So too does all CPCM-compliant content that comes into the authorized domain. Do that, and you can play the content anywhere.

In practice, this sounds like a minefield of interoperability issues and unnecessary obstacles. Anyone who has ever discovered the need to deregister one computer before perfectly legal software can be installed on a new machine will know that this is not user-friendly. When the ultimate requirement is to listen to music, it will seem like a huge imposition.

No obvious solution

Finding a solution, or family of solutions, calls for lateral thinking to reconcile the need to meet the desires of consumers in the digital age with the right of creators to earn a fair return for their time and talent. The solution will need to:

  • be uniform across all media and all forms of presentation;
  • not penalize legitimate use of content, storage and processing;
  • not result in an administrative burden, either for the consumer or for the service or content provider;
  • recognize the effort and investment in the creative process in an equitable way;
  • recognize that we now use content where the form in which it is provided does not dictate the form in which it is experienced; and
  • recognize the value of the content in the social context in which it is experienced.

How do the suggestions currently on the table match up to this? A popular idea 20 years ago, blank media levies have still not gone away. Some countries impose taxes on digital media. A related policy would be to tax online delivery, perhaps by measuring the megabytes. The problem is determining what is chargeable content and what is not. Technical consultants frequently produce megabytes of deliverables for clients. The content bears the consultants' copyright, so they would not be happy being charged for pure Internet usage.

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Making content free and charging for live performances is an option that might work for music, but it is hard to see how the live performance idea could be extended to “Avatar” or “Desperate Housewives.”

If the DVB CPCM protocol or its DNLA equivalent were rolled out universally, it would provide a mechanism to charge the end consumer at the point of consumption. These protocols would make it possible to track the time, place, apparatus and social context of consumption, but they would also provide the tools for censorship and restricting the freedom of communication. So it is not likely to be acceptable any time soon.

Some argue that we should shift copyright from a legal obligation to a moral framework. According to the Creative Commons Attribution-ShareAlike 3.0 Unported License, creative commons agreements provide “institutional, practical and legal support for individuals and groups wishing to experiment and communicate with culture more freely,” although that definition does not make any clear suggestions on where the revenue streams may come.

More relevant to the media industry is to extend the shareware concept of paying what you think something is worth. This has been tried, with surprising success, by bands, most famously Radiohead with its album “In Rainbows” in 2007. Theaters have also tried the concept, relying on the moral compass of its audience to offer a valid payment.

Other new business models include Universal's plan to move away from unit sales toward a subscription model, and the website Spotify, which is now extremely popular in Europe but has yet to become established in North America.

One final suggestion might be to put energy into marketing and selling the content directly, as well as giving the consumer a strong reason for paying the producer or distributor for content. This might include better quality (Apple iTunes offers better encoding as well as freedom from rights management for a modest extra fee) and perhaps collateral merchandising, giving the consumer something tangible for the money.

Time to change

The recorded sound industry realized far too late that its content could so readily be exchanged digitally by the same technology used in its creation. Sadly, it still believes that it could have prevented this.

The video industry is now faced with a parallel event, and it is time for it to do two things:

  • change the commercial model, whereby revenues are somehow proportional to talent rather than the nebulous concept of cultural contribution and popularity; and
  • change the rights model before technology bypasses it entirely, and recognize that the world is full of educated creators eager to use what has gone before to create the next wave.

Both imply radical change that will need to be implemented globally. It will be hard, because no content-based business would voluntarily cut a current revenue stream however badly it may have declined. But failure to do so will simply see a consumer revolution.

Allen Mornington-West is a senior associate at Three Media Associates.