What's Hot in Digital Media Law

In case you missed it, April 30th was the Web's 15th birthday. April 30th 1993 was the day that CERN announced that the Web was free for use by anyone. So it turned out to be an auspicious day for the talk I gave that day 'on What's Hot in Digital Media Law'. I had a great turnout - around 100 people - and thought that you might enjoy reading it in bite sized chunks on my Blog. So I'll start the 1st installment with my Introduction, a bit of scene setting.

Introduction

Things used to be so simple. The law was securely locked up in expensive tomes sitting on the shelves of its custodians, we the lawyers, encased in archaic language.

And then along came Tim Berners-Lee, the inventor of the World Wide Web, in the early 1990’s and it all changed. His specifications for HTTP, HTML and URIs have democratised access to content and empowered digital citizens and consumers.  Ever since, the law has been chasing the long tail of digital content.

From the moment we set foot on the Information Superhighway and entered the world of multimedia – remember them? –the law, technology and business models have never been in sync. They’re each in the grip of different forces and processes, moving at their own speed of change, from warp to weary!

But the one constant in all of this is powerful, even systemic, change.

We see new actors – search engines, social network sites, online content providers and, of course, the citizen consumer as content creator.

We have new technological tools, technical standards, and software applications which enable digital content to be created, located, moved, and shared – legally or illegally - across broadband networks.

At the same time, analogue media, especially the printed word, continue to co-exist with digital media and are likely to do so for the foreseeable future.

So is the law fighting a losing battle in the midst of this upheaval? Is it losing its own case in Court over its right and ability to regulate the world of online media?

As we stride (or, perhaps, stumble!) into this new environment, we can, I think, see four focal points of change.

1.    “What and how do you regulate?” In the traditional world of broadcast television and spectrum scarcity, this was fairly clear. But what’s the right approach to regulating content when we move to new online services that deliver a mix of programme-based and on-demand services, mixing film and TV material along with blogs and literary content? And what are the right kinds of regulatory tools to be used, ranging from prescriptive laws to voluntary codes of conduct?

2.    “Who carries the can?” What legal responsibilities should ISPs, social network sites and users have for illegal and harmful content?

3.    “Where should the boundary between the public and private domains be drawn?” The private is the domain of intellectual property rights, especially copyright, data privacy and notions of permissions and consents. The public is the domain of access, use and re-use of all types of content and information. The fundamental challenge faced by regulators, and by all of us as digital citizens, is to decide where the digitally-blurred boundaries should be set. 

4.    “Making the transition from analogue to digital”. Here, the fundamental issue is how we move from a world of paper-based contracts, dusty files and rights holders we can’t locate to one in which, at the click of a mouse, users can locate works, instantly see permitted terms of use and obtain permissions.

In the next installment, I'll give a very brief overview of “digital media” and the digital media market.

Enjoy the long weekend!

Laurie Kaye