So we’ve arrived at the concluding chapter of the digital media story. Previously, we've taken a quick overview of "digital media" and the febrile state of the market and gone on to look at three out of my four focal areas of change - 'What and How to Regulate?', 'Who Carries the Can?' and ‘The Boundary between the Public and Private Domain.’
This brings us to the 4th are of focal change: the transition from digital to analogue, perhaps the most significant area of all.
Rushing slowly to change
“We always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten”. Bill Gates
Google’s revenues were $0 in 1997; Google's profits were $1.21bn (£608m) for the three months to the end of December 2006! That's change!
Change is indeed both slower and quicker than we expect. Over the next 10 years, perhaps the most important developments will be those hidden in the Web’s plumbing. They will build more intelligence into the Web so that – to borrow a phrase I heard Simon Juden, The PA’s Chief Executive use the other day – “Websites become Web services.”
Technical standards: not glamorous, but vital to the digital future
What I’m talking about here is the unglamorous world of technical standards which make it possible for machines such as search engines to talk ‘intelligently’ to other machines such as websites and other devices, so that, for you and me as users, we can find the content or service we want, see and pay for the permissions we need and then download and enjoy that content.
This is the arena of what I call ‘de facto’ law. Although the law (e.g. copyright law) may provide the overall legal framework for what can and can't be done with copyright content, standards control what happens. In that sense, they are a kind of 'de facto' law.
In the digital world, technical standards play a major role in determining how digital goods and services are exchanged. The ACAP ('Automated Content Access Protocol') project is developing a standard for 'machine to machine' permissions readable by search engines giving website owners much more control over what search engines can and can't do.
Technical standards and the publishing industry
In the publishing industry, ONIX for Licensing Terms is a “family” of XML document schemas which are being used to express licences in a machine-readable form. For example, ONIX for Publications Licenses (ONIX-PL) is a means of expressing the licenses agreed between publishers, hosting services, libraries and consortia in machine readable form.
Some of these tools simply mean that, on the click of a mouse, a user in a library can see what he or she is allowed to do with the content. It’s just a clever way of attaching and displaying permissions on screen. It’s then up to the user to respect the permission (or not!). In that way, it like the Creative Commons licence that is often used to encourage the sharing of content for non-commercial purposes.
In other cases, it is ‘machine actionable’. That’s where one machine – such as a search engine – interacts with another machine – a web browser.
Taken together, these software tools, built on common standards, are the building blocks of a 21st century rights management system. In discussing these standards and software tools, I
have deliberately avoided using the term “digital rights management” or “DRM” because they are generally used to describe technical protection measures ("TPMs") such as Apple’s ‘Fairplay’ system which technically controls the number of copies that can be made as well as the devices on which the content can be played.
Of course, TPMs have a role, especially with regard to enduring content such as films and music, although many services are now offered TPM free. But I want to use DRM – or other terms – to describe the bigger picture of tools that can be used to locate works and express permissions, whether or not TPMs are used.
So is that it? Have we covered the full gamut of digital media law? You bet we haven’t!
Working out which laws apply and which Court’s have jurisdiction remains a challenge when we have territorially-based laws and jurisdictions applied to cross-border services. But there are international treaties and legal frameworks to work out the answers in practice. It just takes time to evolve.
A good example of the old coexisting with the new in the world of digital media law is how Linden Lab, the owners of Second Life, use good old contract law in the form of their Terms and Service to deny service to participants who don't play by the rules.
And there’s plenty more. But they are for another day! Along with a whole load of other stuff.
Some concluding thoughts for the future
More changes in copyright law are in the wind, just as television, film and other audio-visual download services start to take off. We've got to get the rights management system 'fit for digital purpose', so that everyone in the content chain gets their fair reward whilst citizens and consumers get the content they want - when, where and how.
Lastly, you can’t work as lawyer in this fascinating area without having your ‘10’ key principles of digital media law. So here are mine:
- There’s always a solution
- Online rules = offline rules (mostly)
- Living with uncertainty, so manage your risk
- Value your IP
- Copyright: permissions first, restrictions last
- Think privacy
- Collaboration’s the name of the digital media game
- Make it simple(r)
- Do the deal but allow for the exit
- What are the things you don’t know you don’t know? (Thanks Donald)
Have a good week.
Thanks for reading and watch out for new themes in upcoming posts.