I really hope you're not reading this on your laptop or Blackberry in some sun-soaked destination. But if you are, at least order another glass of pina colada, sit back and gaze into the fast approaching future. I firmly predict that all of the 'big questions' about digital media law are going to get answers in the next two years. OK, maybe that's not exactly a prediction of Nostrodamus proportions, but some pretty key developments are on the way.
So I'll highlight the key developments to watch out for but, first, let me provide some context.
In my post on May 2nd, I described the four focal points of change as we transition from analogue to digital:
- “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?
- “Who carries the can?” What legal responsibilities should ISPs, social network sites and users have for illegal and harmful content?
- 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.
'Co-regulation' is the way to go. For example, check out The Department for Business Enterprise & Regulatory Reform's ('BERR') 'Consultation On Legislative Options to Address Illicit P2P File Sharing'. My money is on Codes of Conduct overseeen by a regulator (OFCOM?) which approves codes of practice negotiated between bodies representing rightsholders and ISPs. In other words, voluntary arrangements as long as they have legal teeth.
ISP's and Hosts will accept a role in the campaign against illegal P2P file sharing as the quid pro quo for maintaining their immunity from damages claims. Well, not really a prediction as the BPI recently announced the signing of an MOU with 6 of the UK's largest ISP's signed (although I did predict this earlier this year). The background here is that UK Government made clear in the Gower's Review (Recommendation 39) that it would legislate on P2P filesharing of copyright if "..industry agreement protocols for sharing data between ISPs and rights holders to remove and disbar users engaged in 'piracy' have not proved "operationally successful by the end of 2007. The BERR Consultation comes directly from this.
Now there are lots of issues to sort out via the Codes of Practice, such as the use of technology to identify and filter content and whether (and, if so, what) user data will be disclosed by ISPs to rights holders. But we're passed the point where the middleman's mantra of 'hear no evil, so no evil' continues to be listened to by the regulator.
Licensing solutions and copyright exceptions will battle it out - and licensing will win. The European Commission's recently published 'Green Paper on Copyright in the Knowledge Economy' focuses on whether there's a need for further copyright exceptions to encourage "the dissemination of knowledge for research, science and education.' So it looks at current exceptions for libraries, archives, teaching and research, news reporting and other issues. At the same time, here in the UK we have the Gower's Consultation on changes to the UK's existing regime for copyright exceptions. So make no mistake, if rightsholders want to resist the rising tide of copyright exceptions, they need to offer licensing solutions.
And that's what a lot of them are doing. They may take the form of additional digital licenses which are available through their collecting societies like the CLA and the NLA; 'machine (e.g.search engine) readable' permissions expressed through the 'ACAP' protocol or other specifications such as 'ONIX' and indeed through old fashioned 1:1 paper licenses. But the lesson is clear: the content industries need to continue to develop business and licensing models for content delivery for obvious commercial reasons and to counter the arguments of those who say - wrongly I think - that copyright is a barrier in the digital age.
Time to get back to your pina colada, I think.
I'm getting ready for my break too so I look forward to being in touch with you again after the 'dog days' of summer.