Laurence Kaye on Digital Media Law

Web 2.0, UGC, Mash ups: who owns the data, who is responsible?

Dear reader

I gave a presentation on this subject at the European Directory Publishers Conference in Barcelona on May 29th. (I arrived just as the Barcelona team were on their triumphal tour around the City. As a Manchester United supporter, the pleasure of being in this great City was small compensation!).

The directory publishing industry has moved rapidly from a traditional, print-based business with a well-established annual cycle of data gathering, production and distribution to the front line of Web 2.0. Whilst print still continues, the hot topics are now about building online communities and search-driven directories 'on the fly' combining proprietary content, web harvested information and user generated content.

So I thought you might like to read my presentation given to the conference and to take a look at my slides. You can view them here.

Have a good week.

Laurie

'Digital Britain': Digital Content and the role of copyright

Dear Reader

Lord Carter's 'digital britain - interim report', published on January 29th, reads well. It may be light on detail in some areas, but it contains a very good 'state of the digital nation' analysis and highlights the key issues affecting the roll-out of next generation digital networks and the development of digital content services. To get a snapshot of the report, read 'Digital Britain: 5 objectives' on page 5 of the PDF version and the 22 Action Points on pages 5-11.

But In this post, I want to concentrate on some of the apparent contradictions about copyright that are picked up in the interim report and the reasons for that. But before I do that, I want to highlight a few key economic and commercial points made in the report.

Economic importance of UK's Creative Industries

In the current economic climate, with the UK's financial services industry in the doldrums, the report asserts the importance of our creative industries, especially for exports. It cites OECD estimates that "..the UK cultural sector is relatively more important (at just under 6% of GDP) than its equivalent sectors in the US, Canada, France and Australia." It also quotes Unesco's estimates that "...the UK is the world's biggest exporter of "cultural goods", surpassing even the US."

Four commercial challenges

The report says that there are four commercial challenges which need to be addressed to preserve a healthy content market in the digital age:

1: Downward pressure on digital revenues caused by lowering of digital distribution and copying costs.

2: Downward spiral of revenues from advertiser-funded businessess resulting from huge increase in advertising inventory ( we're talking search here!).

3: The need for wholesale access to important content to satisfy bundled content and services offered across a range of distribution platforms and digital services.

4: Unlicensed and illegal copying and distribution. I'd like to add a 5th: How to create revenue - whether in the form of subscription, 'pay as you go' or otherwise, from digital conent which is currently be made available without charge for users to use lawfully without having to pay for it.

The contradiction about copyright

Put bluntly, the implied question in the interim report is whether copyright is an enabler or a barrier in the new digital media world.

An enabler

It's true that it states unequivocally that: "Copyright is vital for our content and communications industries. It is the framework through which people can protect their creations and seek reward."

And on the 'enabler' side of the equation, the report promotes a cross-industry, mult-track approach to dealing with copyright infringement. It floats the idea of a 'Rights Agency', a working forum of stakeholders - although it sounds like another quasi-Governmental body. -  It would use education, the promotion of technical solutions to deal with infringement, information provision and promoting innovative services.

The interim report also hints at 'regulatory assets' and levies as alternative revenue streams for digital content services.

Furthermore, the interim report also refers to the outcome of the Government's consultation on dealing with the issue of unlawful 'P2P file sharing. This is not a 'Digital Britain' initiative. The result of the Consultation was inconclusive. The Government's preferred co-regulatory approach did not win universal support. Instead, we are left with what is ultimately a Court-based approach: the legislation  will require ISPs to collect anonymised information on serious repeat infringers to be made available to rights-holders together with personal details on receipt of a court order. You can see the result of the Consultation on BERR's website here

A barrier?

In the context of the internet, the interim report says "..there is a tension between providing reasonable rewards for creativity, which have historically required a measure of protection for the creator's rights, and the freedom to allow that content to be used to permit further innovation and creativity."

So here's the thing: is copyright stifling further innovation and creativity and the growth of new innovative services? Is there something missing, some vital link in the  copyright chain? 

It is dangerous to generalise across different sectors. The games industy is calling for tax incentives; the newspaper industry is faced with the flight of advertising to search; the music industry is still grappling with the problems of P2P and online services; the book publishing industry is still only experimenting with digital delivery and so on.

21st century rights management

But there definitely is something missing: it's the use of 21st century rights management tools. The interim report picks up on this when it mentions, as one of the possible functions of the Rights Agency, "...to support and legitimise technical solutions". It then mentions the work of ACAP.

We are not talking here about is DRM in the sense of technical measures such as Apple's 'Fairplay' technology which restricts the use of content on different devices.

What we are discussing is digital rights management in the sense of attaching permissions to all types of content in a way which enables websites, consumer electronic devices, digital televisions, search engines, e-book readers and all other network connected machines to link permissions to content. 'ACAP, 'Creative Commons', 'ONIX' (for books) are all examples of open standards for automating the  expression of permissions.

It is these tools which will unlock the digital networks' potential to make new content available, and to get permission to use existing works quickly, easily and effectively in accordance with the permissions set by rights owners within the boundaries of copyright law. The 'rights holder' is, of course, free to set these permissions and may permit non-commercial use for free or for financial reward. It is a matter of choice.

In many if not most instances, these permissions will not be enforced by technical protection measures. That is a matter of choice for the content provider dictated, to a large extent, by the type of content and what consumers want and are willing to accept. For example, Apple recently made available part of its catalogue free of these technical measures. In the newspaper industry, permissions attaching to their web-based content which are designed to be readable by search engine are unlikely to be enforced by these these measures.

Although these standards are 'techie', their adoption and use have direct relevance to user's respect for copyright as well as making it easier to clear rights, make existing and new works available to citizens and  consumers and to remunerate creators and everyone else in the copyright chain. They are the engine to getting copyright to work in an advanced networked economy. Nor does their adoption need any change to the copyright framework - they sit fairly and squarely within it.

Promoting widespread adoption of these standards - now that's a possible job for the Rights Agency!

Laurie Kaye

Responsible use of content - it's all the rage!

Back to the thorny subject of the liability of social networks, ISPs and other intermediaries for hosting or carrying illegal content. When the E-Commerce Directive introduced exemptions for hosting content, it specifically said that there was no obligation on hosts to monitor their sites for illegal content.

But industry pracctice is beginning to move in the opposite direction through the the use of filtering technology. Take, for example, YouTube's recently introduced video identification software for vetting its content for copyright infringement.

YouTube is keen to be seen to be acting responsibly: ("Like our other content policies and tools, YouTube Video Identification goes well above and beyond our legal responsibilities.") No doubt prompted in part by Viacon's proceedings, YouTube wants to send out a strong message that it doesn't condone or facilitate copyright infringement .

The software checks newly uploaded videos against a database of copyright protected content. As such, it is only as good as the database and the thoroughness of the checks. It is still in beta version at present, so will be bound to encounter teething troubles. It will be interesting to see if this builds bridges between YouTube and content providers, and how the courts will interpret its efforts.

At the same time, a group of big name media and internet companies have published a set of user generated content principles, as a set of good practice guidelines to serve as a benchmark for how to behave responsibly in the world of Web 2.0 (mentioned en passant in a previous post). But Google is notable by its absence as a signatory to these guidelines. Is it because the sands of legal liability for user generated content are shifting and it doesn't want to commit itself yet to a particular position?

Another type of industry standard has also been introduced recently: the Automated Content Access Protocol, or ACAP. This will enable internet content publishers to communicate permissions for access to and use of content on their sites to online intermediaries (such as search engine crawlers). Again, this represents another industry-led initiative setting standards to fill in the gaps where out-of-date legislation has proved inadequate.

Have a good week!

Laurie Kaye

DRM: from policeman to accountant

Spare a thought for poor old 'DRM'. It's had so much bad press as well as being the subject of an on the inquiry conducted by the All Party Parliamentary Internet Interest Group (now 'apComms'). Their Report  was published last year.Certainly, the focus of the law in this area is on technical protection measures. (My next post includes an explanation of the law in this area).

So think 'DRM' - digital rights management - and you'll probably think of proprietary technology such as Apple's 'Fairplay' which ties content to a particular platform or device. But things are changing as business models evolve. Some music companies are now beginning to experiment with content delivered free of technical protection measures, whilst other content owners will want to use them in their battle against piracy.

But seeing DRM merely as a set of restrictive technologies is wrong. A broader definition of 'DRM; is “An umbrella term for a range of technologies for managing the buying and selling of intellectual property rights in digital form” (EPS, now part of the Outsell Group). In the 'Web 2.0' sites such as Facebook are becoming platforms for the exchange and delivery of content.

In this environment, machines have to speak to machines - the 'semantic web'. Here, DRM is an enabler. It is about the application of a machine-readable language and grammar to digital content in order to describe the rights that are associated with the intellectual property. It may be 'copy without restrictions'; 'copy three time'; 'store and delete copies from cache after a given period etc.' And it's perfectly possible that these permissions will not be enforced through technical protection measures.

A good example of DRM as enabler is the work being done by 'ACAP'. ACAP (Automated Content Access Protocol) is being developed as an industry standard by the publishing industry, working with search engines and other technical and commercial partners. ACAP will enable the providers of all types of content published on the World Wide Web to communicate permissions information (relating to access and use of that content) in a form that can be automatically recognized and interpreted, so that business partners can systematically comply with the publishers' policies

So we may be seeing DRM leaving the police station - at least from some of the time - and moving into the role of accountant, helping to make sure that the right guy gets paid, who could be anyone from the solo digital photographer or designer through to 'big media'.

Laurie Kaye