Copyright in the digital age: the UK’s “Digital Copyright Exchange feasibility study” analyzed.

In earlier blogs, I have analyzed why the current copyright system is not fit for the digital age. I have also provided some elements of a solution; one key element I see for any survival of the copyright system is to impose a system of registration, together with breaking down the power to withhold legal copyright licensing.

In the UK, a government appointed independent study has reviewed the same problem. It is called the “Digital Copyright Exchange feasibility study”, and you can find the report here.

Below is my first analysis. I will look at three questions: 1) Does the report stay within the boundaries of current copyright, or can it think outside the box? 2) Does it address the real issues? 3) Does it provide useful answers?

Staying within (part of) the box

The report, unfortunately, refuses to question any of the basic premises of the copyright system. It never asks the question if the copyright system is fit for purpose. Rather, the report clearly states it stays within the current boundaries of copyright.

That is a great pity. We know that the current copyright system fails badly in the digital universe. To assume that this is due to the technicality of the digital system only, as the report seems to do, shows that the report sits completely “within the box” of the current system. Nowhere does it ask serious questions, or addresses the totally out-of-time premises of the 150-year old copyright system.

The authors of the report have worked closely together with the current content-distributing industry – and it shows. All kinds of statements as to why people do things are accepted without the slightest criticism.

As a result, the report stays firmly within the box of the old content-distributors; the record companies, the film distributors, etc. Their business models are never questioned, nor the basic question whether copyright law, and the resources of the state, including criminal law, should be used to protect a particular business model, based on a particular understanding of technology.

At the same time, the report turns a massive blind eye to the most relevant developments in areas that are covered by copyright, and where huge new activities online have sprung up, but outside the classical content distributors’ channels.

The report completely ignores the explosion of new content that has become available on the Internet outside classical channels. Music is no longer distributed by record companies, but by artists. Books are self-published. Etc. But nothing in the report seems to think this emerging group of authors need to be involved in any way in either analysis or solutions proposed.

In doing so, the report makes the classic mistake of thinking that the old content distribution business actually represents the creative industry (or is still a significant part thereof). To give but an example: the music industry is much, much more than the record companies. It involves such people like the actual musicians. But the report completely ignores this dichotomy, which, in the marketplace, is becoming ever more relevant.

Also, there’s pretty much nothing on relevant new developments on the crossroads of technology, content, and intellectual property.

Creative Commons is mentioned once, in a small example.

There is no mention at all of User Generated Content – a key trend that is sweeping away traditional understandings of copyright. To think that parents who film their children’s birthday party and want to mash it up online with other content, are interested in purchasing licenses to “happy birthday to you” song or other content, that right holders can then randomly withhold, is simply foolish in the extreme.

To think that “voluntary industry practices” will affect the explosion of users who will want to use, re-use, imitate, copy and apply all other kinds of functionality to content, is, quite simply, 20th century thinking.

But it’s worse.

Not a word about other key industries that also depend on copyright.

Not a word about software. Not a word about functionality in the Internet. Nothing on Apps. Nothing on Open Source. Nothing on Big Data. Nothing on the Cloud. Nothing on hacking, open standards, the public domain. Where’s the analysis of Pinterest? Where’s the analysis on machine-generated content?

The report is, from this perspective, breathtakingly shortsighted.

It deals with a subset of a subset of issues, and extrapolates those into “digital copyright exchange”.

So, from the beginning, the issue of scope of this report presents a very serious problem to its usefulness or credibility.

What are the real issues of copyright in the digital age?

The report never seriously analyses any of the relevant questions as to why copyright is struggling so much in the digital world. There are some fleeting references as to why people might be “pirating” or why they might want to use peer-to-peer services, but there is no attempt at serious analysis.

Reasons or explanations advanced by the old content distribution industry such as the record companies or film distributors are accepted without even the appearance of critical thought.

The simple observation that business models based on creating artificial scarcity in a world where technical reproduction has become ubiquitous are untenable appears nowhere.

The report blandly accepts that copyright holders must be able to refuse to license their content. Then it goes on to validate the statement from the content industry that the lack of content cannot be a valid reason for piracy.

The consequences for the credibility of the report are, of course, disastrous.

If you don’t make a proper analysis of a problem and its causes, how could you possibly come up with a relevant or credible solution?

Are the answers useful?

And yet. There is one observation in the report that is valuable. It is the observation about the enormous importance of data.

This is a good and valid observation. The problem it points to is simple: who owns what, and how can anyone know who owns what?

As I have explained earlier, a mandatory digital registration system is the only workable solution to this problem.

The report recognizes the question, and does suggest, maybe, some kind of voluntary registration, but does not want to go very far in its solution. It calls effectively upon the old industry to voluntary put its systems on a comparable footing and start swapping data or make them inter-usable between systems.

Unfortunately, here, the report suffers from the same extreme short-sightedness.

Setting up a common database of copyright-held content is actually not difficult or expensive anymore. Technically, it has been possible for more than 15 years – in fact, pretty much since the invention of the Internet itself.

The problem is, of course, the old content industry. They wouldn’t be seen dead doing this – and they have consistently refused to use the technology available, in order to create simple and transparent data about who owns what.

Don’t forget that all new developments in both technology and business models in content (music, films, books,…) over the last twenty years have come from outside the traditional industry. This is true both for the negative impact, where the old business models are being destroyed, as for the positive impact, where new business models arise or new technology develops quickly.

For the report now to call upon that same old, failed, industry to do what they have consistently refused to do over the last two decades, is, it must be said, a very sad result indeed.

Conclusion

The report limits itself to an ever decreasing part of the market. It does not perform any meaningfull analysis of the causes of the problem it wants to resolve. Its solutions are re-hashed statements of intent that  the old content distribution industry has consistently failed to live up to, by that same old content distribution industry.

It is a missed opportunity, and a waste of effort and money.

The follow-up will fail, and its recommendations will not be implemented.



One thought on “Copyright in the digital age: the UK’s “Digital Copyright Exchange feasibility study” analyzed.

  1. Maxine Horn says:

    Well said Joren.

    Established old guard are perhaps easier to deal with than a crowd of many 1000’s of individual Creators. And perhaps the old guard would not wish Creators to have greater independence as they would fear the impact on their own business models.
    But if they revised their business models and made them more equitable to both the Creator and consumer surely business would increase?
    Most Creators want to get on with creating not administrating and selling – but they want fairer terms.

    And of course Creators also need to take more responsibility for authenticating and identifiying their works – so a formal, non-complex, low cost registration system would of course simplify matters greatly for all concerned.
    People purchase URL’s quickly and easily, renew them annually and change the who is ownership details if the url has changed hands.
    A DCE could work as easily as that and become an automatic process of renewal for Creators wishing to retain ownership of works. It can be searched to find the owner easily to request permission to license works either direct from the Creator or via their appointed agent / collection agency.

    But that is a shift of power that perhaps the old guard do not want

    Government won’t fund solutions and do not wish to be accused of upsurping big business intermediaires and distributors. They need to rely on those businesses to fund the solutions – so unless those businesses are prepared to address their business models, resulting solutions will either protect existing territories and old systems or change a little but not much. So the issues faced by consumers, Creators or businesses seeking to license works will not be resolved.

    Meta data regards ownership is key, the technologies to enable that and to enable data to be easily updated is available. So nothing stands in the way.

    Creative Barcode have gone some way down the line to creating such a system but needs funding to progress further and then the critical mass take up of the Creators.

    We are due to launch an IP Innovation Fund for that purpose -

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