Memorandum submitted by Cory Doctorow[2],
Electronic Frontier Foundation[3]
(EFF)[4]
1. The BBC's public service mission has
led it to create a media production culture for Britain. Today,
that culture stands to explode in into a Creative Nation where
ordinary Britons can reap new benefits from the fallow resources
in the Corporation's archive. The BBC Creative Archive project
is the purest and most exciting exercise of its remit to date,
and it should be enshrined in its new Charter.
A REMIX CULTURE
FOR ENGLAND
2. The BBC's "Building public value:
Renewing the BBC for a digital world" contains a recommendation
to enshrine a BBC "Creative Archive" in the new Charter[5],
such an Archive to ultimately consist of the whole of the BBC's
extant archive of radio and television programming, placed online
under a license that permits and encourages noncommercial redistribution
and reuse of this material.
3. Were the Creative Archive to come to
pass, it would have a profound effect on the future of British
cultural identity; on the future of new media technology; and
on the disastrous P2P wars. It would be a truly 21st Century realisation
of the Reithian values for the Corporation, a duty served to the
license paying public and to Britain.
4. The BBC's many public service remits
over the decades have been crucial to Britain's media health,
but none have been so far-reaching as the fostering of a British
media industry. The Corporation's commissioning and broadcasting
of English programming of the highest quality has created a truly
British form of television, distinct from American, Continental
and Commonwealth TV.
5. Britain's influence on the world's television
is wildly disproportionate to the actual population of Britons,
and the BBC is the reason for it.
6. This has two salutory effects at home:
first, it ensures that native and transplanted Britons have ready
access to programming that is in tune with British values and
sensibilities; secondly, Britain's influence on the rest of the
world makes all television just a little British, so that
even when a Briton watches foreign programming, the odds are that
the writer, director and producer were all influenced by Britain's
world-class television.
7. Television today is being supplanted
by interactivity. Today, children increasingly use PVRs to time-shift
their favorite programming, and spend the rest of their TV-time
playing games, including multiplayer games. They engage in file-sharing,
and as they get a little older, they begin to play with their
media, remixing and recutting it.
8. It's the dawn of a "creative nation"
a Britain which, like many other countries around the globe, makes
use of the new tools to actively participate in media, a nation
of recasters and reworkers, folk artists and appreciators of folk
art.
9. The raw material of that creative nation
need not be British. Substantial parts of it will not be: Britain
is a land of many cultures, and the fusion of the art and culture
of other lands is a progressive step in Britain's ongoing multiculturalism.
10. But what if none of the materials of
this new British folk culture is, indeed, British? What if the
creative nation relies upon material from abroad as the raw ingredients
for the popular new medium?
11. It may be that the majority of today's
Britons will continue to be the audience for others' creations
rather than creators in their own right, but will the cultural
norms and ideas embedded in those creations be British or American
or European or Asian?
12. The evidence to date suggests that remixers
rely on a mix of factors when selecting their materials: a fragment's
recognisability, aesthetic properties and fit in the overall piece
are important, but just as important is the availability of the
fragment: how easy it is to lay hands on.
13. The world's media companies are running
away from remix culture, locking up their media in increasingly
baroque copy-restriction schemes that aim to block playful, sticky-fingered
artists from appropriating an image, a beat, a phrase. The works
of the commercial entertainment world grow ever less-available
to remixers.
14. But not the BBC—while the private
sector strives to keep its material away from remixers, the BBC
proposes to do the opposite.
15. The Creative Archive project will take
the very essence of British popular culture—the material
that the United Kingdom spent billions of pounds on in order to
entertain, educate and inform itself—and give it to Britons
to extend, to make their own, to interweave with the stories they
tell and hear.
OTHER BENEFITS
FROM THE
ARCHIVE
16. A Creative Archive does more than serve
the creative nation. It is also an incalulcable boon to scholarship
and to the British institutions of scholarship.
17. For example, a publicly available Archive
could be mined to track, over time, the portrayal of women, of
visible minorities, of children of every segment of society, through
time.
18. The Archival news and other factual
programming could serve as the basis for educational units in
our schools and as input for studies into shifting cultural attitudes.
19. From tracing the changes in accent over
time to watching the shifts in UK vocabulary[6],
the value of the Creative Archive in enabling Britain to better-understand
itself cannot be overstated.
20. Likewise, the tools and techniques developed
in the course of mounting and making the Archive available will
undoubtably produce IT infrastructure of use to other British
institutions. The British Library is presently embarking upon
an ambitious project to archive and then make available millions
of British Websites[7]
the Creative Archive's content-management, content-distribution
and licensing scheme can all be used as the basis for the Library's
archive (what's more, this would ensure interoperability and a
familiar interface between the two projects). The Arts Council,
Open University and local Councils all stand to benefit likewise.
THE ARCHIVE
COMPLEMENTS THE
PRIVATE SECTOR
21. Today, there is increasing scrutiny
of BBC spending in an effort to identify areas in which the BBC
has found itself to be competing with the private sector.
22. In this area, there can be no question
that the Creative Archive is working to complement the efforts
of the private sector, from broadband companies (who will benefit
from increased custom as the trade in legal-but-outsized files
picks up) to other broadcasters (who will find their entries into
the world of remixing eased by the BBC's work in fostering a public
remix culture).
THE ARCHIVE
BENEFITS UK CREATORS
23. The Archive's remit will be to make
work available solely for noncommercial exploitation. As others[8]
have discovered, this noncommercial exploitation is, in effect,
a gigantic and clever series of advertisements for the commercial
rights to the works.
24. The audience of commercial license-takers—DVD
publishers, international distributors, filmmakers, soundtrack
publishers, advertisement producers, and so forth have their pick
of a nearly bottomless supply of cultural material to license.
When remixers make popular, creative, noncommercial new uses from
the works that the BBC has commissioned, it takes them out of
the BBC's opaque vault and makes them visible to the world's license-takers.
Moreover, the best of these creations has the effect of showcasing
the value of these wares, creating an "upgrade pitch"
for the works they are composed of.
THE ARCHIVE
BENEFITS PUBLIC
SERVICE BROADCASTERS
THE WORLD
ROUND
25. Around the world, the BBC is acknowledged
as the gold standard for public service broadcasting—this
is why America's National Public Radio (NPR) syndicates BBC international
news rather than producing its own. It's not just NPR, either:
all over the world, public service broadcasters look to NPR to
set the bar for public service performance.
26. In creating the first Archive of its
kind, the BBC proves the case for such a project to the Canadian
Broadcasting Corporation, the Australian Broadcasting Corporation,
Deutsche Welle, Radio France, and all the other broadcasters around
the world who seek to promote national identity through public
spending.
27. Should these broadcasters adopt similar
projects, its even possible to imagine a quid-pro-quo arrangement
with the BBC, in which the BBC's material is made available to,
say, Canadians in return for the CBC's material being made available
to Britons.
28. This has the potential to be the best
of all possible outcomes, for it poses the possibility of the
license fee being used to buy Britons access to the whole world's
public service programming, not just the BBCs.
THE P2P WARS
29. The P2P wars the fights over peer-to-peer
file-swapping tools worsen every day. The legal attacks on P2P
users—which, in the US, has led to the spectacle of OAPs
and underprivileged schoolchildren having their life's savings
confiscated for downloading music[9]—have
not slowed down the growth of P2P networks. Indeed, P2P remains
the fastest-adopted technology ever.[10]
"Initially we will release factual material,
beginning with extracts from natural history programmes. As demand
grows, we are committed to extending the Creative Archive across
all areas of our output.
"We are developing this unique initiative in
partnership with other major public and commercial audio-visual
collections in the UK, including leading museums and libraries.
Our ambition is to help establish a common resource which will
extend the public's access while protecting the commercial rights
of intellectual property owners."
30. Creators' and rights-holder organisations'
initial response to the growth of P2P was fear and anger, and
this was expressed in a rhetoric of theft "If you download,
you're stealing" without even a nod to the culture and communications
elements of the copyright debate that makes the infringement of
intellectual property very different from theft of non-metaphorical
property in the real world.
31. Predictably, calling customers thieves
did nothing to solve the problem. The next resort of rights-holders
was the use of "Digital Rights Management" (DRM) technologies,
which indiscriminately restrict what the lawful owners of digital
copies of music, books and movies may do with their property.
Luckily, none of these DRM technologies actually work very well,
so Britons and others with a little tech savvy are able to defeat
them this is what you do when you buy a DVD player in the High
Street and take it home and look up the code to turn off the region-restrictions
built into it.
32. This led to the inevitable reply salvo:
a series of worldwide "anticircumvention" laws[11]
that ban the dissemination of information on how to break DRM
systems, regardless of the purpose of such dissemination. Distinguished
academic engineers from Princeton University have been threatened
with legal action if they present on the weaknesses of DRM systems
at learned conferences[12],
and the FBI jailed a researcher for presenting on the same subject
at a technology conference in Las Vegas.[13]
33. Protecting DRM not only demands the
criminalisation of certain maths, it also sets up a world where
the manufacturer of a virtual "record" gets to tell
his customer whose record-player she may use to listen to it,
and gets to specify every feature that said player will and won't
have. This is because DRM systems contain proprietary secrets
and patents whose licensing is conditioned on certain features
being present and others being absent in licensed devices. These
licensing schemes are the reason that your PC's DVD drive can't
be easily used to copy your movies to your hard-drive (contrast
this with the way that your PC can readily move music from your
CD collection to your hard-drive) that feature has been banned
by the organisation that controls DVD player licensing and no
amount of customer demand will sway them into authorising such
a scheme.[14]
34. It must be repeated here than none of
this is doing anything to slow the growth of the P2P networks.
None of it is putting one penny in the pocket of an artist. Worst
of all, none of it is responsive to the public clamour for the
digital delivery of cultural material over P2P networks.
THE BBC AND
THE P2P WARS
35. This sort of technological Gordian knot
is par for the course. Ever since the printing press, the incumbent
creative industries have responded to new technologies for copying
and distributing works with fear and anger, even though ultimately
these technologies—phonograms, radios, jukeboxes, cable
television, and VCRs—have created a bigger industry with
more money on the table for more players.[15]
36. Part of the BBC's remit is to fill those
voids that the market, for whatever reason, is unable or unwilling
to fill. In doing so, the BBC can prove out the viability of an
advanced service or technology such as the BBC's Red Button interactive
television services and sow a field that the private sector can
later reap.
37. In the P2P wars, we have a true marketplace
catastrophe in the offing. Britons—indeed, media "consumers"
the world over—are no longer content to consume the programming
made available to them at the appointed hour. Rather, they demand
higher levels of interactivity, beginning with the simple act
of receiving programming on demand—whether through realtime
delivery systems or through automated time-shifting technologies
such as the personal video recorders (PVRs) built into the Sky
set-top boxes.
38. More significantly, though, the audience
for creative work is demanding the ability to play back their
programming using whatever player they choose—from pocket-sized
mobile devices to PCs to game-consoles—with new features
unimagined by yesterday's creators, from simple commercial-skipping
to advanced features such as text-chatting overtop of programming,
creating "playlists" of favorite scenes in shows (or
conversely, "reverse-playlists" of scenes that should
be omitted when children are viewing), and the ability to accumulate
collections of works in hardware-neutral formats that can be moved
from today's devices to tomorrows.
39. Most importantly, the audience is awakening
to the possibility of mining the culture that surrounds us for
the raw materials from which new works may be constructed, from
school projects that include clips and music captured from variegated
sources to "mash-up" mixes of cleverly combined and
juxtaposed music to re-dubbed and re-edited parodies of popular
works. This "remix culture" grows by leaps and bounds
as the public realises the value of a new kind of folk-art, something
that both affirms and defines shared cultural identity by allowing
all comers to actively participate in the creation of media, rather
than simply eating what we're fed.[16]
CONCLUSION
40. The Creative Archive is a watershed
moment in the history of the BBC and of the world. It has the
power to lend cultural identity to the coming generation of Britons,
to benefit UK cultural institutions, artists and commercial broadcasters,
and to push the whole world towards a new height of freedom and
co-operation.
41. The BBC has asked its Governors to grant
it a Charter provision allowing it to make the Archive, and the
Governors, in turn, have asked the DCMS for this.
42. It is EFF's hope that the DCMS will
see fit to give the Governors what they seek.
11 September 2004
2 Cory Doctorow can be reached on cory@eff.org or
+44.207.127.6468 Back
3
Electronic Frontier Foundation (EFF) is the best-established
technology-focusedcivil liberties group in the world, with more
than 13,000 dues-paying members and over 50,000 mailing-list subscribers.
EFF's key courtroom and policy victories have in past safeguarded
the rights of the public to communicate in private by means of
strong cryptography tools and to have their electronic communications
protected by the same due-process rights that apply to postal
mail and telephone calls. Today, EFF is at the front of the policy
debate on the future of digital media, providing legal counsel
to technology projects, personal video recorder vendors, and P2P
software makers. We participate in standard-setting efforts at
the Copy Protection Technical Working Group, OASIS, and the Digital
Video Broadcasters Forum, and in treaty-setting processes regarding
broadcast rights at the United Nations' World Intellectual Property
Organisation (WIPO). EFF's members come from all over the world,
and EFF supports the efforts of groups in the UK such as FIPR,
CDR and FF11 to uphold civil liberties values in technology policy,
law and standards. Back
4
This document is available at http://www.eff.org/IP/BBC_CMSC_testimony.pdf Back
5
See page 63, "The BBC Creative Archive will establish
a pool of high-quality content which can be legally drawn on by
collectors, enthusiasts, artists, musicians, students, teachers
and many others, who can search and use this material non-commercially.
And where exciting new works and products are made using this
material, we will showcase them on BBC services. Back
6
The The International Corpus of English (ICE) project at University
College London (http://www.ucl.ac.uk/english-usage/ice/) already
undertakes this research with written works to the great benefit
of scholars around the world. Back
7
See the BBC's "British Library archives websites"
at http://news.bbc.co.uk/l/hi/entertainment/arts/3231483.stm Back
8
Rick Prelinger, curator of one of the world's largest commercial
film archives has used "open" licenses from the Creative
Commons to good commercial result, something he details in a letter
to the DCMS reproduced at http://lists.essential.org/pipermail/creative-friends/2004-July/OOOO71.html Back
9
See CNN's "12-year-old settles music swap lawsuit"
at http://www.cnn.com/2003/TECH/internet/09/09/music.swap.settlement/ Back
10
See, for example, "P2P Usage Trends, July 2003-March
2004" at http://www.digitalmusicnews.com/data/040904bigchampagne Back
11
For details on the WIPO Copyright Treaty's "anticircumvention
provisions" see "Technological Measures for Protection
of Copyright And Related Rights on the Internet-Present and Future
Technologies" at http://www.wipo.org/copyright/en/meetings/200l/cr_rio/doc/cr_rio_01_5.doc Back
12
See EFF's files on "Felten v RIAA, "a legal
effort in support of Princeton professor Ed Felten and his research
team, at http://www.eff.org/IP/DMCA/Felten_v_RIAA/ Back
13
See EFF's Frequently Asked Questions file on the "US
v ElcomSoft & Sklyarov" case, which arose from this incident,
at http://www.eff.org/IP/DMCA/US_v_Elcomsoft/us_v_sklyarov_faq.html Back
14
For more on the threats of DRM to competition, see the author's
"Microsoft DRM Talk" at section 3, "DRM systems
are bad for biz" at http://craphound.com/msftdrm.txt Back
15
Professor Timothy Wu of the University of Virginia's paper on
"Copyright's Communications Policy" contains a cogent
and even gripping account of previous installments in the struggle
between copyright at technology, see http://faculty.virginia.edultimwu/occp.pdf Back
16
Siva Vaidhyanathan's "The Anarchist in the Library",
(Basic Books 2004) contains a stirring account of the rise of
participatory entertainment. Back
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