Select Committee on Culture, Media and Sport Written Evidence

Memorandum submitted by Edward Barrow


  This response is submitted in a personal capacity by Edward Barrow, a copyright consultant specialising in new media.

  It represents purely his personal and professional opinions, not those of any of his clients.


  The new media, in particular connected, on-line media, are already having a great impact on the "creative industries", and indeed on society as a whole; an impact which is likely to turn out to be as significant as the invention of the movable-type printing press itself.

  The creative industries must adapt to a new environment having two major characteristics, and two associated issues:

2.1  Non-industrial reproduction

  The reproduction of creative content is no longer exclusively an industrial process. Anyone with the equipment necessary to access creative content—a digital computer of some form—has the ability, unless the ability is disabled by some technology, to reproduce content. Compare this to the printing press, which requires substantial investment in plant and typesetting.

  2.1.1  Protecting Investment

  Copyright developed in the centuries following Herr Gutenberg's invention in order to protect the investments made by printers and publishers. But its social and economic significance is that it underpinned, and continues to underpin, a business model in which many people each pay a little towards the cost of creative content.

  Preserving this business model is, arguably, desirable: the alternative is that the first consumer will be forced to bear the entire cost of production (as distinct from the costs of reproduction, which continue to fall).

2.2  Interactivity

  Connected devices are read-write, which means that the citizen is no longer a mute consumer but can be an active participant in the creative process.

  2.2.1  Unleashing the creative citizen

  One of the most significant features of the new media is its potential to unleash the creativity of individuals who have hitherto been denied access by established barriers to entry. This potential is already being realised in, for example, the proliferation of "blogs"—which may be this year's fad, but which nevertheless represent an important change in the dynamic of public expression.

  Technologically, the read-write capabilities of the new media are the consequence of its ability to reproduce content freely, and vice versa; controlling one necessarily involves restricting the other.


  Non-industrial reproduction, including photocopying, home-taping and now file-sharing, has seriously undermined the copyright-based business model in which many people each pay a little towards the production costs of creative content. These costs involve skilled, creative people—authors, editors, producers, performers and directors—and do not fall in the same way as reproduction costs fall. The fact that we can buy, for less than £20, a music CD whose production involved months of rehearsal by a full orchestra; or for a similar price a book which took the author half a lifetime to write, is an important democratic benefit of which we should not lose sight in the rush to embrace everything free and open.

  Yet home-taping and file-sharing have undermined the creative industries' trust in their customers, to the extent that they find it necessary to impose digital rights management "solutions", in some cases by deception. The most egregious example of this remains the notorious use by SonyBMG of the XCP content-protection system which installed software without the user's consent and in so doing introduced dangerous vulnerabilities to the user's computer system; but it is by no means the only case.

3.1  DRM and Distrust

  DRM is, almost entirely, predicated on the distrust between the creative industries and their customers. This distrust, rather than the entirely understandable goal of wishing to protect the "many people each pay a little" business model, is the main driver of investment and deployment of DRM and is its main weakness.

3.2  The Music Industry and its consumers

  The music industry is youth-focused and has to face the fact that its most avid and loyal consumers tend to have low disposable incomes, yet for a large part of its income it depends on a demographic described as "£50 man"[21]. Unlawful use of content is not universally bad for the music industry; indeed, to some extent it depends on the free exchange of unlawfully-copied, infringing copies whether by file-sharing, home-taping or even, in some sectors, by pirate radio broadcasting, to promote and disseminate its artists.

  This unlawful use enables younger consumers with less disposable income to consume more, and more diverse music than they might otherwise do.

  3.2.1  Bogus Arithmetic

  The committee should beware of the bogus arithmetic sometimes used to quantify the industry's losses to unlawful copying. If those who currently use unlawful means (such as file-sharing and home-taping) to enjoy their music were forced to pay full price for the content they now "steal", it is inconceivable that they would do so, since they do not have the disposable income. They would just listen to less music.


  A healthy industry trusts its customers; the mainstream creative industries, arguably for good reasons, do not. The level of distrust between the creative industries and their customers has never been higher, and will only get worse if the industry proceeds on its present course. The current generation of digital rights management solutions will not help rebuild trust, and while the distrust and the tensions remain, the industry cannot be considered to be in good underlying health, whatever its financial statements may say.

4.1  Setting the limits to DRM

  The wholesale dismissal of DRM—as many activists on the "left" of the debate advocate—is as unrealistic as the suggestion that it should be hard-coded by law into all computing platforms. The existing protections for DRM set down in Article 6 the EU's Information Society Directive[22], and implemented by the UK government, have not yet been shown to be deficient and legislative changes, if any, should be deferred until the market for such protections has matured. (Cases brought under the analogous provisions in the US, under the Digital Millennium Copyright Act, have, however, highlighted the risks to freedom of expression in such legislation.)

  4.1.1  Principles

  A set of six principles to which DRM systems should—in the opinion of this author—adhere is listed as an appendix.

  4.1.2  Trust-Based Digital Rights Management

  It is possible to conceive of a system to manage digital rights based on consumers' trust, rather than on cryptographic enforcement. Prima facie, such a system might not be able to offer rightsholders the same level of assurance as the systems based on strong cryptography, but no system can offer absolute security; and a trust-based system could provide equivalent or enhanced levels of both integrity protection and usage recording.

4.2  Collective Licensing[23]

  Collective licensing has a long history as a solution to difficult rights management problems (in particular, but not limited to, licensing the public performance of musical works). It is not without its disadvantages, but has not significantly been developed for the new media and may still have significant potential. Economies in the administration of collective licensing as a result of the global nature of the market and by the application of technology mean that competitive collective licensing—in which different collecting societies compete to license the same or similar uses of the same content—may now be practical, thus dealing with the objection that collective licensing creates unresponsive monopolies.

  The creative industries, however, have so far preferred to take the DRM route. Collective licensing could address the same problems but without being based on distrust, therefore helping the creative industries to rebuild a relationship of trust with their consumers.


5.1  Copyright Breaks Down

  If the creative industries cannot maintain a democratic business model ("many people each paying a little"), the market for creative content will change dramatically, and is likely to become polarised. On the one hand will be amateur producers, who will rely on a day job for their income; while on the other, professional productions will have to rely on government, corporate or private patronage and sponsorship.

21   Referring to the average spend per visit to a record store; £50-man is typically middle-aged. Back

22   Directive 2001/29/EC of the Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the Information Society. Back

23   The author is a consultant to the Copyright Licensing Agency Ltd (CLA), which carries out the collective licensing of print publications in the UK. This paragraph does not purport to represent the views of CLA or any of its members. Back

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Prepared 16 May 2007