Memorandum submitted by Dr Paul Lefrere
The attached brief memorandum has been prepared
specifically for the Committee and relates primarily to issues
associated with unauthorised reproduction and dissemination of
creative content.
I would be happy to expand upon it in writing
or in person, if required, for example to address the other issues
facing the Committee.
The memorandum draws upon my experience in three
areas:
— business (as an Executive Director
of Microsoft and a member of a cross-industry policy group, representing
media developers, publishers, and technology providers);
— international standards committees
in areas such as Digital Rights Management; and
— research into the effects of digital
convergence and new media (as a Senior Lecturer at the Open University
and a Professor in the University of Tampere, Finland, participating
in relevant Europe-wide working groups such as the Kaleidoscope
Network of Excellence's AIDA, Academic-Industry Digital Alliance).
INTRODUCTION
As the Committee is surely aware, public attitudes
to intellectual property are increasingly relaxed. By way of illustration,
popular websites such as www.myspace.com encourage users to share
their favourite mass-published new media, by uploading music,
videos, etc. As with peer-to-peer file sharing and disk copying,
much of that sharing takes place without the permission or knowledge
of the creators of the material. Some of those who copy or share
have little knowledge of the laws governing such actions, and
could be dissuaded through awareness campaigns. Others are confused
by the variation in practice in industry. For example, the growing
use of Creative Commons agreements that specify what can be done
with new media created by others, as in Channel 4's FourDocs (www.channel4.com/fourdocs),
is encouraging members of the public to become contributors to
new media, by producing derivative works.
In this fast-moving area, it is risky to introduce
legislation that ignores the realities of the current state of
public knowledge about copyright, or ignores wider social trends
towards openness and sharing for the public good, such as moves
to Open Content and to Open Source. All of those factors govern
public behaviour. Successful players in the creative industries
are anticipating or accepting those changes and modifying their
stance on copyright, to allow new markets and income streams to
develop to replace income "lost" through changes in
purchasing patterns. Less successful players work against those
trends, by lobbying for unnecessary legislative changes and by
introducing stronger technological barriers to copyright violation,
via smarter Digital Rights Management. Both legislators and industry
players need to take account of demographic changes, which seem
likely to magnify the propensity to share and modify new media
in ways that today are illegal. To illustrate, it is said that
the main buyers of new media online are males over 50, while in
contrast, today's young adult males (who eventually become the
market's 50 year-olds) have very different buying patterns, and
very different attitudes to file-sharing and other forms of copyright
violation.
None of this will come as a revelation to the
Committee. They will therefore appreciate the recommendations
below, directed at providing the Committee with additional information
concerning:
— common types of copyright violations,
today and prospectively, and their root causes;
— problems facing legitimate users
of new media, arising from technical or legal issues; and
- key questions and potential answers.
RECOMMENDATION 1
Commission a short-timeframe study to fill evidence
gaps
Consideration should be given to inviting academic
centres of excellence (eg Oxford Internet Institute, Open University
Rights Department), independent of industry yet in contact with
key groups such as the Creative Industries IP Forum, to contribute
to a short time-frame study with a brief as outlined below. Funds
might need to be found for this.
RECOMMENDATION 2
Invite centres of excellence to propose policy
questions for consideration
Questions that might form part of a brief include
these: "Is existing copyright law too distant from the public's
view of fair use, or just too complicated? Should it be made more
light-weight, taking into account the emergence of agreements
influenced by "open source" thinking, such as the General
Public License, GPL? Or should it be more restrictive?"
As part of such a brief, advice could be obtained
on courses of action that would not give rise to new and worse
problems for the industry and for users. A cautionary example
is Sony's attempt to stop CD copying by using a problematic form
of Digital Rights Management based on a "Rootkit" that
caused many problems for users and even more problems for Sony
and for the credibility of Digital Rights Management.
RECOMMENDATION 3
Establish public levels of understanding of their
responsibilities
Another area where additional information would
be helpful concerns the level of knowledge in the population at
large about what they are permitted to do with new media. Rapid
desk research and surveys could identify trusted sources of information
for consumers, and help to highlight significant misconceptions
needing to be addressed by industry, and areas where there is
a generalised lack of appreciation of the position and needs of
the creative industries. This would also reveal any cases where
consumers' lack of clarity is the result of variations in custom
and practice between actors in the media industries, and differences
in views about the future of copyright.
RECOMMENDATION 4
Use public-oriented scenarios and surveys to highlight
key issues
Here are some typical scenarios which such a
study could explore for the Committee:
1. Scenario: Industry changes its
stance on home-digitisation for personal use, from condoning it
(eg, the RIAA's position until 2006) to declaring it illegal unless
each rights holder has given permission (the RIAA now), and aggressively
targets offenders (show trials).
Questions: How will this affect the behaviour
of members of the public? Where does this leave citizens who assembled
pre-2006 digital collections—are they at risk of prosecution?
Is legislation needed here or is Creative Commons the way forward?
2. Scenario: Criminals mass-produce
illegal copies of new media. Copies are bought at car boot sales
by members of the public.
Questions: Where do they think they stand,
legally? Would greater knowledge of their actual position change
their behaviour?
3. Scenario: Fair use guidelines,
and complementary schemes for paying for additional use, have
little impact on practice, because people find them too complicated
to apply to new media and to access through the internet.
Questions: What difficulties do they
face, and what kinds of work-arounds have they developed or do
they condone? For example, many of the Fair Dealing provisions
made for Education assume that a classroom is always a physical
space. Unnecessary restrictions follow, as with using off-air
recordings, which today is allowed only in the classroom or on
networks where access is limited to buildings owned by the institution.
This excludes distance or off-campus students from accessing materials
made available to their colleagues on-site.
4. Scenario: DJs performing in clubs
are covered by general licences held by the venue, and offered
by collecting societies such as Performing Rights Society, and
Phonographic Performance Ltd, Those licenses cover the use of
CDs but not playing compilations from an iPod. Licences offered
by another collecting society—MCPS—also cover remix
for the purposes of performing live, but not emerging forms of
remixed music or video.
Question: Is it a workable solution to
extend a club's general license to cover such cases?
What should be clear from this is that licenses
to use new media, offered by the creative industries, lag behind
the patterns of use that are emerging amongst citizens who aim
to be law-abiding.
A fuller set of scenarios could be developed
in a sponsored study, to reflect those trends and also encompass:
— current and likely ways of using
and sharing media, not covered by current licenses;
— new locations for using and sharing
media, including "virtual" spaces such as online forums;
— changes in consumer attitudes to
fair use, to copyright and to licensing (students copy entire
books; teenagers see little harm in illicitly sharing new media;
3G users reject the notion that they need a TV license to watch
programmes on their mobile phone);
— changes in technology (facilitating
or hindering peer-to-peer sharing, interface emulation and other
forms of copying); and
— difficulty in accessing media for
legitimate purposes, caused by the introduction of anti-copying
systems that subsequently are withdrawn from the market without
making provision for unimpeded access to copy-protected media
(a problem that libraries are well aware of).
RECOMMENDATION 5
Use best-practice methods to cover the ground
and build consensus
The Committee should require any commissioned
study to deploy robust Requirements Capturing and Scenario Planning
techniques, as used in fast-moving and high-tech industries, to
take soundings on likely developments and to identify solutions
that best meet the needs of key actors.
23 February 2006
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