Select Committee on Culture, Media and Sport Written Evidence

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).


  As the Committee is surely aware, public attitudes to intellectual property are increasingly relaxed. By way of illustration, popular websites such as 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 (, 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.


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.


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.


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.


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).


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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