Further musing on copyright reform (2)

Following on from the first bit, I'm now into the detail of the report.
Already warning bells are ringing...
1) Still no recognition of the amateur / bedroom creator.
2) there appears to be a lot of anecdotal evidence here and very little factual research to back it up. For example: "We have heard from ITV, for example, that the adoption of the ISAN system has contributed
to increased revenue collection. Although it is impossible to be absolutely certain that the growth of collection revenues was the result of ISAN alone"
3) I have concerns about whether (in the absence of proper evidence) the differences between causation and correlation are being properly understood.
Carrying on...

The Images and metadata bit is interesting, a fair number of reasonable suggestions on unique identifiers and registries but then, when it gets to the critical bit about what to do about stripping out meta-data, it's back to a voluntary code of practice.
Sorry, but doing this deliberately is already illegal* so if, as suggested, the industry is in the habit of wide-scale meta-data stripping, what the fuck difference do they think signing up to a voluntary agreement is going to do?
It makes me wonder if the report writers have had the Treasury breathing down their necks the entire time saying "remember, there's no budget for this."
In my day job I'm what's euphemistically known as a "change professional" and I will tell you one thing for free; if you don't put budget and backbone behind something you won't change shit.
Carrying on

Finally in section 67 we begin to see the scale of creation at the moment. PPL reports that members are registrering new recordings at the rate of 10200 per week. That's half a million new recordings a year from the UK alone. But this is just the formal stuff that people register. I wonder what percentage of bedroom / amateur recordings are not registered?
To be fair, PPL appear to be doing some good stuff on databases, but I do worry a bit about the possible naivety expressed in the idea that where the UK leads other countries will follow and exactly how this will translate into good news "for the economy as a whole". As Dr Ben Goldacre would say, "the plural of anecdote is not data." 

Section 73 acknowledges the existence of content outside of the traditional industry channels. This appears to be covered in a single paragraph with a suggestion that the LCC project looks at it. Buck passed, no budget required.

Section 75, second mention of end-users. That might be you or me.

That's the data section done. The surprising thing about this is that they didn't expect this to be a problem when they started out. Who were they talking to? People have been discussing exactly this problem for years.
Oh well, it's also me done for the night. In the next thrilling installment we look at The Copyright Hub.
Join us then...



* Criminal as well as civil charges can be brought.

Further musings on copyright reform (1)

Slight change of plan. I was going to post a single blog on this but it might ramble on so instead I'll post a number of them as I work through and come back and correct any errors or misunderstandings.

For the last couple of evenings I have been reading the second half of the Intellectual Property Office (IPO) report on copyright reform.
I do these things for you...
I summarised my feelings on the first half here: Proposed UK Copyright reforms draft paper out

The second part of the report covers "Streamlining copyright licensing for the digital age" and yet, just 14 pages into the 76 of the report, I find myself wondering if a) they use the word "streamlining" in the same way that most of us would and b) if they're really aware of what's actually happening out there in the digital age.
I'm making these notes as I go along but things that concern me so far are:
In respect of streamlining the process, the first half of the report seems to make things more complex (as bemuso explains here).
In respect of understanding the digital age:
1) they appear to think that the representative groups from the analogue age still speak for the digital generations.
2) they appear to think that creators and consumers are two distinct groups and don't appear to understand the sheer volume of amateur / unpaid content creators out there.
3) they still don't appear to have grasped the scale of the issue they're attempting to solve, this is indicated by a suggestion that you-tube users would apply to license the music that's being played in the background of an amateur video.
Hello! Over 48 hours of video is uploaded every minute, how in the name of all that's holy do you intend to police this? Because if you can't, then people will just skip past your pain-in-the-arse (and probably stupidly expensive) licensing step and upload anyway.
sheesh.
Anyway, back to my reading.

A Manifesto for the Content Industry 9 - Be Genuine

We’re sick of spin, we’re sick of hype. If you churn out repetitive and unoriginal content whilst claiming it’s the best thing since last year’s clone, we’ll stop listening and go elsewhere (a lot of people already have).

“The best thing since sliced-bread” gives over 3 million hits on a google-search, I wonder how many of those things really are?

There is a theory that for any headline that ends with a question-mark*, the answer is “no”.

“You can tell when a politician is lying, his lips move.” Gets you over 500 hits on Google.

“Don’t believe the hype.” By Public Enemy reached number 18 in the UK chart

“So what?” I hear you ask. Well, we, as a populace, and hence as customers, are becoming more cynical. Advertising is pervasive but untrusted, techniques such as having the volume of the commercial breaks louder than the host programme and releasing ad campaigns that are designed to be offensive safe in the knowledge that any ASA activity will be retroactive further heighten the sense of intrusion.

Programmes such as The X-Factor are routinely referred to as “glorified karaoke” and the shelf-life of the winners is generally planned only to last until the next series (anything else is a bonus).

Media conglomerates have control of so many different channels that it is easy to find an advertisement for a TV programme masquerading as an article in a paper owned by the same company (or vice versa).

We, the customers, have known this for a while but, with the advent of a truly interactive web, people are finding out how to route round the hype, the misinformation and the adverts and are finding their own trusted sources.

Many legacy companies are seeing this as a threat. This loss of control means that their influence is reduced accordingly:

If people are TIVO’ing shows then they’re not watching your expensive adverts

If people aren’t listening to commercial radio they’re not hearing your carefully selected play-list

If people aren’t reading the newspapers then they’re not reading your trend-setter’s latest must-watch / -read / -listen to recommendations

But overall spend on entertainment is going up, especially for independents. So where are they getting their recommendations?

Well, the same way that they always did really, from friends, peers, colleagues, trusted reviewers, fanzines etc. It’s just that now, most of these are online and can have a far wider influence than they did previously.

And the reason that people are listening to these sources is that they respect the opinions and advice given. These new sources have established a track record on honest and reliable output that allows people to make a judgement based on that history.

This is an opportunity, and an easy one to open up. Most aspects of the content industry have their talent scouts (in one form or another) who could easily open up a credible dialogue with potential fans and customers, but very few are doing so.

More often than not this gap has been filled by amateur  / semi-pro bloggers and websites.

Sometimes industries will embrace these new sources, frequently they will do so in a confused, contradictory and ultimately litigious fashion.

This link [http://www.techdirt.com/search.php?cx=partner-pub-4050006937094082%3Acx0qff-dnm1&cof=FORID%3A9&ie=ISO-8859-1&q=dajaz1] shows the list of articles about popular hip-hop blog Dajaz1, a blog that was taken offline for hosting infringing content, a significant chunk of which was found to have been provided by the record labels for promotion.

There are plenty of other examples of fan-supported sites being closed down for copyright reasons that, ultimately, just drive people away from legitimate content.

From accounting practices to promotion techniques the legacy content industries (particularly music and movies) don’t have a good history of honesty. That’s a gap in the market, that’s an opportunity.

P.S. As well as my recurring concern about companies adapting before I’ve finished writing this I sometimes wonder if I’m going the wrong way with some of my analysis. Fortunately there is no shortage of regular reminders that reform is needed, generally in the form of one of the industries taking some ridiculous legal action. After writing this up last night my vindication came with this article from techdirt** about how skipping commercials might be considered illegal.

* e.g. Did radio-active, nazi gerbils kill Elvis in JFK cover-up?

** My go to source for all that is wrong in the Intellectual Property world.

A Manifesto for the content industry – 1. Do Not Sue Your Customers

Expanding from my previous blog this is the first in a series whereby I use you, my faithful readers (both of you), to sense-check my work and point out my idiocy. Thank you.

Do not sue your customers. Seriously, just don’t. It’s the economic equivalent of going to war. If, in the words of one CEO, you say “We’re going to sue the [expletive deleted] out of generation Y”, exactly how many of generation Z do you expect to buy your products? If someone is taking content you have the rights to and selling it on commercially, sure, take ‘em to the cleaners. But blocking up the legal system with 25,000 individual cases of people downloading The Hurt Locker is not only targeting a bunch of people who have no impact on your business model, it’s also an abuse of the legal process.

Taking legal action against someone is an act of aggression. In most walks of life it’s a last resort once all other options have been exhausted. If you have an argument with your partner, you talk it through, you might get counselling, you might end up at Relate, but you don’t phone the divorce lawyer straight away.

Similarly if your neighbour won’t return the lawnmower, you go round and ask for it back, maybe a couple of times, you don’t dial 999 as soon as the clippings have been emptied into the bin.

Most people would agree that the first thing to do in any disagreement is to talk to the other party and see if it can be resolved amicably but, for some reason, that doesn’t apply to the content industry. In the world of Intellectual Property, intellect is left behind and the first course of action is, all too frequently, a call to the legal department.

So ask yourself, are you getting hot under the collar about nothing? If a pre-mastered copy of your movie get’s leaked onto the web before all the special-effects are done, is this really going to stop people going to the cinema to see it when it’s done? Before you reach for the lawyers consider if you could be better served by going out there and talking to people. Explain that what they can download isn’t the finished article, empathise with them, if they’re going to that effort they’re probably some of your biggest fans. Handle it right and they can be some of your biggest advocates as well.

But let’s move on from this opening argument though and consider what to do if you think that you are genuinely being financially deprived due to someone else’s actions. There are three things to consider here:

1.  Are you targeting the right person?
2.  Are you using an appropriate means and claiming an appropriate recompense?
3.  Are you fully prepared for any backlash?

We’ll tackle these one at a time.

1.  Consider the defendant: are they an end-consumer who you haven’t effectively served in the market, or are they a middle-man profiting off your work without authorisation? If they’re the former then you’re barking up the wrong tree. Ventures like Spotify are increasingly showing that if you provide a decent legal experience that serves your customers, they don’t feel the need to get around copyright or distribution restrictions.
2.  Having identified that someone is wilfully, criminally distributing your product, you need to make a targeted and proportional response. If a torrent site in Norway has been distributing your software, use the existing legislation to find out who the uploader is and target them for proportional damages. Don’t sue the torrent site for the statutory maximum. There are two reasons for this, one is that if you take the maximalist approach the chances are that the site will close, declare bankruptcy and you won’t see a penny, the second reason is backlash (see point 3). Don’t be tempted by the dollar signs and go for the end-users either, it will sting you. The makers of the Hurt Locker are currently in the process of contacting 25,000 people and demanding $1500 dollars or threatening them with legal action (on the most flimsy of evidence). That’s what we call a shake down and it’s winning them no friends, even in the courts.
3.  Backlash. You’re probably familiar with the Streisand Effect. If not, take a moment to google this. Memory refreshed? Right, consider this and the quote at the top of the page. The internet is not going away. No matter how much lobbying is done. The current crop of rights holders are not going to remain the gatekeepers forever; there are too many alternative distribution methods now. If you aggravate and disenfranchise your artists’ fans both they, and the artists, will route around you. In some cases (see ACS Law) they may take active steps against you. This doesn’t mean you can’t take action when it’s needed; but you’ll need to be on the front foot with your web presence and you’d better have a good and honest explanation.

The bottom line is, if you’re relying on taking legal action to try to prop up a business model that’s no longer serving your customers, then you’re failing both your customers and the artists you’re claiming to represent. Adapt or be forgotten.

A manifesto for the content industry

Following on from my previous blog about the gender discrepancy between the charts and the amateur scene I’ve been doing some further thinking about how the music industry, and the wider content industry / rights holders* might want to behave if they are to survive (and even prosper) in the post-digital economy.

So, the manner of the Cluetrain Manifesto, I have produced a Manifesto for the Content Industry.

Now, before we get onto the manifesto, I want to head something off at the pass. This is not about whether it is right or wrong to copy and distribute files via the internet. This is not a moral debate. File sharing happens and, in one form or another, will always happen. This is a suggestion for how companies can accept this economic reality and still remain a viable business.

Right, now we’ve got that out of the way, here are my founding principles for a modern content provider. They’re in no order apart from number 1 and I'll expand on them in turn in future blogs:

1              Do not sue your customers. Seriously, just don’t. It’s the economic equivalent of going to war. If, in the words of one CEO, you say “We’re going to sue the fuck out of generation Y”, exactly how many of generation Z do you expect to buy your products? If someone is taking content you have the rights to and selling it on commercially, sure, take ‘em to the cleaners**. But blocking up the legal system with 25,000 individual cases of people downloading The Hurt Locker is not only targeting a bunch of people who have no impact on your business model, it’s also an abuse of the legal process.

2              One shared file does not equal one sale lost. It really doesn’t. People will accept something for free that they won’t be prepared to pay for, don’t kid yourself otherwise. A shared file is equally likely to lead to more sales rather than fewer.

3              Content will always be produced and consumed with or without you. You are just a facilitator. If your entire industry disappeared overnight, people will still create and they will find other ways to share and appreciate it. Never lose sight of this.

4              You can compete with free. Seriously, there are plenty of working business models out there, study them. You are better placed than anyone to make this work, failure to do so is not about not being able to compete with free, it’s a failure of your business acumen.

5              Add value. What are you doing that your customers can’t do with 20 minutes and the internet? What are you doing that a creator can’t do for themselves? If you’re not adding value, why would someone pay you?

6              Focus on quality. A corollary to adding value; you cannot compete on quantity, it’s you vs the world, you have to be better than good.

7              Be brave. If you’re focussing on sequels, glorified karaoke acts, this year’s answer to “X” or trying to build a brand then you are guaranteed to miss the next trend when it comes along.

8              Use your experience. There’s a lot of noise out there, but there’s also a huge amount of good stuff, your job is to find the great stuff. For example, if you’re a newspaper then do the investigative journalism, get into the detail and find the facts behind the story. I can get opinion and newsfeeds faster than you can go to print, get me the truth and I will buy your paper.

9              Be genuine. We’re sick of spin, we’re sick of hype. If you churn out repetitive and unoriginal content whilst claiming it’s the best thing since last year’s clone, we’ll stop listening and go elsewhere (a lot of people already have).

10            Free your people. If you’re doing the other stuff right your people should have some pretty interesting jobs. I bet they’ve got interesting stuff to say. Do they blog? We do. Do they comment in chatrooms? We do. Let them join the conversation, it should be part of their job.

11            This is a global market. If you charge western prices to the third world then people will find a way to get the content for free. 99c might not be a lot to readers of this blog but it’s a day’s wage to large amounts of the globe. But the bad news is that you can’t stop a European going to an African website and buying from there, your unit cost is zero, expect your prices to trend that way.

12            The gravy train has stopped, it’s time to get off. You are no longer the gatekeepers to content and you no longer have a monopoly. Lobby if you like (and we know you do) but you’d be better off coming to terms with it and adapting.

13            The customers are out there. A corollary to 8; the argument that people are unwilling to pay for content has been proven false by the success of I-tunes, Spotify, The Financial Times and numerous others. You have to figure out who you’re trying to serve and what their needs are (Hint, the answers aren’t “everybody” and “everything”)

14            Do not sue your customers. I know this is the same as 1 but it’s so important I thought I’d say it twice.***

So there you go, that’s my stab at a set of principles for a 21^st century content provider. What do you think?

* Please note, I am using the term “Content Industry” as a catch all to cover the major players in the Intellectual Property market (Studios, Record Labels, Publishers, Newspapers, Software houses) rather than the actual creators of that content (Artists, film-makers, authors etc) as the behaviours and ambitions are generally very different.

** Take legal action against your competitors if you must, but be aware of the Streisand affect. You can lose as much business being in the right as you can being in the wrong.

*** With reference to Red Dwarf