Proposed UK Copyright reforms draft paper out (2)

Thanks to @copyrightgirl I have been reading the snappily titled "GOVERNMENT POLICY STATEMENT: Consultation on Modernising Copyright". Here is the second part of my initial analysis looking at Extended Collective Licensing and Collecting societies (part one is here).

Extended Collective Licensing
I was going to tackle the second third of the consultation today but it turns out this has largely been done for me already. To save me the effort of re-writing something already better written (and to save you the pain of reading it) I'll just direct you, well, directly to the bemuso blog site where you can read his* analysis.
There's 4 sections to it so it may take a while.
Go ahead, jump there now, I'll wait here.

Back? Excellent.
Now we don't agree entirely in our analysis, but only in context of who might be calling for this and benefitting from it. It's altogether likely that Rob (I hope he doesn't mind me calling him that) has sources of knowledge that I don't, but I wonder what makes him suggest that the people pushing for these changes (we agree that it's not the consumer) are "Google and the free content lobby". It feels to me that the people most likely to benefit from these measures are the currently incumbent collecting societies themselves.
So having concluded that the second section of this consultation serves only to bring confusion and complexity to both consumers and creators I shall move on to the final section of this document.

Codes of Conduct for Collecting Societies
This bit gets me down a touch because it shows such a lamentable failure to a) look at what's happened elsewhere and b) stand up for the public against vested interests.
Shorly after pointing out that this is a billion pound operation it says "However, the Hargreaves Review noted that collecting societies tend to be monopoly suppliers in the sectors in which they operate, and that there was evidence that practice could be improved in some areas. Hargreaves argued that greater protection was required both for members of collecting societies, and for their licensees."
It then describes feedback that raised issues "in relation to lack of transparency, administrative costs, and negotiation practices around licences and tariffs" - so pretty much everything they're supposed to be doing then?
Despite this we're going to extend these collecting societies? Even though there are plenty of other options that already exist out there in the market and aren't requiring government intervention (see the 3rd bemuso blog).
Clearly codes of conduct are required in order to make sure these collecting societies operate properly.
Well, no, actually that's not clear at all, but that's not how governments think.
But codes of conduct do a good impression of making it look like something is being done; that is definitely how governments think.
"Collecting societies and some rights holders favoured a purely voluntary model based on principles developed by a working group of the British Copyright Council. Considerable effort has gone into developing these proposals, and collecting societies argued that they would deliver the intended benefits of the policy. However, licensees overwhelmingly sought a statutory basis for codes of conduct, supported by the potential for penalties to ensure compliance and counteract the monopoly position of collecting societies. Their fear was that without a credible enforcement process, the codes would not have any real impact. This was seen as particularly important if collecting societies’ powers were extended (e.g. via authorisation to operate ECL schemes) to allow them to licence on behalf of non-members."
Well no shit. The vested interests want a voluntary code of conduct. Ask yourself how well that works for advertising and the press?
Fortunately there are some people involved who are at least nearly as cynical as me so we have "Government will therefore legislate to allow the introduction, through Regulations, of a backstop power to
enable the application of a statutory code of conduct. This power would be used in the event of failure by a
collecting society to implement or adhere to a voluntary code which encompasses the minimum standards."
I wonder if that will make it through to the final draft?

I still don't understand who, apart from the licensing agencies, is benefitting from either the ECL or the codes of conduct. This really feels like a classic case of "when all you have is a hammer, everything looks like a nail."
And I find that very depressing.

Little help here please

I'm going to try and do a bit of an experiment in making my music available for wider use. You can already download the songs on a pay what you want basis, but that's not what I'm thinking about.
My plan is to make all the original multitracks for those songs available.
I have three challenges to this though:

1) the sheer amount of time it's going to take me to upload 55Gb of 88.2 24bit files.

2) Choosing where it should be uploaded to. I'm thinking a torrent site but with the pirate bay now being blocked in the UK (and not being particularly techy and not knowing how to get around that)  the obvious target has gone.

3) Getting word out that it's there. Back to the old obscurity problem.

Now obviously no-one can help me on the first one, but any advice or suggestions on the second two would be greatly welcomed.

Thanks

Proposed UK Copyright reforms draft paper out (1)

Thanks to @copyrightgirl I have been reading the snappily titled "GOVERNMENT POLICY STATEMENT: Consultation on Modernising Copyright". The press release has been titled "Modernising copyright to help strengthen contribution to growth" but I can't help but feel if that was their genuine intent then they have, if not failed, then at least fallen a long way short of a stunning success.

Skipping straight past some questionable statements in the exec summary (which does at least try and bring a measure of balance to the debate) we'll look at the separate chunks in this document.

The consultation covers three areas: Orphan Works, Extended Collective Licensing and Codes of Conduct for Collecting Societies. Having read through this a couple of times I'll address each section in turn. Corrections and criticisms are more than welcome in the comments.

Orphan Works:

For those unfamiliar with the terminology, these are works where the copyright owner is not known or cannot be located. This issue with orphan works is that these works are effectively locked up and no-one can make use of them. Remembering that the purpose of copyright is to promote culture and knowledge it makes sense to try and open up this considerably bank of material for wider use.

So far so good.

Basically the governments proposal is that orphan works can be licensed if a "diligent search" has unearthed no owners and been confirmed by an independent authorising body. At the moment the definition of diligent and the nature of the authorising body have not yet been revealed, so we'll skip over that.

The issue I foresee is around this paragraph: "This permission should come at an appropriate price – a market rate, to the extent that one can be established". The problem here is that the current major rights holders do not have a good record of setting reasonable market rates for licenses. There is a litter of failed innovative start-ups that have tried to engage the major rights-holders to license content but they've been squashed by completely unreasonable and, more importantly, unrealistic license demands.

Looking at two of the four key principles (i'm ignoring the others because I don't see a problem with them) there appears to be a bit of confusion as to what is being attempted here:

"• Minimising market distortion between orphan and non-orphan works, by ensuring the owners of rights in
orphan works are treated as similarly as possible to comparable ‘non-orphan’ rights holders.
• Maximising the benefits to economic growth of the scheme."

The problem here is that the second of these is most easily achieved by dumping the first. The way that these works can provide most economic benefit is by saying that all orphan works are public domain. That way they can be copied, deconstructed, built up, remixed, re-developed and generally transformed into any thing that provides value to a potential customer. Trying to minimise the distortion pretty much ignores the whole purpose of copyright - the growth of culture.

I fully understand the principle that they are trying to preserve the rights of someone who might subsequently claim ownership, but this is further undermined by another section of the proposal:

"Works of unknown copyright status, such as where the work is over 70 years old and the date of death
of the author is unknown, will be within scope of the scheme."

This is just nuts. Copyright is there to inspire creation of new content. If the work is over 70 years old how much new content is the original creator likely to make? The only beneficiary to this part of the scheme is where the rights are owned by a corporation. If the work is over 70 years old and is orphan then it should just revert directly to the public domain.*

They do make some concession with "• To reduce anomalously long copyright for certain unpublished, pseudonymous and anonymous very old works, with the consequence that a number of these works will cease to be in copyright rather than being orphan works." but then provide no detail of which works might fall into this category or what might constitute "very old".

Right, this is turning into a long blog so I'm going to cover the other parts in subsequent posts, once again, if i've misunderstood (or just missed) anything, please correct me in the comments.

* ignoring, of course, the sheer ridiculousness of the life +  70 year copyright rule.

A Manifesto for the content Industry 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.

The entertainment industry is an aspirational business. I don’t know how many applicants you get for even the most minor role but I’ll bet the glamour of either the music of movie industries pull in a bunch more candidates than the equivalent roles in engineering or finance.

Journalism and writing are also aspirational jobs. Pretty much any industry where you’re paid to express yourself (or facilitate that expression) is going to be an attractive one to a lot of people.

Which is why seeing articles like this one is a bit depressing: Sky News clamps down on Twitter use

Basically, in implementing this ruling, each of their individual twitter feeds became less valuable. In fact, you might as well cancel the individual feeds and just link to the website.

If we go back to our old techdirt equation of Connect with Fans + Reason to Buy = $$$, this appears to be a clear case where the institutional instruction is reducing both of those factors; by restricting people to only tweeting about their field it makes it harder to make a connection with readers (fans) and by forcing everything through the central news desk it slows down the transmission of information and potentially reduces the value of their feed (reason to buy).

In a market where the legacy players are fighting to preserve both their reputations and their relevance the expertise of their staff remains one of their most powerful weapons. Restricting access to that expertise (or vice versa) undermines the business.

The entertainment industries in particular are suffering something of a crisis of perception as much as anything, contempt for the inherent imbalance in current copyright law, and the continued head-in-the-sand behaviour of the lobbying groups has meant that “the industry” is widely seen as “the bad guy”. Actually engaging with those disenfranchised fans (rather than suing them) is going to be necessary to rebuild the industries’ reputations* and the people on the ground are the ones to do this – not the CEOs or heads of the lobbying groups. Why? Because of Stephenson’s sixth law**:

I’ve recently discovered a blog run by a bunch of creators*** (mostly musicians) who appear to be trying to do something around that connecting with fans and, judging by some of the comments, they appear to be having some degree of success in terms of persuading people. Unfortunately they also appear to be trying to approach the whole debate from a moral standpoint (ignoring the underlying economics is rarely a good idea) and also by thinking of things in terms of a zero-sum game – they seem to be trying to attack pretty much every web-based service as not-paying-as-well-as-the-old-model rather than paying-better-than-nothing.

Additionally some of their writers have a tendency to embark on aggressive, expletive-fuelled rants about the people they’re trying to win over, which doesn’t seem a particularly good strategy.

But anyway, it’s a good example of trying to free up your people and helping them connect with their current & potential future fans – and they’re getting a lot of hits on their articles.

So whilst I may disagree with a lot of what they say, it’s a prime example of getting your message across without falling foul of the sixth law.

* Assuming that the industries update the rest of their business models as well. White-wash won’t work.

** This, of course, has absolutely no data to support it at all.

*** I’m told that there’s a rumour (could I be less specific?) that this site is in fact supported entirely by a major music label and is what is known as an “Astro-turfing” site, but I have seen no evidence on this and it’s largely irrelevant for the purposes of this instalment.

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 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.

There are no longer any gatekeepers. You no longer control either the creation of, or access to, content. This doesn’t have to be a threat, this can be your next opportunity, You have spent the second half of the last century amassing experts in your field, be they A&R men, cinematographers, editors, investigative journalists or any other media professionals. If, in the last decade’s rush to bottom, you haven’t got rid of them all, these are the people who can differentiate your offering from the millions of bytes of user-generated content that is uploaded every second.

Note: this does not mean take your existing content, stick it on the web and hope.

Differentiation is an opportunity for monetisation.

Take the journalism example in the opening paragraph: “explosion wipes Doncaster off the map*” is a headline that screams across the web faster than any formal news channel can keep pace. But at that pace, and by the mechanisms of blogs, twitter and youtube, that’s almost all you’ll actually know half an hour after you first hear about it.

If you follow someone local to the incident you may pick up the name of the factory and a couple of nice photos (assuming it’s a daytime incident**). But the impacts of it, and the reasons behind it? That’s the opportunity; I’ve yet to see a spokesman giving a press-conference to “citizen journalists”.

This is even more important if there is anything unusual about the incident. At a time when it is easier than ever to disseminate misinformation and lies, the need for good investigative journalism and a trustworthy 4^th estate is greater than ever.***

This level of integrity is something that can be charged for, either by means of a paywall (see the Financial Times) or by actually selling pulped bits of felled trees (see Private Eye).

Expanding out from news reporting, we can see the same opportunities in other fields. There’s plenty of raw talent out there but very few people who, from scratch, can apply the necessary polish or have a wide enough network to achieve a critical mass for distribution.

Unsurprisingly this ties back into the Add Value and Be Brave sections, but it boils down to answering two questions:

why would a content creator want to work with you?

Why would a content consumer come to you (and pay you) for this content?

If your answers to those questions are about where and how you improve the quality, distribution and uptake of that content then you’re on the right lines.

If your answers to those questions are about how people have to come through you to distribute their content, how they are legally required to use your services to access the content or how only you can provide this content, then you’re a sitting duck.

* Some good news travels fast****

** Thinking of the 2011 London riots, it’s interesting how little user-generated video footage there is that is really watchable, mostly because camera-phones still don’t operate well in low-light. This is also an opportunity.

*** Don’t rest on your laurels though, taking the London riots example again, a number of twitter users started to independently validate and curate tweets about the riots and built up a stream of trustworthy sources for tracking the activity. These sources ranged from established journalists to a chap who just got on his bike and went to look at any alleged riot areas.

**** Sorry Doncaster, you know I don’t mean it.****

***** Actually I do.

Cycling, Music and Design (well, poking a bit of fun at fashion)

I think this video just about sums up all the key areas of this blog. And it has lots of swearing in it, which is always funny: http://www.youtube.com/watch?v=hgCqz3l33kU
[EDIT - updated with embed]