Back in 1995 my brother wrote his MA dissertation on copyright: Of Cows and Calves: An Analysis of Copyright and Authorship (with Implications for Future Developments in Communications Media) or How I Learned To Stop Worrying and Love Home-Taping. It is interesting how relevant it remains today, especially in the light of the Hargreaves Report delivered to the government in May. Essentially, nothing much has changed in the intervening 16 years. My brother reflected the predictions of the profound changes that digital technologies would make – and were already making – to the creative industries. Although details such as the excitement over ISDN lines and no mention of mobile technologies date his work, the core issues he covers – who owns and idea and who should get paid for it – remain remarkably current.

I’ve written a brief overview of the Hargreaves Report for Information Today, Europe. The two aspects of most interest to me are the proposals for a Digital Copyright Exchange and for handling of orphan works.

Ideas as objects

My brother argues that creative works are all part of an ongoing cultural dialogue that no one individual can really “own” and that copyright only made sense for the short period of time where technology reified ideas as artefacts that could be traded as commodities (like potatoes or coal). The business model of “content” as “physical item” started to fail with the invention of the printing press, as the process of copying ceased to be a creative act, so each individual copy was not a “new” work in its own right. Copyright law was developed to commodify the “idea” within a book, not the physical book and was enforceable for only as long as access to the copying technologies – printing presses – could be limited. The digital age has made control of the copying process impossible, as the computer replaced the printing press, so one could exist on every desk, and now, thanks to mobile technology, in every pocket. He notes that in pre-literate societies, authorship of a myth or a folklore was not important, and I find it interesting that crowd sourcing (e.g. Wikipedia, citizen journalism) has in some ways returned us to the notion of a culturally held store of knowledge contributed and curated by volunteers, rather than by paid professionals.

Music is not the only art

Many of the discussions of free v. paid for content seem to run to extremes, and seem to be coloured by the popular music industry’s taste for excess. The music industry inflated commodity prices far beyond what consumers were willing to pay just as cheap copying technologies became widely available, making the pirates feel morally justified. It is hard to feel sympathy for people living a millionaire rockstar lifestyle. The inevitable increase in piracy was met not by lower prices, but by the industry issuing alarmist statements about home taping killing music. It didn’t! Music industry profits have risen steadily. The industry has simply turned its attention to charging more for merchandise and live events. The lesson to be learned is that people are willing to pay for experiences, services, and commodities that they perceive as being worth the price and better than the alternatives. Most music fans would rather pay for an easy, virus-free reliable download service than deal with illegal download sites, just as back in the 1980s sticking a microphone in front of the radio to record the charts wasn’t as good as buying the vinyl. The effects on the reference publishing industry were very different, affecting many small businesses and people on far less than rockstar wages, but most displaced people found ways to transfer their skills to numerous new areas of work – obvious examples are content strategy or user experience design – that simply didn’t exist in the 1990s.

It has become a bit of a cliche that there aren’t any business models that work, or have been shown to work, in the new digital economy, but are things really so different? In order to have a business somebody somewhere has to be persuaded to pay for something. Everything else is just a complication. If your free content is supported by advertising, it just means that someone needs to be persuaded to pay for the advertised product, instead of the free bit that appears on the way. Similarly, “freemium” is really just old-style free samples and loss leaders. You can’t have the “free” bit without paying for the “premium”. The two key questions for producers remains, as they have always been, how do you produce content that is so useful, entertaining, or attractive that people are willing to pay for it, and how do you deliver it in ways that make the buying process as easy as possible?

Hargreaves suggests a light touch towards enforcement of rights and anti-piracy, firmly supporting the view that if content and services are good enough, people will pay, and that education about why artists have a right to be paid for their work is as important as catching the pirates. Attempting to “lock” copies with Digital Rights Management systems certainly don’t seem to have been very successful. They are expensive to implement, unpopular, and pirates always manage to hack them. Watermarking doesn’t attempt to prevent copying but does help prove origin if a breach is discovered. Piracy is less of a worry for business-to-business trade, as most legitimate businesses want to be sure they have the correct rights and licences for content they use, rather than face embarrassing and expensive lawsuits, and a simplified, secure Digital Copyright Exchange would presumably be in their interests.

Digital Copyright Exchange

Hargreaves proposes the Digital Copyright Exchange as a mechanism to make the buying and selling of rights far easier. At the moment, piracy can be a temptation because of the time and effort required to attempt to purchase rights. Collections agencies and the law form layers of bureaucracy that hamper start-ups from developing new products and simply confuse ordinary users. This represents real lost revenue to the content providers.

Metadata analyst and music fan Sam Kuper suggested an interesting proposal for setting fair prices – that artists should put a “reserve price” on their work, with an initial fee for purchasers. Once the “reserve price” has been reached, any subsequent purchase is shared between the artist and the early purchasers. This would guarantee a level of income for artists, allow keen fans to get hold of new material quickly, and allow those less sure to wait to see if the price drops before purchase. Such a system sounds complex, but could work through some kind of centralised system, so that “returns” to early purchasers would be returned as credits to their accounts.

From an archive point of view, Hargreaves’s call to allow the digitisation and release of orphan works without endless detective work in trying to trace origins would be a huge boon.

So, there is much to think about in the Hargreaves report and some very sensible practical suggestions, but much detail to be worked out as well. I wonder if in another 16 years, my brother and I will have seen any real change or will we still be going through the same debate?