Tuesday, 29 May 2012

IPR: The Cost of Copyright

I've been going mad emailing my representatives lately because of the massive threat posed by the upward ratcheting of intellectual property rights (IPR) laws. The fact is, the conflation of trademarks, copyrights and patents creates a great deal of confusion (it's supposed to!), particularly when you add the proprietary dimension. You'd think that such a system provides a bulletproof income stream and control system for the rightsholders, but actually, if you take a look beneath the surface, it doesn't.

The threat

I've covered the threat to our digital rights and personal freedoms often enough, but the threat to the legacy industries hasn't had as much coverage from my end, mostly because I haven't got much sympathy for them, to be honest. However, it's only fair to give it a mention, so here we are: upward ratcheting of copyright doesn't just cause stagnation and inflexibility, it actually catches the people it's supposed to protect in its net. It's basically a a minefield that only hurts the enemy until the rightsholders go for a stroll in it themselves.

German politician Siegfried Kauder fell foul of his own pro-copyright "two-strikes and you're cut off law" when he was caught using at least two photos on his website which were taken from a photo sharing site without permission. He's not the only one. Think of any big name pro-copyright figure and believe me, they've been at it too. We're just waiting for French copyright agency HADOPI to violate copyright for the third time so they can have their own internet connection cut off, as Techdirt gleefully reports:

The governmental body that oversees France's "three-strikes" law, HADOPI, has already been caught once infringing on the copyright of others -- by using a logo designed with unlicensed fonts. Now it's been spotted using photographs without respecting the so-called "moral rights" of the photographer, which include the right to attribution (French original), absent on HADOPI's site. Such moral rights are taken very seriously in France, where they are automatic, perpetual and cannot be waived (unlike in some other jurisdictions, such as the United Kingdom.)

This is the problem when you set a trap: chances are, sooner or later you'll fall into it yourself. And you know what? All this harshness hasn't stopped file-sharing, nor has it increased sales. It's a total waste of time.


Did you see that gross-out Time cover image of a four-year-old boy who is still being breastfed? It's called "on-demand parenting," in which the child sets the pace and the parents indulge his every whim. It's not healthy (can't wait for the trolls to come pouring in from all angles to denounce me as heartless!) because he isn't learning to control himself or the meaning of the word "no." Well copyrights harm the legacy industries by making them dependent on licensing revenues and the variations on the content items. They actually can't conceive of a world in which they no longer have the same level of control, and they kick and scream at the thought of losing it. The language they use to justify the protections they demand is always that of the victim, even though their claims are hard to verify and usually defy established facts.


Copyright monopolies actually stops the legacy content producers (think Disney, Warner Bros, et al) being original because they don't need to be: they can simply knock out sequels or variations ad infinitum. Director's cut, anyone? Special edition? Spinoffs? Games? So that advances the arts, does it? Gimme a break!

Have you noticed that whenever there's a danger that Mickey Mouse might end up in the public domain, Disney goes nuts and works for an extension to copyright terms? They claim that copyright extension encourages progress in the arts by forcing creatives to produce new original works instead of reusing old work. That's rich coming from a company that raids the public domain for material for its films! And the animated ones. Think of all your favourite Disney cartoons. Not one of the feature films is completely original. They all have some elements of other people's work in them.


Let's talk about the moolah. Wonga. Dosh. It's not about the cabbage, green, or bread. It's about control. In an earlier blog post called "IPR: Does Exclusivity Have Value?" I exposed the circluar logic and closed thinking that goes with a state-sponsored monopoly. HBO's vertical integration and (perceived) total ownership of its brand is enabled because they're not being made to compete in an open market. They're being allowed to manipulate and control the market and aren't obliged to respond to their customers like other companies. They can't relate to us because they don't have to.

If they suddenly had to fight their own battles instead of being permitted to call file-sharers "pirates" and "thieves" they would have capitulated to market demand ages ago and there wouldn't be a bling-encrusted golden castle that you have to sign up for in order to experience their content legally. There might be a bling-encrusted palace that you can opt to go to in order to experience the content at a higher level but the bargain basement experience is only available via unauthorized distributors. The fact is, people are willing to pay but the content producers aren't willing to sell unless you're willing to pay for the entire package — which a lot of people simply don't want. HBO is only able to do this because they're not subject to the market. We're subject to laws enacted to benefit them.

They can't and won't work to establish new business models because they're not obliged to compete in a fair and open market based on the merit of their products.


Our great and glorious leaders are so sold on the idea that the state-sponsored monopolies provided by IPR laws and their expansion and ever harsher enforcement stimulate job and economic growth that it never occurs to them to question this assumption.

First of all, I have already demonstrated the fallacy that IPR enforcement benefits the industries it allegedly protects. It doesn't. It also doesn't protect their revenues because it's not about protecting their revenues. It's about controlling the market and experience of their products. If it was about the money they would go where the money is, and embark on revenue-sharing deals with internet distributors or create their own value-added distribution channels. But they don't and won't because they're not obliged to. And in those instances in which they do create their own value-added distribution channels, their control freakery drives their customers into the arms of the unauthorized distributors because people don't like DRM and don't want to have to choose between waiting for a year for the DVD or paying for a package deal they don't want.

So what about the much-vaunted job and economic growth, then? It's in the registration, enforcement and surveillance industries. Have you noticed that the wording of any document about the job and economic growth is non-specific? That's why. I fail to see how this is supposed to benefit the economy when our governments are using our tax monies to fight these peoples' battles for them. Let them fight their own!

I'm not going to stop hammering this point home until I can get through to our thick politicians (Francis Maude and David Davies are exempt from this assessment) the message that their efforts to save us by enabling IPR trolling is like using a sieve to bail out Titanic.

Enforcement theatre

Remember those cases where the police arrested any old bod for heinous crimes just to be seen to be doing something? That's what enforcement theatre is. It's not about being effective. The laws brought in to defend the content-producing Penelope Pitstops from the file-sharing Hooded Claws aren't even workable. They're just there. Anti-piracy graded response laws in the UK and the US are not being enforced yet because getting the ISPs' systems aren't ready yet to go hunting for peer-to-peer file-sharers. This is because IP numbers are not a reliable way to find people. My own IP number often "places" me in Stoke on Trent. I live in Manchester, fifty miles away! Now can you see what the problem is?

Setting up a global cyber surveillance program to defend these monopolies is as unreasonable as levying a tax to pay them. Mind you, being more honest about it would sweeten the pill. As it is, the upward ratcheting is now being moved towards advertising. Yes indeed, it is now considered to be copyright violation to skip past the ads.

Meanwhile, our governments have hit upon the novel idea of website blocking. It doesn't work. A decent VPN will get you around it. Shutting websites down? They'll spring up again under another name. You can't kill an idea. And you certainly can't control it. Let go! And let go of the idea that IPR enforcement is the only way to earn money in a digital environment. No it's not.

The way forward

I recently got involved in an online incident where a chap had grabbed a piece of music by Preston Reed called Tractor Pull and tried to pass it off as a legitimate cover after renaming it. The fact that he hadn't credited Preston properly was half the problem. It was the renaming that annoyed Preston. I urged him to confront the infringer for plagiarism and promised to back him up. One internet mob of great justice later (five of us piled in to the YouTube page to complain and ask the infringer to remove the video on the basis of plagiarism), the offending video was down.

Preston's manager and I discussed how to make money from music sans copyright royalties and we came up with a few ideas, one of which was to promote his website as a means of buying Preston's work. I made other suggestions such as a "buy me a coffee" button but he hasn't got around to that yet. The point is, you don't have to rely on enforcing IPR via the legal system. Preston and a few friends sorted out an infringer without going to law by simply confronting him until he took the video down.

The ways of earning a living in an environment where copying is easier than ever are as varied as the tunes Preston plays on his guitar. The point is, if copying is a threat to your business, you're in the wrong business. The answer is to leverage the copying and use it to advertise yourself and your products. It works for HBO (whether they like it or not!) and it worked for The Avengers, so it can certainly work for you.

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