That's my game
13 MAY 2008 – For most people, the word ‘copyright’ is intimately associated with the entertainment industry whose professionals are always looking for ways to protect and, where possible, exploit their rights in books, TV shows, music and movies. Indeed, for anti-IP campaigners ‘Big Media’ has become something of a bogeyman in recent years.

But what about this? In Europe at least, ‘Big Media’ appears to be in direct conflict with ‘Big Sport’ over the latter’s IP ambitions.

‘Big Sport’ (for want of a better term) generates big money which, in turn and inevitably, generates a desire to protect those huge income streams. Consequently, ‘Big Sport’ has been intensively lobbying the European Parliament for new laws to which would extend IP protection to cover every aspect of modern sport from club kit designs and logos to names and media rights. The incentives are obvious. The more ‘Big Sport’ can control its interface with the public, the more profit it can generate.

However, the European Parliament has declined to give them everything they want, at least for the moment. I am sure it will come as good news to all those people who think that sportsmen in general, and footballers in particular, are already vastly overpaid. Instead, they made a rather pointed recommendation to both the Commission and member states to strengthen IP laws in respect of things like club logos, brand names and media communications. The stated reason for refusing to go further was a concern that too much IP power in the hands of ‘Big Sport’ might impinge on press freedom. So who’s the bogeyman now?

But, as per usual, I rather think that this is far from the end of the matter. The lobbying will continue at both European and national level where the stakes make the struggle worthwhile (and I thinking here in particular about the hugely globally-popular English Premier League).

How funny to think that the media may, for once, find itself lobbying against more IP laws.
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The never-ending session
08 MAY 2008 – Hot on the heels of the European Union pledge to increase the performance copyright protection period to 95 years, comes a new proposal from EU Commissioner Charlie McCreevy to set up a special fund to pay royalties to session musicians. The fund would be paid for by the money raised from the copyright extension.

Session musicians are the ‘hired hands’ of the music industry. They are often highly respected within the industry but are seldom known or heard of outside of it. They turn up at the recording sessions of the music stars, play their instruments, charge their fee and go home again.

However, could that now change as a result of Mr. McCreevy’s proposals? It occurs to me that it could represent a very major change in the current business model of the recording industry.

For example, there may be some session musicians willing to forego their fee (or accept a lower fee) in return for a larger share of the royalties. This would result in lower production costs and make it easier for struggling or lesser-known artists to get their music made and distributed. But, in turn, that would mean that the session musicians would have to carefully judge which songs were likely to be hits in order to make their return. In effect, they become investors in the product. So, will working with royalties make session musicians more entrepreneurial?

Well, perhaps but I must admit that I am probably reaching a bit here. After all, the royalty proposal is, at this stage, just a proposal and I should think that quite a lot has to be done before it becomes a reality. Secondly, even if it does become a reality, session players may still elect to take both fees and royalty. I suppose I would.

But speculation over the future shape of business models is fun and I just could not resist the temptation to take a run at this one.
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Put that guillotine down, Monseiur
05 MAY 2008 – Regular readers of this blog may recall that, at the end of last year, I wrote an article about the French proposal to tackle illegal file-sharers by means of cutting off their internet access. I said then that, if the method appears to work, then it could catch on elsewhere. Certainly it is an idea which has been enthusiastically taken up (not surprisingly) by music industry organisations such as the International Federation of the Phonographic Industry.

My tentative predictions were borne out rather more quickly than even I had anticipated with the UK government, among others, seemingly picking up the idea and seriously toying with it. However, plans for similar measures here were somewhat setback by resistance from the net industry which refused (rightly in my opinion) the policing role.

Now the ‘guillotine’ movement (for want of a better term) has been dealt another blow, this time by the European Parliament which has – only narrowly, mind you – voted against the proposal of a implementing this measure Europe-wide.

But this does not mean that the idea is dead in the water. Far from it. The European Parliament vote does not have force of law, which means that the various national governments now have it within their gift to legislate for it domestically. However, this ‘no’ vote does have the effect of knocking some of the moral impetus out of the idea. This is not to say that it won’t spread, but I do think it makes the spreading more of an uphill task.

I don’t think that the French government will be deterred and I also think that the music industry will lobby intensively to keep the idea afloat in the UK as well. Other countries may or may not follow suit. But, and overall, I think that the music industry will not get the kind of global, universal approach they want with this idea and, even in countries that do implement the ‘guillotine law’, it still remains to be seen as to whether or not it actually works.

The war drags on.
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Intelligent use of fair use?
28 APR 2008 – Imagine there was no such thing as intellectual property? Yes, I realise that there are a whole load of people who not only imagine such a thing but actively desire it too. However, until such time as they get their way, the rest of us can be entertained by this kind of thing.

Yoko Ono is suing a company called ’Premise Media’ who have made a documentary called ‘No intelligence allowed’ wherein they question Darwinian theories of evolution. The problem has been caused by the film-maker’s use of the famous John Lennon song ‘Imagine’ in the soundtrack of the film. Ms. Ono claims that this is copyright infringement and Premise Media, in turn, claim protection under the doctrine of ‘Fair Use’ (they having employed no more than an excerpt from the song, apparently).

Now the difficulty with the ‘Fair Use’ doctrine is that it is very difficult to define what actually constitutes ‘fair’. It all depends on circumstances and must, therefore, be judged on a case-by-case basis. So, who can say in advance how this one will turn out?

For my part, I am pleased to see that the ‘Fair Use’ doctrine is still alive and well in the USA. Contrast this with the UK where the principle has been circumscribed into near-extinction (insensibly in my view) by the Copyright, Designs and Patents Act 1988 and subsequent amendments.

Of course, I have no idea as to whether Ms. Ono’s claim will be vindicated by the courts. But I do suspect that there may be a political subtext here. After all, John Lennon implored his listeners to “imagine no religion” and, while the film-makers may not exactly be religious-types themselves, the whole idea of ‘intelligent design’ is much more borne of religious philosophy than scientific inquiry.

I am looking forward to seeing how this one turns out. But I am not expecting any divine interventions.
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Don't go to jail
23 APR 2008 – One could be forgiven for forming the impression that the European Parliament has set itself up as the champion of the file-sharer. Only last week, it rejected calls for a ‘guillotine’ law that would lead to persistent illegal file-sharers having their internet access cut off. Now they have come out against the idea of file-sharers facing criminal sanctions. Well, as long as they don’t do it for profit.

The move comes shortly after the ‘IP crime Directive’ which was enacted last year and seeks to impose criminal penalties on illegal file-sharers (to add to the civil penalties they may face).

Supporters of the IP crime Directive insist that criminal sanctions would only be employed against persistent, industrial offenders, i.e. criminal gangs looking to make profits from copyright theft, as opposed to the solitary, doing-it-for-fun consumers who just want to listen to music.

So how does the latest European Parliament announcement make any difference? It seems, on the face of things at least, that everyone is agreed that only the professional, organised copyright thieves should be punished. The various factions just appear to have come to this conclusion from different directions.

But, as is often the case, perceptions are more important that the actuality. By taking the stand they have, the European Parliament members have sent out a pretty clear message that they do want the net to flow in Europe. That is the real concern behind the criminalisation of file-sharing; not that some serious counterfeit gangs face justice (they should) but that, in the process of pursuing them and shutting them down, a whole lot of other people are simply intimidated off of the net.

This has been, and may still yet be, a long and winding road but I think I can see some signs that a broad consensus is emerging as to where the lines of legitimacy should be drawn.
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It's not whether it's David versus Goliath - it's whether David and Goliath had a deal
14 APR 2008 – "It's a David and Goliath battle", it says under the headline to this story, which is about how George Lucas (Goliath) is suing Andrew Ainsworth (David) for some gargantuan sum of money for making more Star Wars costumes that George Lucas originally had in mind to be getting from this guy.

I first encountered Ainsworth in the form of his display window in Twickenham, which I photographed last July, because it looked fun, and strange. Star Warriors in Twickenham? How odd. Well, not really, because Twickenham is one of the centres of the British film and TV industry. But it seemed to me odd at the time. The point is, these are no cheap knock-offs, these are the real things, made by the guy who made the original things themselves.

This "David and Goliath" vibe, which you constantly encounter in stories about IP quarrels, illustrates one problem with IP law, which is that a lot of people side with David against Goliath on principle, simply because David is David and Goliath is Goliath, and regardless of any other considerations of rightness or wrongness. That, I think, is the wrong way to think about such disputes.

But the right way, surely is to see this as a dispute about a contract. The problem in this dispute is that there was no original contract, of the sort anybody wrote out, haggled about, and then signed. Presumably neither party had any idea how big the spin-off merchandising aspect of the Star Wars franchise was eventually going to become. At first, all they thought was happening was a bit of costume design.

But now, George Lucas thinks he owns the designs he paid (very little) to have done, but the bloke who did them reckons he owns them. The Californian courts have already decided in George Lucas's favour, and my guess now is that, if I went into the details, I'd end up agreeing with them. The point being that although Lucas paid very little, he did pay. Insofar as considerations of contract do illuminate this matter, they suggest to me an original meeting of minds around the idea that Lucas owned these designs, and that Ainsworth later changed his mind when he realised how much money he could make. But,that's just as guess on my part. I don't know.

But two things I do know. First, as so often with IP disputes, this is indeed best thought of as a contract dispute. And second, it is worst thought of as a David and Goliath battle. Often Goliath is right and David is wrong. Ask any London West End store plagued by shoplifters. London stores are often very big. Shoplifting is done by tiny enterprises by comparison. Yet the London stores are completely right about shoplifters and the shoplifters are completely wrong to be shoplifters. Size has nothing to do with it.
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My own private Leicestershire
07 APR 2008 – What has champagne got in common with the humble British pork pie? Not a lot, you might think. I suppose one could dine on the latter while washing it down with the former but I am told that that is rather uncommon, not to mention unsophisticated.

The actual answer lies in the protected IP status of both. Yes, indeed, the Melton Mowbray Pork Pie has been granted Protected Geographical Status under European Union law. Henceforth, only pork pies produced in the Melton Mowbray region (in the English county of Leicestershire) can be branded as ‘Melton Mowbray Pork Pies’. Of course, sparkling wine produced in the Champagne region of France has enjoyed this status for many years.

So now that the Melton Mowbray pork pie (which is distinguished by its being made with uncured instead of cured pork) enjoys IP protection in Europe, it does remain to be seen what protection it enjoys outside of Europe. While I believe that US law does extend some recognition of the PGS status to products, I am still not sure whether the Melton Mowbray brand could be as easily enforced there. The same applies to, say, Australia or Japan or South Africa or anywhere else that is not subject to European law.

The thing about this PGS status (or the similar Protected Designation of Origin) is that it seems to be entirely a European creature, borne, I think, from the time-honoured Bonapartist tendency towards protectionism. I cannot imagine that such a concept would ever have emerged from the Anglo-Saxon world.

However, that has not stopped this particular group of British producers from taking advantage of it. Doubtless, one needs every advantage one can get in the cut-throat world of pork pie making (no Sweeney Todd jokes, please).
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Daniel_k takes the law into his own hands
04 APR 2008 – My favourite recent intellectual property story concerned Creative Labs:

Creative Labs has enraged customers by threatening a developer with legal action after he wrote drivers that allowed its products to run smoothly on Vista.

Soundcard maker Creative accused the developer, known only as Daniel_k, of theft and warned him not to infringe its intellectual property.

Daniel_k has created a number of drivers which make Creative's soundcards work smoothly on PCs running Windows Vista. He had posted a link to them on a forum on Creative's website and many users had downloaded them.

Without his drivers, users say, Creative's soundcards cause Vista machines to crash or features to fail.

This is despite the fact that Creative markets its sound cards as "Vista-compatible".

But Creative has not taken kindly to Daniel_k's efforts and has accused the developer with breaching its intellectual property.

As a general point, I am entirely in favour of people "taking the law into their own hands". If it's okay for a judge or a policeman to do something to correct an injustice, then it should be okay for a civilian to do it. If it is not okay for a civilian to do it, then neither should it be okay for a judge or a policeman. I am on the side of Daniel_k and all those whom he has helped, and not just from the commonsense point of view, and I don't just think that Creative Labs is making an ass of itself from the merely PR point of view. I think that Daniel_k either is either right in law, or should be. If the law says only that he was stealing intellectual property, then I say that the law is also an ass.

It reminds me of all those arguments that libertarians like me have about civilians defending themselves against criminals by shooting at them with guns, and thereby frightening them away, and perhaps in the process killing them. If the law forbids this, the law is likewise an ass. If you are a robber and somebody kills you, well, you shouldn't have been a robber.

If Creative Labs objects to its intellectual property being stolen, well, they should have made the thing work properly in the first place and not lied about it on the box. As many have already said, they should now be offering Daniel_k a job, not threatening him with lawyers. At the very least they should be thanking him, and publicising his solution to the problem they have created, until such time as they can come up with anything better.
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The rights to Armageddon
04 APR 2008 – Have you thought about building an atomic bomb? If you have, then you have probably got a checklist of things to do, such as obtain the raw materials, a very spacious industrial building space, the necessary engineering skills and a team of physicists. And when your prototype is ready you will need somewhere to test it and that can be a tad difficult to find, especially as you will need to keep the entire operation secret lest your government, or somebody else’s, seeks to put a stop to you.

As if all that wasn’t enough of a disincentive, you may well have to cope with the additional hurdle of patent protection.

No, I am not making this up. It seems that the atom bomb is subject to no less than 2000 patents. To make matters even more forbidding, they are all owned by the US government which (presumably) has no shortage of financial muscle to enforce them.

However, this does give rise to some other possibilities when it comes to dealing with the subject of nuclear non-proliferation, the process whereby big countries with nuclear weapons seek to prevent smaller countries from developing nuclear weapons. Instead of using the current combination of bribes and threats, the US government could just threaten to sue them for patent infringement. That would surely make them think twice.

On the other hand, there is the risk that the bluff will be called and then some sort of court case would have to ensue, during which the US government would have to disclose its patents, thereby leaking these highly sensitive details to the entire world. I suppose that would rather defeat the object.

It’s all a bit too much for me. I think I will ditch my plans to build an atom bomb (not that I ever had any to begin with). Better, I think, to stick to putting up shelves in my study.
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This show will self-destruct in seven days ...
17 MAR 2008 – The BBC dates from an era when broadcasting was easy, if you were as big as the BBC, but in which copying was nearly impossible. Then it became possible, but still very expensive. The BBC consequently has an ignoble history of wiping some of its past glories. What's this? An old episode of Doctor Who? Who's ever going to want to watch that again? We need the tapes to do new stuff. Wipe. Talk about self-destruction.

Now, broadcasting is as easy as ever, aside from the slight problem that so many other organisations are now also doing it, and that there are now so many other distractions to divert people's attention away from the BBC. So, although the BBC gets mass audiences still, they aren't quite as mass as they used to be. But copying stuff and storing it forever, well, that's now a doddle. Everyone can now do that. Which creates both a huge opportunity and a huge problem for the BBC.

The opportunity is that the BBC, as a "public service broadcaster", funded by the "license fee", i.e. a TV tax. This means that the BBC is able to just give its stuff away, and use its generosity as a political argument whenever it is suggested that taxing all of TV to pay for the BBC is wrong, what with it being a tax, and what with only the BBC getting the money. So, give its stuff away the BBC does, on a huge scale.

The problem is that if the BBC gives everything away, forever, to anyone who wants it, both it and the participating artists will be spurning the lucrative income that is to be had from selling stuff on DVD or as paid internet downloads, to people who want to own it. What happens to the "digital rights", not just of the BBC but of the performers in BBC shows? (The same argument is at the root of all the strike turmoil in Hollywood just now. First it was the writers. Now it's the actors.)

The BBC's answer, for now, is DRM, "digital rights management", in other words restricting the copiability of its programmes. If you go to the BBC iPlayer site, you find that you can watch some things (but not all things - not movies for instance) whenever you want, on your computer, but not for as long as you want. You have thirty days to start watching, and then seven more days to finish watching. After that, the file self-destructs. Self-destructing files offends many, including me. It's not in the nature of files to self-destruct. Files stick around forever, or they should. The music industry has simply been told by its customers to dump DRM. But the BBC doesn't have "customers", not exactly.

What the BBC has is voters, and most voters will be satisfied with this iPlayer arrangement, as a more than decent improvement on the BBC's regular service. We fanatics who want files that don't self-destruct are poltiically insignificant in number and we can just record stuff onto a TV hard disc. Or buy the DVD. Or try to hack iPlayer. That will keeps us busy and happy. As always with the BBC it's a canny compromise between economics and politics.
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