potlatch

copyright and the state

There are a few interesting rumblings going on regarding copyright in sound recordings at the moment, with term extension being debated in Europe and signs that Britain might be willing to extend term to 95 years. This is an emotive issue for many people, probably because it's simple enough for people to forge battle lines around the topic. Drugs patenting and the intricacies of university-business knowledge transfer don't quite rally the troops on either side.

We know well that the arguments in favour of term extension in sound recordings are entirely bogus. It's EMI going into battle behind the lovable image of the 123 year old trumpeter who's about to lose his Cliff-Richard-based 'pension'. It's the Wizard of Oz in reverse - look behind the frail old man and you find the complex machinations of a failing bureaucracy.

I wonder too if those on the other side of the argument, represented by the Open Rights Group, are also a little inconsistent in their politics. Defending the public domain is all very well, but may be increasingly incompatible with defending the public sphere. ORG tend to be opposed to alternative ways of funding media content, such as Phorm, which is admirable. But this only means that paying for stuff becomes more important for upholding our 'digital rights', not less. Not that this should mean subsidising the creative industries through mercantilist policies such as term extension, on the other hand.

I wrote this paper a few years ago to try and understand the nature of the dilemma, and came up with this table, attempting to define four different fields of the 'public sphere' broadly understood.

The two pillars in grey are those where there are (legitimate) opportunities for commercialisation of knowledge. That is, we don't in principle want to restrict access to public deliberation or heritage through any form of payment. Whether that happens in practice is another matter.

My argument is that the digital age destroys these boundaries technologically, because all four genres of communication can occur via the same media. Therefore they are only left standing as cultural, normative and legal distinctions. Only if the state and/or consumers enforce something called 'content' can it remain distinct from, say, 'heritage'. The main economic battle then goes on between the two central pillars, most notably between google and nearly every 'content' industry. The BBC is also an interesting phenomenon, as it straddles all four pillars - great for the public, but not always great for those minions operating in one of the four pillars.

The interesting question is how these battles will be affected by the economic crisis. I think Jeff Jarvis's increasingly irritating question 'what would Google do?' is not all that helpful (what Google would do is slap a Google logo over all four fields of the public sphere, and beyond). Telling the car industry to become more like Google will not help Detroit sleep easier at night. 

It seems logical that a crisis speeds up trends that were latent in the economy already. The rise of the 'service' pillar of public commodification and the decline of the 'content' pillar have been going on for a decade. In and following the crisis, there will be greater appetite for 'free' stuff, that has advertising, product placement and consumer tracking involved, as this Prospect piece predicts. This is not dissimilar to how the 'Long Depression' of 1873-90 ushered in a new capitalism, with large German and American industrial conglomerates, employing steel, electricity and chemicals, leaving British cottage industries behind. Google is Siemens, while EMI is the Manchester cotton mill. Exciting, yes, but no reason to ask 'what would Siemens do?' at every turn. 

I'm more interested in what the conservative responses to this are. What do you defend? Copyright law, and these strange new forms of broadband tax being proposed, offers the state the chance to protect the 'creative' industries. In time, perhaps we will start to view content production as something akin to 'heritage', which the state protects and subsidises because it is that important to our culture (how's that for 'Digital Britain'?). So if Andy Burnham were brave enough, he would have to stand up and say that he believes that Cliff Richard is on a par with Elgar. The more realistic perspective is that the state is simply doing what state's always do in times of crisis, and trying to protect its friends against market forces. Yes, its protectionist, unfair, mercantilist, but it's not for the first time or the last.

But how might industrial-knowledge models develop/survive which are neither pig-headedly state-protected nor built on the commodification of 'free' (consumer-tracking, advertising etc)? That to me is the highest priority. I have a curmudgeonly hunch that, for those of us committed to financially viable, culturally unpolluted artefacts and events in the future, we may have to side-step both the state and Google and simply pay a fair price for stuff.

when 'stealing' isn't stealing

When the content industries started describing piracy as 'theft', it was quite clear what interests they had in doing so. By falsely equating quasi-public goods (such as online music) with finite forms of property (such as CDs), they were performing an Orwellian trick aimed at ramping up the social unacceptability of a practice that they believed harmed their bottom line.

When John Reid says "it is unfair that foreigners come to this country illegitimately and steal our benefits, steal our services like the NHS" what precise benefit is he hoping to extract, given that once these activities start to become represented as 'theft', it is him who will cop even more flack when they continue, as they inevitably will?

my new report on intellectual property

The concluding report of the ippr's intellectual property report is published today, and I'm a co-author. You can download a pdf here.  One of its recommendations, of a private right to copy, has led to a good deal of press interest, mostly in yesterday's papers, but also in today's Guardian.

Update: the powers that be  have taken the decision not to give this report away for free as a pdf, which is ill-judged in my view, given the subject matter. But if you want to download a pdf, there's a link to it in this BBC article.

more guff from the music industry

I noticed in yesterday's paper that the music industry has taken its political demands to a new level of deluded self-importance: it is asking the government to introduce an 'A&R tax credit', to mimick the R&D  tax credits that companies are eligible for in the UK. The argument runs that the time and money spent by EMI on trying to 'find the next Coldplay' is of such strategic and economic importance to the UK economy, that they should receive tax relief on it. This is even sillier than the demand for a 'value recognition right' issued earlier in the summer  (for anyone who missed it, this was roughly analogous to Nescafe demanding a share of the revenue from mug production, on the basis that mug manufacturers were unfairly benefitting from people's emjoyment of coffee), not to mention the old term extension chestnut.

One would hope that the government would take the view that 'I want never gets' - I don't remember a massive lobbying campaign leading to the R&D tax credit - but perhaps EMI and co are trying a lobbying version of Goebbels's Big Lie theory, seeking out policy suggestions that are so silly that people start to wonder if there might actually be something in them. For the record, there are at least three reasons why this demand is based on a false analogy:

- R&D is a process of invention, whereas A&R is a process of discovery: the process of invention produces various accidental benefits (or economic externalities) along the way, and does not proceed in a linear fashion. It involves developing collective intellectual capabilities in a cumulative fashion, to be drawn on over very long time horizons, potentially decades. Given the potential for these benefits to leak out to competitors, and the time horizons involved, there is a potential market failure in R&D, and companies are likely to invest in it to a suboptimal degree. None of this is true when it comes to 'finding the next Coldplay'.

- A&R could potentially disappear within a decade: leaving aside the question of whether open source dstributed research methods are 'better' than centralised, closed ones, one thing which is undeniable is that music listeners take some degree of enjoyment in the process of finding new music. They are also likely to have a pretty expert understanding of their own tastes. Equally, bands have a strong desire to 'be found', and don't necessarily rely on A&R men to do this - live music and the internet perform a rival function. Bands are not North Sea Oil; they don't sit there waiting for some intrepid EMI exec to come and dig them up at huge cost, but actively tout themselves at the listening public. Should people get bored of having the 'next Coldplay' found for them, this inter-relationship between consumer and musician could cut out the middle men of A&R altogether.

By contrast, air passengers are neither qualified nor eagre to start designing the planes they fly in, and nor are patients likely to become responsible for the medicines they depend on. Give or take the odd rumour about mountain bikes being designed by cyclists, expert, centralised R&D is therefore far less dispensable to society.

- They've totally missed the point about tax credits: a tax credit exists in order to incentivise an activity that is currently happening to an insufficient extent, such as paid work on the part of parents, or R&D on the part of companies. Hilariously, the music people have misunderstood this: "In its response to the Government's Creative Economy Programme, the BPI - the record industry's trade body - argues that the music sector spends a bigger proportion of its annual turnover on R&D than the aerospace, motoring and defence sectors put together." Woops!

I'm not an economic historian, but I imagine that if one looked back over the past hundred years of industrial policy, any industry whose political requests become this divorced from reality is in the autumn of its life...

What would John Rawls make of digital rights management?

After my previous post's brief foray into the world of open source research methods (aka stealing other people's ideas and intellectual authority), here's another one.

I'm wondering whether John Rawl's 'maxi-min' principle can be adapted to underpin an ethical information policy, and a morally coherent intellectual property policy in particular. It might look like this:

Society should tolerate only so much closure around information as to maximise the access of the person who is most excluded.

Two things to note. Firstly, this would not, of course, give a policy-maker much of clue as to how to change the IP regime, any more than Rawls offered a blueprint for fiscal policy. But Rawls did help prop up an existing liberal agenda that was beginning to fall to pieces. And so, just as he managed to justify the existence of the welfare state as it then was, adapting  his formula could perhaps do the same for the public domain that we currently have. This is a conservative move, but perhaps a necessary one: it helps us to recognise the moral worth of existing institutions (libraries, say), so as to prevent future attacks on them.

Secondly, and related to this ambiguity, this formula wouldn't necessarily lead to a more open information policy, any more than Rawls's maxi-min principle necessarily advocates greater redistribution. New Labour's trickle down economic approach is arguably consistent with Rawls (in that nobody has got economically worse off under New Labour in real terms), and arguably IP and DRM contribute to the creation of a rich public sphere, even if they don't support rich public domain.

Is this useful and/or meaningful?

for and against intellectual property

My current piece in Computing magazine draws out a few ideas from my recent ippr paper, arguing that the moral case for intellectual property protection is generally under-stated, while the economic case generally over-stated. With open access projects, the opposite is the case.

My new paper

I've got a new paper out today, 'Markets in the Online Public Sphere', published by ippr (and free to download). It looks at the politics and economics of online information, and suggests that we've lost sight of how diverse the public sphere is, and how it contains different types of information exchange which ought to be able to co-exist. Policy-makers find themselves having to take sides in some of the rows that develop, which tends to mean backing certain business interests, but this needn't be there only option. It's also been covered today in The Register.

I'd be very interested to hear any thoughts on this. If there are any, please post them on the IP project weblog.

mimickry and intellectual property

I was reading The Location of Culture by Homi Bhabha this week, and in particular a chunk on mimickry and colonialism. Bhabha looks at the encouragement of mimickry as the way in which colonial powers export their practises to foreign cultures, such that they become almost-but-not-quite the same as the occupying power. They can mimick the occupier in dress, language and rituals, but only in an ironic somewhat ridiculous fashion; they are never granted the opportunity to become entirely identical with the coloniser, to the point of actual self-government. This strategy is born partly out of narcissism on the part of the colonial power, but also paranoia that the occupied culture might become sufficiently equipped in the techniques of its occupier as to become empowered and dangerous. Mimickry is then an ambiguous practise, that lies somewhere between identity and difference, neither complete independence nor complete subjugation. Which, I wonder, might potentially have interesting implications for how we think about intellectual property...

Western economies, and the US in particular, worked hard at exporting various aspects of capitalism over the second half of the twentieth century. The Marshall Plan included the introduction of Fordist management techniques into Western Europe, and the German and Japanese economies were purposefully built up, partly to protect them from communism, but also in order to generate a larger market for US goods. The template of capitalism had to be standardised, which required weaker countries to adopt certain habits. They were encouraged to borrow techniques and models from the Americans... yet only up to a point.

When the US economy started to struggle in the 70s, and the Japanese and the Germans began to overtake it in areas such as car production, there was suddenly far less value for the Americans in exporting their 'template'. The Japanese and Germans had gone from being willing students to threatening competitors, and the limits of mimickry had to be identified and imposed. In a less straight forward way, China would now be another example, although with the added fear factor that they were never deliberately trained in the ways of capitalism by the US, but borrowed the various bits that might be of value to them.

Perhaps intellectual property regulations can be understood as techniques for policing the distinction between those practises which can be safely exported (the Fordist corporate model; dollars as the currency of last resort; English; software standards) from those practises which may not be copied (distribution of content; developing software code; key scientific innovations). IP law stipulates that ‘you may copy our behaviour in all respects except these ones’. In Bhabha’s terms, powerful Western economies seek mimickry from emerging Eastern economies, which is both narcissistic and paranoid: they want competitors which look like them, but aren't actually as able as them, just as former colonial powers would dress their staff in smart western uniforms.

And anyone wanting an example, check this out: a European Parliament report poses the shocking hypothesis that the Chinese may one day be able to innovate, and not just produce!

Creative industries article

As part of our project on intellectual property, I've got a comment piece in today's Computing, to coincide with the government's Creative Economy conference. It argues...

The challenge is to focus on practical, productive activities first and foremost, while keeping alive the importance of policing existing IP rights. For instance, a host of new and more efficient publishing models are emerging that exploit the internet without imperilling the moral and financial rights of creators. Governments should recognise that these are precisely what the knowledge economy is all about, and nurture them.

A more forward-looking model of media literacy could also be developed. In the UK, the communications regulator, Ofcom, is responsible for the promotion of media
literacy to help individuals confidently consume and create in a digital age. This is a noble ambition that should be treated as a serious policy programme, but when it comes to IP, the agenda suddenly turns matronly. ‘Do not download illegally’ it admonishes. And so children are taught what they are not allowed to do, but this should be secondary to what they are empowered to do.

BBC property...

A much-linked-to piece by Cory Doctorow throws praise upon the BBC for its imagination and risk-taking in the realm of new media. As much as I share his enthusiasm, and admire BBC new media tremendously, the article almost entirely misses the elephant on the table, until it concludes:

The greatest irony here is that it takes a publicly-funded broadcaster from a cozy liberal democracy to teach America's lumbering, anti-competitive Hollywood dinosaurs what a real, competitive offering looks like.

That isn't an irony, it's the whole bloody point! I may be a policy wonk who is still struggling to throw off remnants of dialectical materialism, but I can't see how any sensible analysis of intellectual property can ignore funding structures and risk distribution. The BBC is funded by a license fee, and risk is carried by the public. If the BBC makes a  turkey, we suffer because it was our money that some bloke in square glasses chucked at some home improvement nonsense (for instance), and if the BBC makes enough turkeys, then the Creative Archive will be a turkey sanctuary. Fortunately for us, this isn't what happens.

There is of course an irony that the public finance model enables a higher degree of risk-taking than the private sector is able to, given that public sector employees are constantly denigrated by management experts for being psychologically risk averse. But this is not so much to do with the people that the BBC employs, as innovative as they may be. It is because of its public finance model, not inspite of it. The license fee is effectively a form of risk capital put forward by the British public, for which no return on investment is sought (unless you count public value). The private sector is not only incapable of matching the scale of this upfront investment, it is incapable of making any investment for which there is no return.

Cory's argument reminds me of seeing Malcolm Gladwell at the ICA recently, talking about his silly new book. Gladwell was disowning his work, saying that as soon as he writes something it's no longer his, and belongs to the public. This is all very well (given that he's not a nazi, for instance, in which case I would want to make damn sure that the ideas were still his, and remind him of it), but he is in a situation where a publisher will give him a pretty stonking advance. I am not suggesting that Creative Commons is a rich man's toy, only that financial risk always gets carried somewhere; it doesn't disappear into thin air simply by ignoring it.