Dominic Young

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I’ve been around the news media and the internet since the beginning. I am interested in copyright as the basis for a thriving and balanced creative sector and society. Also interested in how the failure of copyright and other laws has led to terrible outcomes for the internet and everyone who uses it. I’ve done a lot of things around these issues.

  • Disruptors disrupted: NLA victory brings common sense back to copyright

    The NLA won its appeal today. (Disclosure: I was on the board of the NLA when this action began and I am a previous chairman).

    To judge from some of the coverage you would think this is the end of the web as we know it. There is an attempt to portray the ruling as a criminalisation of web browsing and somehow a perverse outcome which sets the internet back.

    I would encourage anyone interested to look a little deeper than those rather dramatic assertions. “End of the world as we know it” always makes a good headline but in this case it’s wildly disingenuous.

    This is an important ruling but actually not particularly controversial. What it says, in effect, is that you can’t copy stuff without permission. In other words it says exactly what copyright law says. The controversy, such as it is, centres around the fact that the company on the other side of the case depends on a different interpretation of copyright law – specifically that its particular use of content doesn’t require permission.

    This may be a common assertion among internet businesses and many others have thrived on the assumption that other people’s content is a free resource available for exploitation. The justification is usually, at its heart, a post-rationalisation. Essentially their argument is that their use of content has to be legal because if it wasn’t they wouldn’t be able to be in business. Which would be terrible because they have a good business and their users like them.

    In this particular case the company in question, Meltwater, decided to take a legally aggressive route when confronted with the NLA’s request that they take a licence. They referred the NLA to the UK’s Copyright Tribunal which in turn caused the NLA to go to the high court for a ruling which was today confirmed on appeal.

    Meltwater may well be rueing the day they decided to do this, because the consequence of their action is that any possible ambiguity about interpretation of the law has been removed. This doesn’t just affect them, it affects anyone else whose web business is founded on a generous interpretation of the law.

    With considerable chutzpah, Meltwater’s CEO has responded to the ruling today by saying “The big takeaway from this ruling is that our position has been made stronger for the upcoming Copyright Tribunal”. He doesn’t say how,  which is perhaps unsurprising since it would appear that their starting position (which can be summarised as “we don’t need a licence, but even if we do our clients don’t”) has not just been completely and wholly undermined but some other issues. such as the copyrightability of headlines, have also been clarified in favour of content owners.

    Meanwhile the PRCA, Meltwater’s partners in this case (and for legal reasons the lead appellant), seem to be trying to say the ruling makes web browsing illegal or generally criminalises web users. “Millions of professionals will unwittingly infringe copyright legislation on a daily basis by simply browsing the web”, according to a scary statement on Paid Content.

    This is, to my mind, clearly nonsensical. Most websites come with explicit or implied permission for people to browse them. What they don’t do is come with any kind of permission to set up a business which relies on copying all the content and selling services based on it to commercial users, nor to ignore requests to stop doing so. Meltwater tried pretty hard to make that case but the original judge and the appeal court both said no.

    Which, in my view, is common sense.

    I was looking at the Meltwater website just now and was struck by how it had changed since i last looked. Last time a phrase stuck in my mind which I couldn’t find anymore. They used to describe themselves thus: “Meltwater Group is a privately held Norwegian company committed to disrupting the status quo through novel technologies…”. It was the commitment to disruption which had stuck in my mind.

    They now take a slightly different tack: “Meltwater is a global Software as a Service (SaaS) company developing disruptive, no-nonsense software…”. Not quite the same emphasis. Perhaps it turns out that disruption cuts both ways.

     

    UPDATE: after posting this I was reading the Meltwater press release about the case again and found one thing a bit confusing having just read the actual judgement.

    The press release says

    “…The Court of Appeal  ruled that it will be very rare that headlines are copyrightable, which is something we’ve been saying from the start,” said Francis Ingham, Chief Executive of the PRCA. “Going back hundreds of years, no court has ever found a title worthy of copyright protection.”

    I didn’t remember seeing this in the judgement, so I thought I could helpfully post the relevant paragraph so you can decide for yourself (emphasis added by me):

    22.In these circumstances, the conclusion of Proudman J in paragraph 71 of her judgment that newspaper headlines are capable of being original literary works is plainly correct; indeed at one stage in his argument counsel for PRCA conceded as much. It was not suggested that she was not entitled to accept the evidence of Mr Bromley as indicated in paragraph 70 of her judgment. In those circumstances the conclusion in the last sentence of paragraph 72 that “some of the headlines are independent literary works..” is, in my view, unassailable. I would reject the submissions of counsel for PRCA on this part of the case.

    Later on, in the conclusion, it says:

    48 …There may be some cases in which neither the headline nor the ‘scrapings’ constitute a copyright work or a substantial part of a copyright work. A licence would not be required in such a case but there cannot be many of them.

    You should read the whole judgement of course. But hard to see how the PRCA’s conclusion that it is “very rare” that headlines are copyrightable can be drawn from the judgement. Or am I missing something?

  • De-googlifying

    This is amusing. Nothing to do with copyright, just amusing. I have had a Gmail account for a long time, and have recently decided to start moving away from it. This is easier said than done, but I have reached the point where most of the mail it gets is from friends. So I put an “out of office” on it to inform people that I would be phasing out the address and asking them to put the new one in their address books. The out of office was entitled “de-googlifying” and contained the phrase “de-googling” a couple of times. I then tested it from my new account, and another email account I have. Neither got the out-of-office, even though it showed up in the gmail sent-items I waited about an hour and then tried changing the wording. “De-googlifying” became “de-g**glifying”, “de-googling” became “de-g**gling”. And the replies turned up instantly. Could it be Google operates a sort of swearbot which censors out-of-office messages about moving away from their services? That Google treats its own name as a swearword? Surely not… Hilarious. Doubtless innocently technical. But a bit sinister.

    UPDATE: OK so they all turned up in the end. A long while later. But the one with asterisks is still quicker.

  • Throwing in the towel

    The Guardian has received much coverage this week for it’s new strategy, to go “digital first” and cut its costs massively.

    There’s no doubt that the Guardian has an enormous amount of cost they can cut before it shows, and perhaps their CEO’s grim warnings about the fatal consequences if they don’t is as much a way of side-stepping the inevitable howls of anguish from unions and staff as it is the true reason for making what others might look on as sensible adjustments.

    But the “digital first” thing is a bit more worrying, to me anyway. The logic is really hard to understand.

    On the one hand, they have a determined policy of keeping their digital product free, because doing otherwise “closes down digital opportunities”.

    On the other hand it doesn’t seem at all clear what these opportunities are. They have recently made a big move to set up an office in the USA, where much of their audience lives, in the hope that they can make that audience more profitable.

    It seems to me like the triumph of hope over experience. You could sum up the whole digital business strategy of virtually every newspaper on the web as having been “build audience now, make money later”.

    Even as the audiences have grown like topsy, the money has lingered far behind. The early, optimistic belief that digital would provide a thick layer of icing on the print cake gave way to hopeful speculation that while the digital audience might not be worth much, nor would it damage print – so it was a form of viral marketing.

    The more current realisation that print is dying (and the Guardian is explicitly planning for, even accelerating, this change) has been greeted by most, privately at least, with an increasingly panicky desperation to find a model that works or – for many – find a new job before their business impodes.

    The curious thing about the Guardian’s position is that while they’re bravely facing up to the realities of their perilous position (Andrew Miller says they have £200m left in their trust fund – which for a company which has lost considerably more than that in the last few years and still loses over £30m per year isn’t much of a safety net) they still seem to just have blind hope that the web will somehow come good in time to save them.

    Perhaps it will, and if they deliver their goal to make £91m from digital in five years then I guess they stand a fighting chance (although that’s still only half their current turnover, and they don’t say how much of it comes from services like dating, separate from the actual newspaper).

    But there have been countless digital newspaper business plans with that sort of number in them, usually justifying some large capital investment in digital (The Guardian is going to invest £25m this year), and they have mostly proven to be complete fantasies. A new guru presents an even more fantastical plan the year after, but rarely if ever are the enormous returns actually delivered.

    In other words, seen from the outside the Guardian seems to be trying to reconcile two inherently conflicting points of view into something they can present as a rational strategy.

    On the one hand, they have a strong belief that by growing their online audience they can grow their influence and stature and become a sort of world newspaper. Released from the constraints of print they have the freedom to find their audience all over the world and they don’t want to put barriers in the way of that.

    On the other hand they need to make more money, or at least lose less.

    So they’re dramatically cutting costs to address the urgent need to improve the bottom line.

    They’re making an optimistic five year plan safe in the knowledge that it will be a long time before anyone will know if it can be delivered (and plenty of time to change it before the deadline anyway).

    And they’re hoping it will all come good in the meantime.

    I hope that’s not it, and that the Guardian has some amazing secret masterplan up it’s sleeve.

    But it’s basically the approach adopted by most newspapers for most of the history of the internet, and so far it has an unbroken record of failure.

  • Big idea, big support

    The European Commission is sometimes a confusing, strange beast. I have been to meetings and conferences organised by them countless times and have always come away not sure I knew quite what was going on.

    Recently they have been been looking for Big Ideas to help formulate their digital policy and agenda. This is part of an, in my view laudable, effort to involve a wide group of stakeholders in policy development and let them help set the agenda.

    One such big idea, which I have been slightly involved with, was submitted by the European Publishers Council and has made it through a selection process whittling down about 100 ideas submitted to just seven which were then discussed at the Digital Agenda Assembly at the end of last week. I was part of the panel presenting the idea at the start of the day.

    Their big idea is to ensure the various standards and systems for managing copyright are interoperable, so that finding information about pieces of content and obtaining licences is easier. Boring though it sounds, this is an essential piece of plumbing (one person referred to it as “killer plumbing”) which will enable many great things to happen.

    As you can see from the agenda for that session, a pretty wide group of organisations and stakeholders were represented in the discussion, from Yahoo, Amazon and Microsoft through consumer organisations, artists organisations and collecting societies to the European Parliament, as well as others who contributed from the floor.

    The whole thing will be written up and responded to by the Commission in due course I’m sure. My impressions were that the idea was a big hit and will probably lead to some action on the part, mainly, of the stakeholders and hopefully with the support of the Commission to get everyone together.

    I’ll post further reflections too, but for the moment my strongest impression from the day was this.

    Every panellist, when asked whether they support the idea of creating a “Creative Content Access Alliance” to move the idea forward, said yes.

    With the exception of Google, who said they were already supporting the Global Repertoire Database (a music industry initiative which would be an important part of the Killer Plumbing) and, er, weren’t sure if they could support an alliance.

    Now, everyone was put on the spot by the question, and I suppose everyone will have the opportunity to further reflect as the process develops, but it was an interesting anomaly that only one organisation demurred from offering their support. What, I wonder, would Google have to be concerned about?

  • Apple’s Newsstand – the oldest new idea yet

    Apple have announced their Newsstand. It’s a sort of container for newspaper and magazine apps. They’re arranged in a shelf format, a bit like shops. When a new issue comes out you can pay for it (or you might have a subscription).

    This is hardly rocket science but in the topsy-turvy digital world it’s a huge innovation. People are pondering at length what it can all mean, who will win and who will lose.

    In fact it’s self-evidently not particularly innovative – existing services like Zinio and, er, Newsstand do the same thing.

    The real significance is that it brings a large chunk of Apple’s 225m credit-card wielding customers within the reach of publishers everywhere.

    In other words, paying for content is becoming less strange and more ubiquitous.

    Many anxious views will be expressed about Apple’s terms of trade, their percentage take and their non-sharing of data but to me that’s beside the point.

    To have a market worth fighting over we have to have a market. Expanding the world of paid content is a good thing and we can argue over the money when there’s a bit more of it at stake.

  • How long should a good thing last?

    The term of copyright is a controversial and much argued issue. How can we minimise any negative consequences without robbing anybody of their property?

    Copyright lasts a pretty long time. If I live to 75, the copyright in this article will finally expire some time in 2114. After that it will be in the public domain, out of copyright. Anyone will be able to use and my successors – probably my great-granchildren –  will no longer have control over it. But until then you’ll need my, or their, permission to do anything with it.

    Of course the chances that anyone will have even a remote passing interest in this article in even a few years are pretty remote. It won’t take a century for this article to be forgotten, an irrelevant piece of ephemera. Despite that, the law as it stands hands the same protection to everything, from the emails you send and receive every day to the great works of William Boyd, The Walt Disney Company and your brother-in-law.

    Good arguments against long copyrights

    This gives rise to many, and sometimes quite emotive. arguments. People rail against the length of the protection, claiming corporate interests are trying to monopolise and protect their greatest assets. Disney, frequently, is blamed for copyright term extensions which coincide with the looming expiry of rights in early Mickey Mouse cartoons. Opponents of the long term of copyright have many eloquent and outspoken supporters.

    Another common complaint is that most of the content protected by this long copyright term doesn’t want to be. Despite being effectively abandoned by its authors, who have long since stopped caring about their work of decades before, nobody can use it without their permission which – if they can’t be found – can’t be given. So huge amounts of work – so-called “orphan” work – is caught in a sort of copyright limbo, effectively held in stasis while the copyright clock slowly ticks down to its eventual transition to the public domain.

    Economists talk about economic incentives, and say nobody creates anything with a mind to a hundred years or more of payback to justify their efforts, and copyright term should only be as long as needed to create the incentive to create something in the first place. So a few years is more than enough.

    Copyright term means you only temporarily own your own work

    All of these arguments step around one key point: copyright is property. It belongs to someone. And the law forces them to give up ownership of it at some stage, whether they like it or not.

    When you stand back and think about it, that’s kind of strange. It doesn’t happen with many other kinds of property which, generally, you own indefinitely. Why should copyright ever be given up at all? It’s not as if it’s a shared, natural resource or something. it’s yours – you made it. Without you it wouldn’t exist. So why shouldn’t it stay yours?

    Why shouldn’t my work stay mine?

    One answer to this question is a cultural, or moral one. Copyright should pass to society, to the public domain, for the public good. We should all have access to knowledge, and copyright should only exist as an incentive to create things in the first place. Once your investment in creating it has had a good chance to be re-couped with profit, copyright should end. That way the greater interests of society are served.

    Another, the subject of much anguished hand-wringing in the USA, is because the US Constitution (sometimes treated, to cynical British eyes anyway, with a little too much quasi-religious reverence) says that copyright should be for a “limited time”. Speculating about what the founding fathers meant by this is a peculiarly american way of tying yourself in knots.

    What does it mean in the real world?

    My instinct is to think about the realities. Where, in real terms, can the negative impact of copyright terms be seen? Can we, on the other hand, see any positive impacts?

    As I have said before, one of the great balancing acts performed by copyright is to limit appropriation of something (copying) without limiting inspiration. The truth is that almost all creative work can trace its inspiration back to something someone has done before. Because copyright encourages access to knowledge, and doesn’t limit what can be done with that knowledge, it drives creation of vast amounts of new work all the time. Which I think is a good thing. The economic incentives are strongly to create new things rather than re-cycle old things.

    I suppose this does mean that some old things get lost along the way, effectively impossible to re-commercialise without risk because the copyright owner can’t be found (although, as an aside, the risks are often quite small and manageable). But I’m not sure that is the terrible tragedy it is often portrayed as. There are lots of arguments, many of them theoretical, about the negative impacts, but even where they’re real I think the best solution is for the law, and technology, to incentivise commercial solutions than to reduce copyright term and simply appropriate the value from those who created it.

    A bad moment for change

    We should also think about the moment we’re currently in. One of the main reasons why works become orphans is because it stops being commercially viable to exploit them. In the physical world of content there are always costs involved in keeping something available, even if you don’t sell any. In the digital world that’s not true – once something is digitised it can sit in a server waiting for a buyer at virtually no cost at all.

    That means that many of the things currently unavailable or considered “orphan” could be brought back into commercial availability by the people who own the rights. What was previously lost can be rediscovered and brought back into circulation. We’re already seeing this happening with e-books – there are plenty in the Kindle store for £1 or less. And with digitisation of printed books possible for about $50, the investment is low enough to encourage huge amounts of books to be brought back into print. In other words the commercial incentives are just beginning to be enabled by technology, now would be a bad time for the law to intervene.

    Ultimately, creators choose copyright

    There are good arguments on all sides of the copyright term discussion. You can equally well argue for a perpetual copyright term (as Mark Helprin, with some contortions to avoid arguing against the “limited time” decree of the US Constitution, does) as an incredibly limited one.

    In truth most of these arguments are a thought experiment, an exercise of imagining how much better the world would be if only it was the way you want it.

    Personally I’m inclined to the view that copyright term is fine, too long for some purposes, too short for others but in the end if you have to have one rule to apply to all material, longer is better. We should be looking to address any perceived unwelcome side-effects using technology and commercial solutions.

    The truth is that the law shouldn’t need to decide. Creators can choose to put their work wholly or partly in the public domain any time they choose. Projects like Creative Commons exist to make it easy. The law as it is gives creators the chance to make their own choice about how much they want to take advantage of their copyrights.

    The reality is that most of them choose not to give up their rights. Which to me means that the argument for forcing them to do so by reducing copyright term needs to be overwhelming.

    In my view that argument has not yet been made.

  • Hargreaves sallies forth

    So, it’s out. The Hargreaves review has published its findings today. Unsurprisingly most of the leaks were well informed and it roughly says what I thought.

    So far it seems to have achieved the remarkable feat of pleasing both the Cory Doctorows of this world (a passionate advocate of liberalising copyright) as well as, from what I’m hearing, many media companies and rightsholder groups.

    Doubtless they’ll all come out with public positions soon but if it has managed to avoid polarising people that’s pretty impressive.

    Things I like: government to stimulate, facilitate and help fund creation of a “Copyright Exchange” but not own or run it. The fundamental proposal is about seeing and realising the potential for growth. The idea of introducing US-style Fair Use into UK law also rejected, but with an interesting analysis of the arguments to explain the decision.

    Things I like less: the idea that we need more exceptions more quickly. I just disagree with that. I think exceptions should serve the public good when the market fails to do so – to make a judgement about this the market has to have a chance to succeed. The examples of some (but not all) digital products coming with a “format shifting” licence – I think this is referring to things like DVDs which have a copy for your iPod on them, and some (but not all) ebooks coming with the ability to lend them to people is cited as a reason for more exceptions. I look at these things and see an industry in transition, moving to recognise the needs of the market. It might be confusing, but it’s also in flux. Exceptions would not help.

    All in all, though, at first glance it’s a great piece of work. The omens were not good: the manner of the announcement, the incredibly tight timescales, the passionate and polarised views. I think it might be the first copyright review (the first of many) which actually achieves something.

  • Right to register?

    The Hargreaves review looks like it’s about to de-cloak. As the umpteenth review of copyright recently, and having been conducted at breakneck speed, the signs are that the outcome is better than we might have hoped. (I had a word or two to say about this review before).

    Zone of common sense

    For one thing, the idea of introducing US-style “fair use” into UK law seems to have gone away. On the one hand this isn’t surprising, because the idea doesn’t stand up to an iota of scrutiny, not least because the claim that it somehow helps nascent digital businesses with a mythical “zone of oxygen” is completely wrong headed. On the other hand, since David Cameron specifically mentioned this as a desirable outcome when he announced the review, it must be a bit awkward for Hargreaves to reject it.

    Thankfully it looks like he has, and is distracting us by coming up with a few better ideas instead.

    Rights registry

    The one which seems to be attracting the most attention is the idea of a copyright hub, or rights registry, through which copyright can be licenced.

    This is a great idea and one which for me is one of the foundation stones of the future for copyright. In order to licence something the first thing you need to know is who to go to for the licence and a rights registry will enable that.

    But the devil is in the detail, and this needs to be done well to work well. There are plenty who would love to see it get bogged down in an administrative political swamp, and when governments try to do things themselves, it can turn a bit messy.

    What I have been reading so far sounds a bit like a call for a single, monolithic, registry, and statutory registration hasn’t been a requirement since the advent of Berne Convention. I hope that’s not what emerges, because along with monolithic solutions always come politics, cost and inefficiency.

    Learn from what already works

    I am hoping that what we end up with is a distributed rights registry, with minimal central infrastructure and lots of people competing to provide services to the market. Obviously there needs to be an authoritative registry at some place in the system, but it should be as lightweight as possible, simply signposting the way to whoever can actually deal with the content in question rather than getting involved in the transaction itself.

    In some ways (although by no means all) there are some lessons to be learned from the Domain Name System here. Name servers provide the actual information about a domain, all the central registry does it say which name server is responsible for a particular domain.

    KISSS – Keep It Seeming Simple, Stupid!

    Name servers in turn are more complex signposts – sending email to one server, web traffic to another and so on. And those servers can be anywhere, and can do anything. A simple signposting system facilitates, rather than interferes with, the behaviour of the actual domains. All the user does is click on a link and within a second or so they connect with one of multiple millions of possible servers on the internet. The complexity is hidden but the system is flexible.

    I think we need something like this for content. Better security and a less dysfunctional central governance than the domain name system has would be good, but the distributed and competitive nature of the actual market it facilitates are essential.

    A solution for the whole internet

    Actually, I think they’re inevitable too. The UK can’t set up a single, central function for the whole world. Whatever happens it will need to interact with other similar systems elsewhere. Ideally they will be built on a single set of protocols which will be open and non-proprietary.

    Hopefully the next step will be for the UK government to sponsor the creation of the infrastructure and protocols needed, without trying to own or control them other than doing whatever needs to be done to protect the authority and trust in that central “root” database. That way they can move the whole internet forward as well as putting the UK in pole position to show the way to a new phase of growth and creativity.

  • What do you use, in the end? End (re)users and the evolution of licensing

    End users are the focus of everyone in the creative industries. But they’re strangely neglected. It’s time to think of them as active, not passive, customers.

    The customer is always, um, licenced

    End users are strange beasts, in the copyright world. They’re the ultimate goal of all creative endeavours… what’s the point of creating something nobody wants to see?

    But in terms of their interaction with the actual nuts-and-bolts of how copyright works they’re treated almost as an afterthought. They’re the passive recipients of content and they are expected to stay passive.

    So while the business of passing copyright around, licensing and trading, is a very active, involved and evolved one for everyone else in the chain – the creators, the publishers, the distributors and others – it’s curiously ossified for End Users.

    “Not to be shown on oil rigs”, the warning sternly says at the start of a DVD. That’s a licence, of sorts, but not one you get much say in. “Not to be stored in a retrieval system” say books before you get to the actual story.

    You’re not allowed to do anything other than what they say, you’re positively discouraged from doing so. I have no idea what is involved in legally showing a DVD on an oil rig, and the warning notice doesn’t explain, but I’m sure it’s not simple and not cheap.

    Previously passive

    There are good reasons for this. Principal among them the fact that in the past end users only wanted to consume things. They were naturally passive creatures in a disconnected world. Which is good, because managing the complexity of everyone needing a slightly different licence was way too expensive for the mass market. It all came together in what management consultants would call a virtuous circle, passive consumption leading to a mass market for cheap products, leading to a huge diversity of products and generally falling prices.

    But it has changed now. End users are no longer passive. They do things other than just sit and stare. They tweet, they blog, they email, they chat, they link, they post, they comment, they mash-up. They include the content they consume in the output of their online life.

    The era of End Re-users

    They – we – are not End Users any more. We’re End Re-users.

    As far as I know, the term “End Re-user” was coined in the News Corporation submission to the Hargreaves Review of Intellectual Property in the UK (I had a hand in drafting this submission).

    I think it’s a useful concept, because it encapsulates both the challenge and the opportunity for the future.

    The challenge: End Re-users are often accidental infringers

    The challenge is the obvious one. If users want to do all sorts of “use” of content, they’re no longer passive and they’re straying outside the boundaries of the licences they have been given. That makes them infringers. And that fact alone gives rise to a range of proposals from legislators, anti-copyright activists and an assortment of thinly disguised vested interests to change the law. It can’t, many say, be a good law if it throws so many people into breach of it.

    Considering this from the point of view of the law is the wrong perspective, though. The law gives end users virtually no rights at all. The thing which allows a user to do something with a piece of content is the licence from the content owner, not the law. The problem isn’t with the law, it’s with the paperwork.

    The opportunity: more use of content creates a new market

    Which leads to the opportunity. Very few businesses have become really successful by refusing to give their customers what they want. This emergent generation of End Re-users should represent a huge new business goldmine.

    All these people who want to user material in different ways are potentially more valuable customers. Every time they want to do something beyond just sit and consume, they’re creating value.

    They might not be worth much individually, but there are millions of them out there. And as long as you can collect it simply, even a few pence can be profitable. Just ask The Sun.

    The practical barrier to treating them as an opportunity, the complexity of managing all those licences and payments, ought to be eliminated by technology.

    A quick word about cost vs value

    Some people argue that technology, because it drives the cost of copying content to zero, will inevitably lead to content being valued at zero.

    I would make a different argument. In freeing ourselves from the limitations of the physical supply chain for creative products we have also freed ourselves from the mass market constraint that every customer has to want, and get, the same thing.

    The real liberation of the move from atoms to bits isn’t the end of cost and price, but the end of the need for one size – and one price – to fit all. It ought to be feasible to cater for the blogger, the passive consumer and the large scale commercial publisher individually and cheaply.

    The advent  of the zero-cost copy frees the creative industries, and their customers. from the straitjacket of mass production. Technology creates the opportunity for fabulous growth and innovation, with everyone’s needs met by the right content and a fair price for them.

    Meanwhile, back in the real world…

    All of which sounds wonderful, but it doesn’t bear much resemblance to the real world of the internet today. If this huge opportunity is lurking in the shadows, why hasn’t it come out into the open yet?

    Surprisingly, the answer is only partly that the technology doesn’t yet exist. Most of it does, and what’s left really needs a market to evolve around, at which point it will begin a symbiotic flourishing along with the market.

    Perhaps the same could be said of many of the existing media businesses. Incumbent players are rarely the best innovators – they need to be shown the way forward, usually by younger, nimbler competitors snapping at their heels.

    But those new entrants don’t really exist, leaving the existing media companies and their still substantial existing businesses with the classic innovators’ dilemma. The absence of these new entrants is another signal that all is not as it should be.

    So things grind on, slowly

    So evolution online, when it comes to content businesses, has moved at a glacial pace in the last ten years.

    New entrants restrict themselves, by and large, to gaming the advertising market with low content costs and clever search optimisation.

    Older players, with their high investment in content, struggle to find success to match their huge online audiences.

    The underlying issues

    In my view the enemies of change in this area are the vested interests of the dominant players on the internet and to some extent the law.

    Many companies which make fortunes from the internet depend on the chaotic and un-evolved market of today remaining.

    What is needed is technology to manage billions of complex licences, at low cost, on behalf of millions of creators and hundreds of millions of consumers.

    The potential of technology to manage these relationships remains unfulfilled not least because it would damage the business of Google (whose aggressive lobbying against the Automated Content Access Protocol betrays their real fears in this area). And without Google’s support, or at least compliance, anything which affects the web broadly has little chance of getting established.

    Anyone making billions of dollars a year from the ability to treat the whole internet as a free resource understandably wants to maintain the status quo. As the ultimate re-user they would have lots to lose, and at first glance little to gain, in a world where their use, along with everyone else’s, could be properly licenced.

    The law, often, doesn’t help

    The law, in the form of various internet–friendly statutes enacted to protect the then nascent ISPs and search engines, to a great extent enshrines and protects this status quo. So it shares the blame.

    While copyright law may remain largely intact, the law creates perverse incentives which, my providing immunity for ISP and service providers, effectively protect the interests of infringers. As long as the law makes infringing use of content free and virtually risk-free, it will be hard for competitive new markets to emerge. So the law preserves and protects the new status quo.

    But the status quo, while serving a narrow range of limited interests well, serves everyone else badly. End Re-users, the obvious big opportunity online, are un-served by antiquated processes and approaches to licensing. A range of entrepreneurs who would like to be able to use content more easily in their businesses, find it difficult and frustrating to do so. And content owners are wilting in the harsh reality of a digital environment in which audiences generate pitiful returns.

    The End Re-user is always an opportunity

    So I think we should all keep the End Re-user in mind when we consider the online landscape. Their interests are paramount not just to them, because they want to be able to do what they want with the content they like, but to everyone in the digital ecosystem because well-served end-users will be the generators and beneficiaries of much of the unfulfilled potential of the internet.

  • Not enough money in advertising? Duh…

    The Guardian has a report which tells us (apropos my previous post)  that there isn’t enough money in advertising to fund tiny startups. Which rather begs the question why anyone thinks there’s enough in it to fund entire newspapers…