So, I finished the response to the Digital Rights Agency Report mentioned in my earlier post (interesting has a very high (for this site) viewing figures very quickly). So that it's available in an accessible form as possible I have reproduced it below and attached the final version in ODF.

I hope it goes without saying that this is released under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 UK: England & Wales License as is all content posted to this site. I'm going to try and do all such comments in a similar format (rather than the letter) and am also trying to put together some form of bio I can attach so that'll be going up soon too.

Comments on “Copyright in a digital world – What role for a Digital Rights Agency”

Introduction

The “Copyright in a digital world” report is expanding on and working on three action points from the Digital Britain Interim Report:

• exploring the creation of an agency to “bring industry together to agree how to provide incentives for legal use of copyright material; work together to prevent unlawful use by consumers which infringes civil copyright law; and enable technical copy-right support solutions that work for both consumers and content creators” [Action 11]
• “explore with both distributors and rights holders their willingness to fund... such a new approach to civil enforcement...” [Action 12]
• Consult on “requiring ISPs to notify alledged infringers of rights... that their conduct is unlawful” and “requir[ing] ISPs to collect anonymised information on serious repeat infringers... to be made available to rights holders together with personal details on receipt of a court order” [Action 13]

In my response to the Digital Britain Interim Report I commented on the consumer-unfriendly aspect of the proposed Digital Rights Agency and the current distrust that consumers have towards the content industry. Since then, further examples of rights holders abuse of their position have come to light:

• The Performing Rights Society in the UK interprets and challenges “unlicensed performance” to an extent that no-one should be proud of – in particular radios in the workplace[ref:http://www.telegraph.co.uk/news/newstopics/howaboutthat/5061004/Woman-who-plays-classical-music-to-soothe-horses-told-to-get-licence.html].
• The PRS/YouTube row. With YouTube (Google) having now pulled all music videos for UK viewers because they believe the PRS is asking too much for the “right” to show promotional videos, UK consumers are losing out, the artists are losing out and the PRS is losing out. On entertainment, on sales and advertising, on public goodwill.

Aside from the problems of direct sharing, the other issue that rights holders have stems from derivative works and amateur creation.

• When Amazon released the Kindle 2 – an eBook Reader – it had the ability to read aloud the content of the eBooks. This was a major boon for the blind and partially sighted, but one group representing Authors has managed to get Amazon to agree to disable this feature where requested claiming that the computerised tones reading the work would compete with the professionally read audiobook versions. Authors across the net are calling foul on this themselves[ref:http://whatever.scalzi.com/2009/02/11/][ref:http://whatever.scalzi.com/2009/02/11/][ref:http://journal.neilgaiman.com/2009/02/quick-argument-summary.html][ref:http://wilwheaton.typepad.com/wwdnbackup/2009/02/wil-wheaton-vs-text-2-speech.html]:
  

  “When you buy a book, you're also buying the right to read it aloud, have it read to you by anyone, read it to your children on long car trips, record yourself reading it and send that to your girlfriend etc. This is the same kind of thing, only without the ability to do the voices properly, and no-one's going to confuse it with an audiobook”[ref:http://journal.neilgaiman.com/2009/02/quick-argument-summary.html]

• The RIAA's use of takedowns against videos on YouTube and other video sharing sites that have music in the background or as integral parts of the clips. They are attacking new content outside of their control regardless of whether it would be legal use[ref:http://blog.wired.com/27bstroke6/2008/07/universal-says.html].

Some of these examples relate to stories based on American copyright law and agencies, but in the Digital World, these boundries are becoming less important. Record labels, publishing houses and other rights holders are multinational businesses and the example they show in America is broadcast around the world.

Some of the stories also relate to non-commercial use of content that is being pursued. The Digital World has opened up many possibilities for individual creators to make new content both independently (such as entries on blogs) and from existing copyrighted material (such as some content on YouTube and similar sites). This latter content can be further thought of in two ways, where the perceived infringement is incidental or in the background (such as the dancing baby story above) and where it is integral and in the foreground (such as “sync” videos where fans make their own sync-along videos of popular songs). It is important to recognise that this new content is an important part of the new digital world. Asking non-commercial, independent creators to negotiate rights with multi-national players would not be possible due to the massive imbalance between the parties.

It is important to bear in mind the public perception of the style and extent of copyright enforcement. Without public support and co-operation for this new agency and without a strong identity as independent of the agencies which exist in the UK and globally and being as much for the consumer and artists as the labels it will be ineffective.

The report describes two aspects to copyright control. The first is the copyright law itself (which is subject to consultation separately) and the second is the surrounding systems (which this paper seeks to address). The paper envisions the Rights Agency being the body to create codes of practice on enforcement based around the new legislation. The paper prefers legislation which allows this code of practice to include measures against offenders. I have a very major concern that creating broad, unlimited legislation with an industry body deciding on it's enactment would be putting too much power in the hands of the rights holders. Any legislation being produced should not be created with a mind to an industry defined code of practice limiting it in practice. The question of proportionality should be addressed in the law itself.

The government seems to want to avoid legislating for the problems of today and allowing the problems of tomorrow to flourish. This is an entirely valid concern, however, I believe that the Government is there to ensure long term success and to allow continued competition. Allowing rights holders who's primary responsibility is to their shareholders and short term profit to dictate how to respond to new technologies is extremely worrying. For example, for years web development stagnated because Internet Explorer, the dominant browser, was not updated to match new and evolving web standards (such as Cascading Style Sheets). In effect, Microsoft was deciding what consumers, distributers and creators could and could not do.

Microsoft's stranglehold of the internet was finally broken when the open source firefox was created. This community developed software was initially supported by an old name in web technology, but it was the individuals who were not a part of the hedgeomony who created it. It is individuals who are not represented in the current hedgeomony who will create the next generation of content and delivery. And it will threaten the big players who will make up any Digital Rights Agency and they will fight it.

Allowing rights holders that a stranglehold on digital content creation and delivery and enforcing it in law will be one way to ensure that Britain is not open to innovation and new ideas – one of the supposed aims of the report.

The Straw Man

Education

I am glad to see acknowledgement in this report that mere admonishment is not a suitable education method. In my response to the Digital Britain Interim Report I mentioned the unskippable FACT adverts present at the start of some commercial DVDs. This method of treating people who have purchased an entirely legal DVD as criminals is not in anyone's interest and leads only to resentment.

To educate about copyright, the educating body has to be trusted and respected. As identified previously, existing agencies do not fufil either criteria. Any new body should focus more on what is legal and back that up with action which shows that it acknowledges that in the new Digital Britain, individual creations made for fun, not profit, are a valid part of that culture rather than a infringment to be targetted.

Digital Content Kite Mark

I do not believe that a digital content kite mark as proposed would work. The digital world is one in which copying is easy. Better solutions already exist which acknowledge these copying capabilities; public and private key encryption and signing and hash algorithms can be used to prove that content sent has not been modified and comes from a trusted source. Organisations should look instead to making use of this. This would have the added advantage of educating the public on these security measures and may prevent virus infection from other sources.

Technical Test-Bed

I am concerned that any technical solution created/tested by the DRA would have had no input from consumer representatives. I believe that this will create a greater chance for unaccountable and unintentional censorship. Even with consumer involvement, the unintentional censorship will happen although hopefully would be resolved quicker. It would also be important to make clear that it is important that any technological measure be able to route round false positives or not be used. This includes both the identification of infringers and the identification of infringing content. For instance unilaterally targetting Bittorrent will target legitimate uses such as the dissemenination of free software or other legal content.

Dispute Resolution

Resolving disputes between consumers and rights holders with minimal cost to the consumer is a very commendable idea. However, to suggest that a body made up entirely of industry figures be responsible for administering it is to immediately undermine it's position and independence.

Representation

I am heartened to see that an acknowledgement is made to consumer involvement. However, the fact that there is only one question out of 29 about consumer involvement shows that there is a long way to go in this area. Consumer representation should certainly have a vote on issues and full input into all decisions. As mentioned earlier, small scale and non-commercial content creators have very different problems and many content creators in the digital world live in a very different culture to what the current big players are used to. These people need to be represented in a different manner than those who are merely consumers.

Conclusions

• As a consumer and non-commercial content creator in this digital world I am concerned about the lack of any focus on involvement from the likes of me other than as targets for the campaign.
• I believe that it is vitally important to draw distinction between commercial and non-commercial actions and that non-commercial activity should be allowed to flourish as much as commercial activity in the Digital Britain and the Digital World.
• I think it is necessary that should a DRA be created that consumers need a body which can represent and advise them.
• Any new legislation should be considered with the single question of “what is the absolute worst way this could be interpreted for consumers” being foremost in mind.