Copyright – Use It Or Lose It?

I was browsing in one of the last remaining record stores in Melbourne’s CBD last week, flipping through the secondhand racks for independent vinyl releases of the 70s and 80s. (I was in search of some sounds of the Paisley Underground, if anyone is interested.) The shop owner, who also runs a record label, lamented that there are a whole bunch of out-of-print recordings of that era that he wants to license for reissue in physical format – but in many cases, the rights have since been acquired by major record companies that have no interest in re-releasing this material themselves. Yet, when approached for permission, oftentimes they ask for prohibitive licensing fees, making the venture uneconomic.

The sound of the Paisley Underground (on vinyl, of course) – Image sourced from Discogs.com

The irony is, most times the major labels have no idea what they have in their back catalogues, because the content they own has been scooped up through corporate mergers or is still managed via a series of archaic territorial licensing and distribution deals based on antiquated geo-blocking practices. Plus, understandably, they are usually more interested in flogging their latest product than curating their past.

There’s nothing wrong with content owners wanting to charge licensing fees, but surely they need to be commensurate with the likely rate of return for the licensee (we’re usually talking about a small circulation among enthusiasts, after all). Plus, the original production costs have either been written off, or amortized on the books – so, given there is little to no new cost to the content owner, ANY additional revenue stream would surely be welcome, however modest?

But what about streaming and downloads? Surely all this back catalogue content is available from your nearest digital music platform of choice? Well, actually no. In many cases, “out-of-print” also means “out-of-circulation”. And even if back content is available to stream or download, the aforementioned geo-blocking can mean that rights owners in certain markets may choose not to make the content available in specific countries. (I’ve even had the experience where content I have purchased and downloaded from iTunes Australia is no longer available – probably because the rights have subsequently been acquired by a local distributor who has elected to withdraw it from circulation.)

Of course, copyrights eventually expire or lapse, and unless renewed or otherwise maintained, usually fall into the public domain (but not for many years…..). Again, nothing wrong with affording copyright owners the commercial and financial benefits of their IP. But, should content owners be allowed to sit on their assets, and do nothing with their IP, despite the willingness of potential licensees to generate additional income for them?

In a previous blog, I ventured the idea of a “use it or lose it” concept. This would enable prospective licensees to re-issue content, in return for an appropriate royalty fee or share of revenues, where the copyright owners (and/or their labels, publishers and distributors) no longer make it available – either in certain markets and territories, or in specific formats. To mitigate potential copyright exploitation, copyright owners would be given the opportunity to explain why they have chosen to withhold or withdraw material that had previously been commercially available. There could also be an independent adjudicator to assess these explanations, and to help set an appropriate level of licensing fees and/or royalties.

Meanwhile, on-line sites like Discogs.com provide a welcome marketplace for out-of-print back catalogue!

Next week: Big Data – Panacea or Pandemic?

 

 

 

 

 

 

Update on the New #Conglomerates

My blog on the New Conglomerates has proven to be one of the most popular I have written. I’d been contemplating an update for a while, even before I heard this week’s announcement that Verizon is buying the bulk of Yahoo!. Talk about being prescient…. So, just over two years later, it feels very timely to return to the topic.

Image sourced from dc.wikia.com

Image sourced from dc.wikia.com

Of the so-called FANG tech stocks, when I was writing back in May 2014, Facebook had recently acquired WhatsApp and Oculus VR. However, apart from merging Beats Music into its own music service, Apple has not made any big name deals, but has made a number of strategic tech acquisitions. Meanwhile, Amazon has attempted to consolidate its investment in delivery company, Colis Privé, but got knocked back by the French competition regulators. Netflix finally launched in Australia in March 2015, and within 9 months had 2.7 million customers, a growth rate of 30% per month. Finally, Google has since renamed itself Alphabet, and purchased AI business Deep Mind.

Over the same period, Microsoft appears to have reinvigorated its strategy: back in May 2014, Microsoft had just completed its acquisition of Nokia. Since then, Microsoft has announced it is buying LinkedIn (following the latter’s purchase of Lynda.com in 2015), but has also shut down Yammer, which it had only bought in 2012. The acquisition of LinkedIn has been framed as a way to embed corporate, business and professional customers for its desktop and cloud-based productivity tools (and maybe give a boost to its hybrid tablet/laptop PCs). On the other hand, Microsoft has a terrible track record with content-based products and services, as evidenced by the Encarta fiasco, and the fact that Bing is an also-ran search engine. I think the jury is still out on what this transaction will really mean for LinkedIn’s paying customers.

So, what are the big tech themes, and where are the New Conglomerates competing with each other?

First, despite being the “next big thing”, VR/AR is still some way off being fully mainstream (although Pokémon GO may change that….). Apple and Google will continue to go head-to-head in this space.

Second, content streaming is not yet the new “rivers of gold” for publishing (and the sale of Yahoo! might confirm that there’s still gold in those advertising hills….). But music streaming (Apple, Spotify, Amazon and Google – plus niche services such as Bandcamp and Mixcloud) is gaining traction, and Amazon is building more content for SVOD (to compete with Netflix, Apple and Google). But quality public broadcasters such as BBC, ABC and NPR are making great strides into audio streaming (via native apps and platforms like TuneIn) and podcasting. One issue that remains is the fact that digital downloads and streaming still suffer from geo-blocking, and erratic pricing models.

Third, Amazon continues to build out its on-line retail empire, even launching private label groceries. Amazon will also put more of a squeeze on eBay, which does not offer fulfillment, distribution or logistics and is a less attractive platform for local used-goods sellers compared to say, Gumtree.

Fourth, Amazon is making a play for the Internet of Things (which, for this discussion, includes drones), but both Apple and Google, via their hardware devices, OS capabilities and cloud services, will doubtless give Amazon a run for its money. Also, watch for how Blockchain will impact this sector.

Finally, payments, AI, robotics, analytics and location-based services all continue to bubble along – driven by, for example, crypto-currencies, medtech, fintech, big data and sentiment-based predictive tools.

Next week: Another #pitch night in Melbourne…

 

 

 

 

Whose IP is it anyway?

Why should we claim ownership of our IP? This was the topic up for discussion at the recent Slow School dinner on Collaborative Debating presented by Margaret Hepworth. I won’t reveal how a collaborative debate works (I recommend you sign up the next time Slow School runs this class…), but I do want to share some of the issues and insights that were aired. In particular, the notion that shared knowledge is the basis for greater prosperity.

The use of Creative Commons means knowledge becomes easier to share (Photo by Kristina Alexanderson, image sourced from flickr(

The use of Creative Commons means knowledge becomes easier to share (Photo by
Kristina Alexanderson, image sourced from flickr)

First, the discussion centred on IP issues relating to ideas, content, knowledge, creative concepts and theoretical models. Not surprising, as the participants were all independent professionals, consultants, bloggers, creatives, facilitators, teachers and instructors. So we didn’t address the areas of patents, registered designs or trade marks.

Second, as someone who has worked in the publishing, data and information industries for nearly 30 years, I believe it is essential that authors, artists, academics, musicians, designers, architects, photographers, programmers, etc. should be allowed both to claim copyright in their work, and to derive economic benefit from these assets. However, I also recognize that copyright material may often be created in the course of employment, or under a commercial commission or as part of a collaborative project. In which case, there will be limitations on individual copyright claims.

Third, the increasing use of Open Source and Creative Commons means that developers, authors and end users have more options for how they can share knowledge, access resources and foster collaboration through additive processes and “common good” outcomes. A vital component of these schemes is mutual respect for IP, primarily through acknowledgment and attribution. Equally, an online reputation can be established (or destroyed) according to our own use of others’ material, especially if we are found to be inauthentic.

Leaving aside the legal definitions of IP and how copyright laws work in practice, the discussion explored the purpose and intention of both authors (as “copyright creators”, narrowly defined) and end users (as “licensees”, broadly defined). There was general agreement that sharing our content is a good thing, because we recognise the wider benefits that this is likely to generate.

But there is a risk: merely acknowledging someone else’s authorship or copyright is not the same as accurately representing it. Obviously, plagiarism and passing off someone else’s ideas as your own are both copyright infringements that can give rise to legal action. Even with the “fair use” provisions of copyright law, a critic or even an acolyte can mis-interpret the content or attribute a meaning that the author did not intend or even anticipate. As one participant noted, “Copyright is not just concerned with what we claim ownership over, but what others may claim as their own.” Not for nothing have we developed “moral rights” in respect to authorship of copyright material.

Although we did not discuss specific issues of copyright remuneration (e.g., through royalties, licensing fees or financial consideration for copyright assignment), there was a proposition that establishing copyright protection can lead to social, intellectual and even economic limitations. The understandable, but often misguided need to protect our copyright (as a form of security) is driven by fear, underpinned by scarcity models. Whereas, a more generous approach to copyright can actually lead to greater shared prosperity, based on the notion of the abundance of ideas and knowledge. And since, as one speaker put it, “there is no such thing as an original concept because all ideas build on previous knowledge”, the inherent value in IP is in how we contribute to its nurturing and propagation.

At the end of the discussion, and reflecting on my own recent experiences with copyright infringement and geo-blocking, I found I had shifted my position – from one that tends to take a more absolute view on copyright ownership, to one that identifies the need for some further modification to the current copyright regime, along the lines of the following:

  • Copyright ownership should not entitle the owner to abuse those rights – if anything, the copyright holder ought to be placed in a position equivalent to a trustee or custodian, to ensure that they act in the best interests of the IP asset itself, not merely their own interests. That should not preclude the owner from being compensated for their work or being allowed to commercialize it, otherwise, why would anyone bother trying to create new ideas or content?
  • Establishing copyright in ideas and creative concepts needs to be supported by a notion of “intent” or “purpose” (a bit like mens rea in criminal law). For example, if the intent is to merely prevent anyone else using or sharing the idea, then any copyright protection might be limited to a much shorter duration than the usual “life of author plus XX years” model.
  • Equally, under a “use it or lose it” provision, if copyright owners (and/or their publishers, distributors and license holders) elect to take their content out of circulation from a market where it had been widely available, then they would need to establish good cause as to why the copyright should not be open to anyone else to use and even commercialize (subject to reasonable royalty arrangements).
  • If we accept that all knowledge is additive, and that the proliferation of collaboration and co-creation is because of the need to share and build on what we and others have already created, how can we ensure the integrity and mutual benefits of open source and creative commons initiatives? One analogy might be found in the use of blockchain technology to foster contribution (adding to and developing an existing idea, concept, model or platform) and to support authentication (to validate each idea extension).

Perhaps what we need is a better IP model that both incentivizes us to share our ideas (rather than rewards us for restricting access to our content), and encourages us to keep contributing to the furtherance of those ideas (because we generate mutual and ongoing benefits from being part of the collective knowledge). I’ve no idea what that model should look like, but surely we can agree on its desirability?

Next week: Finding purpose through self-reflection

Is this The Conversation we should be having?

Here’s a barbecue topic for Australia Day: What is happening to the quality of public discourse? Over the holidays, I read The Conversation’s 2015 yearbook, “Politics, policy & the chance of change”. It’s a collection of individual articles from the past 12 months, grouped into broad themes, covering key issues of the day, at least among the academic and chattering classes. As a summary of the year in Australian political, economic, cultural and social reportage, it’s not a bad effort. With “news” increasingly bifurcated between a dominant commercial duopoly and a disintermediated social media maelstrom, The Conversation can offer a calm rational voice and an objective alternative.

Screen Shot 2016-01-24 at 6.43.50 PMThe title promises a new direction in political debate, and I went to the book’s Melbourne launch at the start of the summer, where Michelle Grattan, The Conversation’s Chief Political Correspondent held court in an audience Q&A. I was looking forward to the event, because part of The Conversation’s remit is to foster informed debate that is more than tabloid headlines, news soundbites and party room gossip. It has also positioned itself as a non-partisan, independent and authoritative source of news analysis.

I was hoping the Q&A would provide a considered discussion on some of the key policy issues facing the country – long-term tax reform, addressing climate change, updating Federation, dealing with the post-mining boom economy, improving the quality and efficiency of our education, health and infrastructure systems, etc.

Instead, the first three questions from the audience concerned Mal Brough, Ian Macfarlane and Tony Abbot. How demoralising. Haven’t we moved on from this cult of personality? Haven’t we learnt anything from the past 10 years or so? If the same event had been held during Julia Gillard’s term as PM, the names would have been different (Craig Thomson, Peter Slipper, Kevin Rudd?) – and for quite separate reasons, I hasten to add – but the context and implication would have been very similar: “Never mind policies, what’s the chance of (another) leadership spill? How are the numbers stacking up in Parliament? When’s the court case?”

Although I admire the aims of The Conversation, and I understand why it exists, I have some concerns about the type of discourse that The Conversation is actually fostering among its audience. As with many public institutions, I appreciate that it’s there (even though I am not a frequent reader), but like other news media, it risks confirming the bias and prejudices of its audience. It can also feel as if it is serving only the vested interests of its contributors, partners and sponsors.

So much of Australia’s recent political history has been dominated by self-delusional egos, nefarious party factions, insidious vested interests and character assassination (which I blame for giving us five prime ministers in as many years).

When it was my turn to ask a question, it concerned the recent bipartisan compromise between the Coalition and The Greens to publish the tax records of companies generating more than $200m in revenue (as a step towards tackling corporate tax avoidance). I asked, “Should we expect to see more of this seemingly new approach to politics?” Although Ms Grattan gave a detailed (and somewhat technical) explanation for this particular Parliamentary outcome and its likely implications, I felt that most of the audience were not interested. They would probably have preferred to be talking about the ins and outs of the party rooms. For me, this does not bode well for the level and quality of public debate we are having on (non-party) political issues that really matter.

I also have a few other niggles about The Conversation and the 2015 Yearbook:

  1. By only sourcing content from “recognised” academic experts and policy wonks, I think this overlooks contributions from commercial and industry experts which are just as valid. As long as such authors also declare any interests, it should ensure balanced commentary – but to exclude them from the debate just because they don’t have academic, public or research tenure is self-limiting.
  2. The site as a whole (and the book in particular) is rather thin on actual data references, and when research data is included in articles, there are rarely any charts, tables or infographics. I think this is a shame and a missed opportunity.
  3. The book hardly mentions the critical issue of tax reform (which barely merits half a dozen pages). Whereas, reform of the education system (including academic research funding) gets around 40 pages – which rather smacks of self-interest (and bias?) on the part of the academic authors

Finally, The Conversation provides a valuable (and from what I have seen, an impartial) service via its factcheck section, which in tandem with the ABC’s Fact Check is doing a sterling job of trying to keep our pollies honest (at least in Parliament…). More power to it.

Next week: David Bowie Was – “It’s a god-awful small affair”