New rights? Old tactics..

[You can also read this on the BBC News site, as usual]

Earlier this month the Association of Indepedent Music had one of those roundtable debates that industry bodies are so fond of.

As well as the independents there were people from the Musician’s Union, the Music Managers Forum and the MCPS-PRS, who license the use of music on behalf of songwriters, composers and music publishers.  All in all they claimed to represent some 85,000 UK music companies and individuals, though obviously they couldn’t all fit in a room at once.

They were there to get some publicity for proposals to improve copyright law, although their ideas seemed to have rather a lot to do with improving the way that musicians and rights holders can extract money from the Internet than the wider question of how copyright law can benefit the general public.

But since they are industry representatives this should not surprise us, and we shouldn’t criticise them for seeking to promote their own interests at a time when the music business is going through major change as a result of the internet revolution.

However knowing that they have a particular agenda, in this case the financial concerns of their members, should lead us to examine their proposals with some care, since we cannot be sure that they won’t end up causing serious problems for people or organisations that don’t happen to be involved in the music industry.

After all, the last big reforms in copyright were the laws that make it an offence to break any digital protection around music or films, and they have had a very damaging effect on our freedom to explore and experiment with digital content, damage well documented by Princeton University professor Ed Felten in his blog, Freedom to Tinker.

The music industry thinks that it’s unfair that people are making money selling bandwidth that is used to transmit song files and hardware to store it on and play it through, so they want a tax on hardware like iPods and blank media like CDs and DVDs.

However they also want a new form of copyright, one that specifically applies to digital music being copied over the Internet.  They call this a ‘Value Recognition Right’, the idea being that it applies when someone uses something you created to make themselves money, even if you had nothing to do with the arrangement.  So if you make songs which get downloaded, you’re entitled to a cut of the network provider’s income just because it happens to be your songs moving over the network, and even though the network has no idea what traffic it is carrying.

I’d like to be able to explain the concept in a way that didn’t make it sound vaguely ridiculous, but I fear that’s beyond my abilities. I’m not sure why the musicians would support it, either, since it would seem to come from an acceptance that unlicensed copying will just happen uncontrollably, and strikes me as more as a desperate attempt to make the best of a bad deal rather than a carefully considered policy proposal.

But it is just a proposal, a starting point in the negotiations that will take place at yet more roundtables, and in private meetings with ministers and special advisors up and down Whitehall.

Whether or not this plan comes to anything, it’s clear that since copyright reform is on the table new rights are going to be part of the mix.  And while the idea that you can just create new copyrights may sound strange, it isn’t at all new or unusual.

There are lots of different types of copyright, and we’re used to the fact that different rules apply to the lyrics of a song and the actual recording by a particular artist at a particular time, and creating a new copyright may be a sensible way to respond to technological change, as happened when sound recording was first developed over a century ago.

New rights are rarely uncontroversial. Those who’ve had the idea for new ways to exploit existing material often don’t see why they should have to give some of their money to the content owners or accept limitations imposed by them, while the established players think that their entitlement is obvious.

Google Book Search is a good example here, because the ‘value’ that Google creates by allowing researchers to find material inside books would seem to go directly to the publishers in more sales in book stores or more use in libraries, while the money Google will make from putting ads on the search results pages does not really come from exploiting the content of the book at all.

However this is not how many publishers are presenting the matter, and it may well end up in court.

In the early days of the Web there was a lot of discussion about how we would need new laws to cope with life online, even from those who rejected the idea of ‘cyberspace’ as somehow a separate world where the old writ did not run. It seems that we’ve managed to get away without many net-specific laws simply because the old laws, especially English common law, have proved sufficiently adaptable to cope with the network.

But when it comes to copyright the old dispensation seems to be unable to cope in so many different ways that a complete overhaul is necessary, along with the creation of new rights and – it is fervently to be hoped – the removal of others that do not serve the public interest.

A value recognition right may not be the way forward, but some rethinking of the meaning of copyright and how that translates into rights that can be licensed, traded and even reserved seems long overdue.