Nick Higham, moderator
Dr Ian Brown, board member, Open Rights Group
Elizabeth Gibson, corporate legal and IP, BBC
Andrew Gowers, Gowers Review of Intellectual Property
Paul Grindley, head of business affairs, Film4
Paul Keller, project lead, Creative Commons Netherlands

NH: Dr Ian Brown did a good demolition job of DRM in a session in this very room last year, so surprised to see it come up again. Should rights holders be suing infringers? Should we have more enforcement? Or should we scrap DRM completely and make as much as possible free to users? Ian, have things changed since last year?

IB: The technological problems with DRM haven’t changed, but many people in the music industry are beginning to realise that DRM isn’t going to do what they had hoped it would. Surveys have found that music execs are starting to think that DRM reduces sales, and evidence to show that artists who provide their music unencumbered are doing better financially.

NH: So this is moving towards an unencumbered format? And is this making more money?

IB: Many people in the music industry are starting to believe so, yes.

NH: Andrew, I mentioned the Gowers Review, can you summarise it in three lines?

AG: We were asked to look at the changes in the world economy, and look at intellectual property rights, which is a global system so there’s a limit to what you can do in just one jurisdiction, but there were some clear issues, including the effects of digitisation, globalisation, and flexibility – there were a number of sticking points where copyright law was being brought into disrepute or misunderstanding on the part of the public and it wasn’t the public’s fault it was also the industry’s point. How did the gigantic growth in illegal downloading begin? I began because the music industry wasn’t producing stuff in the format that the public wanted, and so they’ve been forced to play catch up and some are now beginning to address the right issues. Blaming consumers for the growth of that thing was not looking in the right place. The second place misunderstanding took place, and which made the law look like an ass, was the act that most of us commit ever day i.e. transfer of music from a CD to a PC and then an MP3 player, the act of format shifting, which is an offence. The fact that it’s on the statute books taints the rest of copyright law. Then the concept of fair use, which is a broader concept in the US and covers more exceptions than in the UK, and we looked at some new fair use concepts such as transformative use, satire and parody. Need to modernise copyright law.

NH: The reaction to your report hasn’t been very good in the music industry.

AG: Broadly, the report was received well and accepted by the government in full, and the Gowers Implementation Team (GIT), are in charge of implementing. There was a distorted response from the music industry – they welcomed the enforcement section, as enforcement for online infringement is lagging behind what’s possible in the physical world.

NH: So they were happy with that, but not everything?

AG: They weren’t happy that we didn’t listen to the unrelenting lobbying from the music industry to extend the term of copyright protection on sound recordings. We looked at the evidence and we could see no case to make a change, so we are leaving it as it is. It was a question of what is the problem we are trying to fix? If there is a problem with the incentives to create then there might be an issue to look at, but there is no problem with the incentive to create in this country or any other developed country. Most recorded works sell the majority of its sales in the first 5 years. Very few acts last even 50 years, which is the current term, and even fewer that last 95 years. So we were being asked to extend the rent for a very small number of musicians for the benefit mainly of one big record company.

NH: Significant for TV too?

PG: Yes, we have been watching the music industry, and we have to grapple with this ourselves. The debate is uncomfortable for those in the business of distributing more collaboratively created content, films are consumed in different ways, there’s a more dense ecology, more entrepreneurial companies working together. This creates a lot of dynamism, so our challenge is to find a more creative solution. C4 sites in the middle of the ecology, so we innovate, develop talent, are producers, we have to look at our own position and industry holistically, and look at DRM holistically, you can’t isolate it from broader economic and cultural trends.

NH: Most film/TV content is high cost, lots of people involved whose time and effort needs reward, the comparison with music is that much music is lower cost and therefore lower value. So do you want more restrictions and more power over the end use of your product?

PG: Traditional models in film is that you can buy a copy, rent a copy, see it in a cinema, have it on TV, so challenge record industry has is that their value add which is marketing and finding talent is now in competition with social networks and other means by which film is discovered. In film, the value add is yes, distribution which will have to evolve, but as far as production is concerned that’s still an enormous cost. The transient copy that’s available on the website, if that became a permanent copy then there’s not much revenue left for the producer. DRM has an effect of alienating users, and that needs to be changed, and it doesn’t match what’s allowed legally under copyright but is it ever realistic that DRM would ever match what’s allowed under copyright. 4Docs, web based social network around documentary, uses Creative Commons licences.

NH: Does the BBC welcome the Gowers Review?

EG: BBC Always sits on the fence as both creator and user of intellectual property. So we accept things like the format shifting, just like it’s good to have time shifting. The exception for caricature, parody and pastiche, which is a natural creative thing to want to do, I’m delighted it’s been adopted although it’s causing a bit of disquiet, but I welcome that. As far as DRM is concerned, the BBC does use that out of consideration to the underlying rights holders and contributors, as they are anxious that their work isn’t used beyond the rights that they have given up. DRM could enable the idea of making one download of your CD on to something else, and our iPlayer trial needs DRM as programmes can be downloaded for a week.

NH: Tension for a public service organisation between making material which has been publicly funded as widely available as possible, and the need to protect and preserve copyright.

EG: We have the Creative Archive, which has just finished trialling, but we don’t have the rights usually. Old contracts didn’t include it. Plus we have BBC Commercial so we have to preserve the ability for them to make money out of things.

NH: The desire to make things widely available, in the final analysis, proves too difficult to do?

EG: It can do. And another problem is orphaned works where you can’t find the author.

NH: Creative Commons takes a different approach.

NK: CC offers copyright licences that allows others to use your work in certain ways. You can invite others to share, remix or reuse your materials. There’s six standard licences, and the main differentiation is between commercial and non-commercial licences. It acknowledges that copyright, which is this monolithic thing created when there were few players in the market, is now something which affects everyone. Everyone can create nowadays, and copyright is a one-size-fits-all thing, which doesn’t work now. We have serious issues with both copyright and DRM. We are interested in giving people the opportunity to express their rights in a way that invites creativity and reuse.

NH: Doesn’t it invite abuse?

NK: As an organisation we are young, so we don’t have statistics about this. But we think there are about 250m works licensed on the internet, but we have had only 3 cases that went to court that involved CC .So this way of expression rights in a term of ‘friendly guidelines’, and there is a bit of friction where people don’t understand the licence, but they are usually easily solved.

NH: What type of content is it?

NK: A lot of writing, lots of blogs, also lots of photography. Quite a lot of music, distribution platforms that take artists who reserve their commercial rights but give away the potential to share and remix.

NH: Are there lessons for the world of commercial copyright?

NK: If I listen to what was said here, CC has a three layered model, we have this licence which is 6 – 8 pages long and then we have a human readable version, and we need to explain what the rights and restrictions are. Need to be very clear about what the rights are, and that might remove some friction, even in commercial areas.

Questions from the floor
Does the BBC and C4 like YouTube?

EG: The BBC did a deal with YouTube, so yes, we like them. We can post trails and clips and specially made content where users can find it, and we get some advertising revenue out of it as well. You can’t download but you can post stuff up for your friends, but that doesn’t stop us enforcing our rights if our materials is posted up by other people.

NH: The BBC material that has adverts is the channel hosted by BBC Worldwide?

EG: Yes.

PG: It can be good if it supports your business, it can be bad if it compete. Maybe you have to tolerate a certain amount of competition in order to promote your stuff. The BBC stuff – what’s not to like, BBC doesn’t have to earn money from it’s material the way C4 does. But you can do other things, such as streaming short films on Second LIfe, no payment out of that, that’s about brand and developing authorial reputations of the creators of those films. Something else we’re doing is taking this community, and doing a movie that’s open source, inviting contributions form people, have input into idea, marketing, etc. Trying to find ways to innovate and try to find ways to use this technology.

AG: I think it’s heartening development – this can be seen as an ongoing negotiation. Sites like YouTube doesn’t mean that traditional means have got to role over and die, they’ve just got to find a new balance. And it’s always been a balance. Those copyright owners who compare their copyright to physical property are wrong, it’s not like physical properly. You can’t make endless copies of your house. What this is is finding a new balance, and there are areas that are grey in law.

NH: But isn’t YouTube encouraging a widespread disregard to copyright.

AG: It’s finding a balance. I’m sure that the courts will find that Viacom has somewhat of a pint and there’ll be a licence to be paid. But this is not

IB: This is about systems evolving, but in Viacom’s case, this was specifically considered in the DCMA. So they said that intermediaries don’t have to hunt through the content they host, but that they do have to take items down when someone complains. But Viacom want another bit of that cherry and want to try and change that.

NK: The problem with orphan works, if no one knows how owns the rights you can’t get permission, there’s a need to revert from the ‘if we can’t find the owner of the work then it can’t be used’ – that’s a waste.

You’ve mentioned different systems and US copyright law vs UK. Can copyright law really be negotiated on a national basis when consumption is international?

AG: It already is international. Much of our review is about EU law and we hope to have input to the review process in Brussels. Whether it needs to be standard is debatable. In the US you can’t get royalties for playing music in bars and hairdressers, but you can in the EU. You will see convergence, not universally, but it’s always in an upwards direction. Since WWII the tendency has been to ratchet upwards, because producers are more articulate than those who consume it.

NH: Is it realistic to expect intermediaries like ISPs to supply revenue to rights holders

IB: It shouldn’t happen in a compulsory way, but there are already ISPs who are negotiating licences, and it’s worth experimenting.

AG: ISPs loomed in our discussions, and the music industry saying that ISPs sold their services on the back of downloading, so the ISPs should look at that.

NG: What will happen is that the ISPs will become part of the content industry, and having a strong legal framework promotes that negotiation.

EG: Contributors should have nothing to fear from this new platform, it’s another way to get more revenue.

NK: we need to take account of open systems, that’s not distributed by major players that deserve remuneration.

Technorati Tags: changingmedia, Guardian, media 2.0, ORG

Session chair: Emily Bell, director of digital content, Guardian News and Media
Kevin Anderson, blogs editor, GuardianUnlimited
Gavin Newman, executive producer, Virgin Media Television
Jay Stevens, vice president, sales and operations, MySpace
Joanna Shields, president, international, Bebo
Celia Taylor, director of programming, Trouble, Challenge, Bravo and Bravo 2 for Virgin Media Television (by video)
Patrick Walker, head of video partnerships, Google

Celia can’t make it today so in the spirit of the session, her thoughts are delivered via the internet.

Celia Taylor, at Trouble have been working with UGC for over a year, didn’t analyse it just jumped in. Didn’t take a genius to see it was growing, launched Homegrown which is a UGC web site. commissioned a half hour weekly user generated content (UGC) TV show called MyTV. Didn’t know if they’d get the content to sustain a strong TV show but it’s been a huge success. Constantly try to move it on. Doing a TV show felt old-fashioned, so wanted to be more inventive, Sunday morning, MyShout, send in material and be on air in minutes. Experimental, only going a few weeks. Important – in world of TV to have a strategy where you can be inventive and creative is exciting. Have strong relationship with audience, communicate well with them. Important for Trouble, risky but rewarding.

In terms of rights, users accept they have to transfer all rights in order to show it. Obviously need the rights to broadcast, so have to be organised about that. When they started, had to get sign off from the board and let them know that here’s an element of risk and in terms of music it’s not always clear if it’s been cleared. If there’s something that someone complains about on the Homegrown site, they take it down. Contributors are generally thrilled to get their stuff on to TV or MyTV website, so no problems or accusations of exploitation – the opposite. They have made a significant number of TV shows, no problems so far, feel they have a good relationship.

People worry about copyright infringement, but came at it from a different angle. How can they work with copyright owners, so work with record companies, e.g. Oasis allowed people to download a track and make your own videos, and ran as a competition. Copyright owners working to connect with their fanbase. Done it with Justin Timberlake and Gwen Stefani. Also did it with movie companies, Rocky Balboa. Did paid-for campaign with Step Up, and potentially monetise this, which is what people are interested.

Come at it creatively first and foremost, rather than think about making money, has allowed it to be a success.

How do you monetise it? Come at it from a different variety of ways – MyTV was ad funded, sponsorship opportunities are there, advertisers working creatively thinking about how to use UGC for their brands. Find the right people to work with. Not going to be a huge pot of gold but it’s about ‘can I actually make UGC commercially viable as well as creatively viable”.

The future for UGC and Trouble as a company is quite exciting. Making Homegrown into a social network site, much richer experience. Still moderate it, and now with Virgin Media Television that’s opening opportunities and are very excited about what’s coming up.

EB: Not a large pot of gold. But Viacom took out a case against YouTube/Google.

SL: Important to remember YouTube isn’t just UGC, it’s an open platform so rights holders can put their own stuff up too. Important to recognise that it’s open, and it’s meant for east of contribution and sharing of video content on a global scale. Very clear guidelines and policies regarding content submission. Proud of the platform, and are fulfilling their legal obligation, but in many ways it’s an attack on the DMCA, and the safe harbour of ISPs that that provides.

People take different approaches – BBC and CBS are really taking advantage of it instead. Developing policy.

EB: Their approach is that they can put up poor resolution clips, and if you want a higher resolution one they’ll add advertising. But is Viacom going to do damage?

SL: It’s really about DCMA and this will affect all web domains that provide content to users, as they don’t have to police the content just take down content when they are informed that it’s infringing. But this might take several years, but most importantly usage of YouTube has grown, and the number of partnerships growing, so don’t think Viacom is going to impact the business.

EB: Is there an emergent model for giving back revenue?

SL: Absolutely. When our partners do well, we do well, and we distributed a lot of money to our AdSense partners. but there’s a lot of experimentation, so trying to engage rather than just extract revenue, so it’s about ease of use, trust of users, and it’s a place for them to express themselves. Perception of the need to monetise, but other objectives too, .e.g. might be promotional. So CBS uploaded clips from late night chat shows and saw a rise in audience numbers as soon as they did that .

EB: Two speed approach to copyright. Copyright is broken on the one hand, but the reach of copyright keeps getting extended. Who wins that debate?

SL: It’s important for content creators to think about clearance for all formats right at the beginning. But one thing that’s encouraging is the willingness of people to take risks, and think we’ll see a lot more of that, even whilst there’s uncertainty – e.g. mashups, how do you deal with that?

EB: Google used to be quite techy, now it’s much more about communities. How well is Google adapting to do that?

SL: Google is a very geeky, tech-driven company, and that’s good because we focus on our position as a search tech based organisation and where we’re adapting is in partnerships, bringing in people with different areas of expertise that don’t necessarily have a tech background. Company growing very quickly.

EB: Is there a danger now that there’ll be more concerted efforts by content producers that they will want to close you down because they are threatened?

SL: Depends on which services you are thinking about. I don’t think anyone can say that you don’t benefit from having more people sent to you via search. But YouTube, people want to keep control of their content. But we didn’t invent the internet, we just want to make it easier for people. But that’s threatening to those who prefer to keep things behind a wall. Those who understand this, they can partner with us in ways that protect their traditional business and extends their reach. So BBC is doing well – promotional, introducing their shows to new people, and providing people with content that they love to help build the brand.

You can’t just put stuff up, you can’t speak at an audience, you have to have a conversation with them. So Chelsea FC wanted to put up a clip from Chelsea TV, and they had a huge umber of comments, in all sorts of languages. Became a dialogue between them and their fanbase, so it’s a different environment.

EB: Joanna, UGC really is your site. How do you monetise it?

JS: 30m users of Bebo, 8.5m registered users in UK, largest social network in their demographic, under 30, mainly 16 – 24. Most interesting things about Bebo and its community is that the idea that kids go online to express themselves. Highest engagement of any site in the UK. Frequency that people connect with Bebo – great opportunity for advertising, brands, even politicians to engage the audience.

One of the things that’s different about Bebo is that much more progressed on the profile, and media is a personalisation tool. People post the music they are interested in, write blogs, share photos, all about personal expression. So when someone adds a clip from a media rights holder, it’s more about ‘this is what I like’. It’s not a channel. Need a different discussion – if someone uploads a video of themselves that’s great, but if it belongs to someone else, that’s a challenge. There’s impressive economics for brands, need to com up with a model to help them to communicate, and delivers revenues.

EB: When you talk about being in the profile business, is that the key driver for your economic health?

JS: Largest no. of page impression comes from profile views. Helping brands and media companies to promote their content. But we’re a new site, just 32 people running it. Almost 1 member of staff to 1 million users ratio.

EB: Do you publish your revenues?

JS: We don’t, but we are profitable. When people are spending that much time, it’s more about sponsorship than page views. We’re trying different models and we’ll take it.

EB: Hackneyed old question of fads. Is there just another format that will come along and everyone will migrate?

JS: There’s always a chance that there’s going to be a new technology that will challenge us. But when we do get a winner, it’s big, and sometime the things that bring people in are very simple. It’s about constantly innovating. At our core we’re a technology company, and we just try to perfect that technology and keep it fresh.

EB: Kevin, what’s your take on this?

KA: For news organisation, talking about monetising community it’s putting the cart before the horse, as they don’t have a community to monetise. Readers aren’t a community. News organisations are often still mired in anger and denial, and there’s a lot of fundamental outreach to do. They think it’s a ‘build it and they will come’, but there’s never been a field of dream on the web, you need outreach.

For news organisations, we’re in a competitive market with things we don’t understand. What was state of the art a year ago gets tired quickly and we’re not used to having to change technology so quickly. How often do we buy a new printing press? Gannett rolled out social tools, and found that blogging and social networking worked best. But you have to keep things new and fresh and try to be as nimble as a start up, which doesn’t describe too many news organisations. Lots of cultural changes to go through.

EB: Audience here comes from a one-to-many model. What are the basic rules?

KA: Biggest mistakes is not looking at what is of community interest for their audience. People think ‘news’, and that’s the first thing they go to, but perhaps that’s the last thing they should look at – there are opportunities in news, but mainly it’s orthogonal areas. How much lived experience do you include? Also, participation trumps celebrity – celebs who are not interested in engaging with their audience don’t make for successful sites.

Listen to your audience. Too many times, it’s like a zoo – we throw scraps out to our audience and let them fight over it. Need to have a feedback mechanism, needs to be a virtuous cycle, it can’t just be content out/comments in.

Questions
Pete Cranston, Oxfam GB: Will colonisation of these spaces by charities drive people away?

JS: Underestimate young people, they are dying to express themselves, and they are very serious about charities and the environment, and to build charities into the network and help them communicate is important. Last Friday had a Red Nosed Day competition to design the site, and the outreach that happened on the site was inspiring. They wanted to engage and help.

GN: It’s about supplying the tools to allow people to say what they want to say.

EB: Gavin, do you ever want to hasten the end of channels?

GN: We are an entertainment focus, so we’re about giving people an incentive to participate, and giving them a platform.

EB: Fame over fortune?

GN: We’re trying not to take the celeb route, but to nurture talent, and give people a voice. Whilst it’s entertainment it can still be serious.

Jemima Kiss: Ben Hammersley at a conference yesterday announced that nobody cares about media brands. His point was that what people are really after is the content. IF someone wants to watch lost, they don’t care which channel it’s one. Do brands matter?

GN: I think that’s quite true actually. Channels would like to put themselves as the brand people come to, but it’s the opposite, it’s the content people are interested in. So we work closely with the record labels and film production houses, so we’re allowing users to engage directly with the copyright holders.

SL: For those who don’t engage in content production, it’s more of a challenge. People look for Lost if you can’t get it.

EB: On YouTube?

SL: But that is a challenge for those who don’t have a certain relationship with the produce itself. You can have a branded presence, but people don’t go to the content via a linear model. The vast majority of our traffic comes directly to the video assets themselves, not to the names of the broadcaster. Important to have that information, to build a halo effect of your brand, but it doesn’t drive interest.

EB: Do you have to give people content rather than brands?

JS: Kids love brands.

GN: Brand is often more important to the industry than the users.

SL: We see that, brands that focus on their products do really well. Also brands look down their noses at unbranded content, often to their detriment. It’s about the idea, the creativity, and immediacy.

KA: The way that we think about brands is different to the way that consumers think about it. they don’t think ‘I have a brand relationship to Buffy’, no human beings think about brands like that. People don’t enunciate it like that – it’s an over-intellecutalised way of thinking about it.

EB: Kevin, you said audience isn’t a community. How would you define community?

KA: There was talk of an engagement model, and whether you look at blogging, or whatever, we’re moving away from a passive audience that consumes content, the sites that are successful have engagement. What we’re trying to do at the Guardian is to create various levels of participation on the site around our content, but give them different ways to engage, and whether it’s on-site, or off-site and we’re a hub, that’s the real shift, from being passive consumers to active engagement. Just thinking that because you have a loyal audience so you have a community is a misconception.

Technorati Tags: changingmedia, Guardian, media 2.0