They are at it again, you know. I have warned about this before. It seems that you cannot stop legislators making laws. They seem to think it is what they are for, while we older people know that the only way to preserve a reputation as a wise law-giver is to give nothing away. Nobody is happy with a patched road or a mended fence. Most Western legal systems are full of patched legal garments, most legislators are patching the patches, many of us know that only revolutions will allow a complete remake. The Sumerian agricultural revolution and the laws of Hammurabi. The Byzantine revolution and the laws of Justinian. The French Revolution and the Napoleonic code. The Digital Revolution and the redefinition of networked trading and ownership rights…?
Well, you certainly need a broad historical canvas if you are going to start a conversation in this area at all. One man of vision over many years in this field is the British media lawyer, Laurie Kaye, whose latest blog (http://laurencekaye.typepad.com/laurence_kayes_blog/) on 29 March sets out the battleground for the digital media marketplace arguments for 2015. And I share his respect for the enthusiasm of Commissioner Oettinger of the European Union, while adding a touch of personal despair at how long we Europeans have been about this Single Market business. Who amongst us is not frustrated by the limitations of the world we have now moved into? The librarians and researchers launched their London Manifesto yesterday to try to encourage the Commissioner in the right direction. (http://www.cilip.org.uk/sites/default/files/documents/The_London_Manifesto.pdf). Well they would do that, wouldn’t they? Yet more and more their impatience is just an echo of common place resistance and outright defiance in the market place.
And its not just copyright as ownership, its the whole content trading system of which copyright is the centre piece. As a good Brit I pay my BBC annual licence fee, but the rule of territoriality in a global networked society means I cannot view the videos I can see in London while I am in New York. Each of the media has a different rulebook, yet we live in a world of multiple and multi media developments. Above all, the interests of the players in the cycle of content creation and distribution are beginning to diverge, and great gaps, more significant than ever before, appear between what authors want and need, and the way in which publishers, ever protective of their business model, require for survival. The increasing dissonance that I hear as I listen to the strident voices protecting the copyright regime of the last century (representing a business model where publishers held the whip hand), and the equally strident voices demanding the freedom in the network to control for themselves the way authorial output is distributed is becoming distressing. Please, Officer Oettinger, what is a man to do?
In some ways this started in the academic world. When we write the history, Open Access will be seen not just as a way of allowing all citizens to discover the content of state-funded research. It will also be seen as authors wanting to use the network, with its ability to create huge access and impact for global populations, as a way of building reputation in the communities they target. The communities where they earn their bread and seek preferment. And is this so very different from the science fiction author who spoke to me recently about his publishing as a way to create an income stream – in his case from lecturing fees, public appearances, film scripts derived from the content, and commissioned writing for on and offline magazines. The book made the reputation, just as the scholarly research article does, and the key issue is not its royalty yield, but the breadth of readership and brand recognition that it creates. All too often the defence of copyright is the defence of the publishing business model, without a realisation alongside it that the role and value of the intermediary which is in question here. Networks, we always used to say, disintermediate intermediaries. In a world where it is so relatively easy to create your online eBook, and publishers are deserting the scrutiny of unsolicited manuscripts in favour of bringing successful self -publishers into contract as authors, publishers must – and can – demonstrate the value of their editorial preparation (something few now indulge in for cost reasons), their ability to discover talent and their excellence as reputation formers and mass marketeers. These are not all areas of strength for everyone, but they are becoming survival skills. Recall for a moment how proactive agents have been diminishing the rights granted to publishers in order to increase the flexibility of their clients. Recall for a moment how often now (Quebec City this week, Montreal airport last year and the Italian railways just before that) you can download an eBook from a library in order to read while travelling.
So when we want to debate the small print of copyright licensing rules we have to bear in mind that the revolution coming will have such violence that it will completely transform the way that longform text is created, marketed and distributed. No industry can be kept on life-support by virtue of making a concession on library lending while winning a point on fair dealing. We now need to resolve, as a matter of prime concern, whether territoriality in terms of making agreements about content is of any continuing use. We need to address issues that affect market receptivity, like net neutrality. We have made huge strides, thanks to the efforts of Lawrence Lessing, in writing into licensing a real recognition of origin and authorship while freeing up a good deal of re-use, and we need to look at ways in which the Creative Commons movement give pointers to future treatment in a licenced – and implied licence – network world. But above all we must urgently clear our minds and begin to redefine “ownership” of intangible intellectual property. For anyone under 17 this is a meaningless blog , and no one could explain it to them. Living in a world where the network sorts out licences and rewards on an M2M basis – machine to machine – this will never be an issue. Until then, different rules will govern downloading from those that govern streaming, and the lawyerly debate on whether that was a product or this was a service will create fresh intellectual property from the argument itself.
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