I blame it on a questioner at a presentation this week, who, in a tone that seemed to invite me to confess or “come out” asked me whether I was against copyright. I tried to explain that I was not against it on a principle, but that it seemed to me hugely irrelevant to the workings of a networked society involved in digital communication. It embodied the terms of trade of the Gutenberg world. Since everything else had changed why were we so determined that this should stay the same?

She seemed relieved, as one might be, having found a bigger heretic and being able to point to him and say “burn him first”! But she recalled me to a moment in 1985 when the Publishers Association appointed that wonderful publisher-lawyer, Charles Clarke, and myself as delegates to the European Commission’s Information and Society “Legal Observatory”. Accompanying Charles to Luxembourg, and playing Sancho Panza to his deft Quixote was a joy. The meetings were unbearable, and remained so for five years. Charles found windmills galore in the droit moral to tilt at, while on his orders I could be relied upon to propose an adjournment until after lunch, when it was permitted that like good ambassadors we could lie (and often sleep) abroad for our country. Never at any time did we hear an idea worth reporting back from here to anyone, and I observe that we initiated 25 years of legal reform of copyright provisions in Europe in progressively more obtuse efforts to fit copyright protection to digital content in ways that legislators have wrangled over and users ignored.

Charles, in his own writings on all of this, increasingly resorted to the dictum that “the answer to the machine lies in the machine”. I might claim ownership of the last three words, but I gladly cede them to his glorious memory, and to those who saw this as a sign that DRM was the answer, and that the object of technology was to create blocks for people using that technology. Again, I feel agnostic, or at least heretical. For me, the object of the technology is to enable seamless re-use in a networked society where the nature of communication is about repurposing content to make it mean something to other users. We are surely past the time when users can be re-educated to stop acts of re-use that are natural actions flowing from the functionality of the networks and nodes that they are using. This stable door is now wide open and the forces of law and technology will not bring the horses back again.

So what is our government doing about this? Hearing the scandalous news that Google could not have started here under current UK law we appoint the good Professor Hargreaves to form a commission and investigate (though we have not even digested the last commission, under the good FT editor Gower) to report back. And what does he want to do? Adjust the terms of trade, redefine “fair use” and revise the rules on the good ship Copyright, which long since sank. How ghostly is that? And who wants another Google? And one started here! This is a scandalous misuse of government funds and the debating time of an industry which should be concentrated on building out service values in the world that actually exists.

But what is this? Here comes Ms J K Rowling and her Pottermore supersite. She has as her advisor, Laurie Kaye (http://laurencekaye.typepad.com/), the best media lawyer in Britain (in my view, by a country mile). And it appears that here is no DRM. Just fair pricing and unrestricted availability. Download from here to any reader. (Does this make sense of the Overdrive – Amazon relationship? Note that O’Reilly distributes DRM-free via Overdrive). All her publishers are seemingly plugged into this solution (doubtless via revenue shares). Watermarking will enable Ms Rowling’s staff to detect, and, I hope, prosecute, those who take her work and try to earn their own income from pirating it. But she does not appear exercised if your kid shares some of this content with another kid in the same class. She has a brand, is developing it through this content (http://www.pottermore.com/en/press) and will make money from the site as a service, not from individual content sub-segments. She and her advisors are in tune with their times. The government, the Professor and many publishers are not. Time will deal with them. Meanwhile, at a time when the Web is decreasing rapidly as a proportion of overall internet usage (great article by Ben Elowitz on All Things D (http://allthingsd.com/20110623/the-web-is-shrinking-now-what/?mod=snhome) here is a good reminder of what web publishing can really mean.


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