The future of copyright in the age of convergence: Is a new approach needed for the new media world?

Abstract

In 2007 the European Commission finalised its proposals for replacing the Television without Frontiers Directive. The resultant Audiovisual Media Services Directive aims to provide a more suitable regulatory framework for the creative industries allowing it to benefit from the opportunities brought about by convergence. Convergence is the coming together of different technologies which have distinct functions to create one medium which performs each divergent function. The prime illustration of convergent technologies is arguably the coming together of telecommunications and broadcasting, through the internet and digital technology, so as to enable us to make voice telephony calls and watch television while sat at a computer. However, while convergence has created opportunities for the industry it has also created threats in that the same technology is also being used to infringe the copyright of content producers on a far greater scale. This is important as wide scale infringement may impact negatively on the creation of new works; as without protection from illegal copying the work has less economic value. It is argued that regardless of any other flaws the new Directive may have; its biggest weakness is not addressing the link between converged media platforms and the potential for increased copyright infringement. This work proceeds to evaluate whether the traditional approach to copyright protection is still the most suitable and whether in fact the arguments advanced in favour of this approach still have merit in the converged age. To this end an evaluation of a Creative Commons approach is provided in order to see whether this may have more advantages.

Keywords:

• convergence
• copyright
• commons

Notes

House of Commons, Culture, Media and Sport Select Committee, ‘New Media and the Creative Industries’, Fifth Report, Sessional Papers, 2006–07, vol. 1, p. 8; available at http://www.publications.parliament.uk/pa/cm200607/cmselect/cmcumeds/509/509i.pdf

Government Response to the Culture, Media and Sport Select Committee Report into ‘New Media and the Creative Industries’ at p. 1; available at http://www.culture.gov.uk/NR/rdonlyres/3E8E36E8-3B56-4219-89B2-0623C0AA8AF3/0/375268_GovResponse.pdf

Ibid.

Ibid. The lower figure is that suggested by research by Frontier Economics for the Department of Culture, Media and Sport, the higher figure is put forward by Ofcom. The government puts the figure at 1.8 million.

See note 2.

D. Bainbridge, Introduction to Information Technology Law, 6th ed. (Harlow, UK: Pearson Education 2007), 9.

Giving evidence to the Culture, Media and Sport Select Committee available in vol. 2 of their report ‘New Media and the Creative Industries’, available at http://www.publications.parliament.uk/pa/cm200607/cmselect/cmcumeds/509/6101711.htm

For example whereas before their consumers may have just been traditional linear broadcasters, today they could also be telecommunications companies.

That is, those that do not produce their own original content but buy the rights from the producers to broadcast within a define territory.

They then gain the secondary benefit of potentially higher advertising revenues by having the exclusive right to transmit a popular show.

Graham Lovelace quoted by Martin Croft, ‘Will Legislation Kill off Mobile TV Before it Gains an Audience? Marketing Week, 5 January 2006.

The English Premier League Overseas rights were sold for £625 million: see BBC News Press Release, ‘Premiership in New £625 m TV deal’, BBC News, 18 January 2007, available at http://news.bbc.co.uk/1/hi/business/6273617.stm (accessed February 2, 2008)

This is not confined to the UK; the enhancement of these services is a central tenet of the EU's i2010 Initiative. Recital 4 also states that ‘audiovisual media services offer significant employment opportunities … and stimulate economic growth and jobs’.

In the sense that all the regulations on one area can be found within the same document and thus making it easier for service providers and viewers to know the rights and obligations of each other.

Government Response, note 2, 81.

Art. 3j.

Art. 3j(5).

Recital 27a states the access to events for the purpose of short news reports is without prejudice to Directive 2001/29/EC.

Recital 4.

Recital 12.

Art. 2(e).

Art. 3(1)(2).

Art. 3(1).

Art. 4 also provides for a right of distribution.

Instead, we have the concept of a media service provider which is defined as ‘the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determine the manner in which it is organised’ Art. 1(6). A ‘broadcaster is defined in Art. 1(d) as media service provider of television broadcasts.

In Art. 1.

This right is provided to author of works under Art. 2(a) of the Copyright Directive.

Naturally the ability to forward on content, even that paid for, to friends is prohibited.

For an overview see Bobbie Johnson, ‘Test Driving the iplayer’, Guardian Unlimited, available at http://blogs.guardian.co.uk/technolgy/arcieves/2007/07/27/test_driving_the_iplayer.html (accessed July 28, 2007).

Apple's iTunes store does not permit downloads to non-Apple mp3 players.

Jonathan Richards, ‘Interview: Jay Adelson, chief executive of Digg’, Times Online, available at http://technology.timesonline.co.uk/tol/news/tech_and_web/article3075146.ece (accessed April 20, 2008). In the interview Adelson highlights how in relation to music, media executives are moving away from DRM and monetising content in other ways. As a replacement he suggests embedding files with technologies that monitor how many times it is downloaded or streamed and then using this information to set advertising rates.

This is replicated in the USA with the Digital Millennium Copyright Act.

s. 296ZB Copyright, Design and Patents Act 1988, although the ‘Gowers Review of Intellectual Property’ suggests digital copyright offences should all carry the same 10 year penalty as physical infringement.

In that they are simply trying to watch something that they have paid for.

If they have in fact even read these terms and conditions.

Interestingly, the Copyright Directive suggests in Recital 38, 39 and 44 that member states should be able to allow private use reproduction, particularly analogue copies. It is more concerned about digital reproduction because of the economic impact on producers but in this digital audiovisual age this distinction would no longer seem valid. In the UK, the ‘Gowers Review of Intellectual Property’ has called for reform in this area to allow for a private copying so that format shifting can take place. A consultation period on the proposals closed on 8 April 2008.

In a telephone interview with Lawrence Lessig, recorded in Lawrence Lessig, The Future of Ideas (New York: Vintage Books, 2001).

For example Woods v. Universal City Studios Inc., 920 F. Supp. 62 (SDNY 1996) concerning the film 12 Monkeys.

Anupam Chander and Madhavi Sunder, ‘The Romance of the Public Domain’, California Law Review, Vol. 92 (2004).

Ibid at p. 1341.

Garrett Hardin, ‘The Tragedy of the Commons’, Science 162 (1968).

Giving evidence to the Department of Culture, Media and Sport Select Committee documented in ‘New Media and the Creative Industries’, see Government Response, note 2, 23.

Be it by the private sector and the market; or by the state.

In the sense that it can be used without permission or where permission is needed it is granted neutrally. The latter meaning without regard to the user, there is no discrimination in allowing access.

All communication systems have been described as having three layers by Yochai Benkler. The physical meaning the hardware that runs the system; the code layer, meaning what runs the hardware and the content layer, what is actually transmitted. Yochai Benkler, ‘From Consumers to Users: Shifting the Deeper Structures of Regulation’, Federal Communications Law Journal 52 (2000): 561.

Lessig, Future of Ideas, 25.

Whereby the intelligence of the system is pushed to the ends, i.e. the user's computer or application leaving the network free to simply transmit data. As such it is not intelligent enough to discriminate between different application and content.

Content can be added without the consent of anyone, while the code layer is neutral in not discriminating between different forms of content.

Such as Director General Mark Thompson at the BBC.

This is the charge labelled against YouTube by Viacom who are seeking US$1 billion in damages. See Anne Broache and Greg Sandoval, ‘Viacom Sues Google Over YouTube Clips’, CNet News 13 March 2007; available at http://news.com.com/Viacom+sues+Google+over+YouTube+clips/2100-1030_3-6166668.html (accessed March 13, 2008).

Lessig, Future of Ideas, 249.

Judge Alex Kozinski dissenting in the US case of Vanna White v. Samsung Elecs. Am., Inc.; David Deutsch Assocs.; 989 F. 2d 1512, 1514 (1993) 27.

For more detail as to the different licences and the operation of the Creative Commons see http://creativecommons.org (accessed April 8, 2008).

This threat of litigation nearly ensured that, what in the author's view is one of the most creative musical works for some time, ‘The Grey Album’ by the producer DangerMouse never reached the public audience that it has. The album consists of the music of The Beatles' ‘White Album’ mixed with the lyrics of ‘The Black Album’ by Jay-Z.

Government Response, note 2, 23.

Roger Clarke, ‘Business Models to Support Content Commons’, SCRIPT-ed 4, no. 1 (March 2007): 59–71.

The options pursued currently in the market.

A typical example would be a person coming across a piece of content by a producer and, as they like it so much, they go and purchase the rest of the content if it is a series.

An example until September 2007 would have been said to have been nytimes.com.

Ashley Highfield, BBC Director of Future Media and Technology quoted by Tim Weber, ‘BBC Strikes Google–YouTube Deal’, BBC News, 2 March 2007; available at http://news.bbc.co.uk/go/pr/fr/-/1/hi/business/6411017.stm (accessed March 3, 2008).

See for example, Don Tapscott and Anthony D. Williams, WIKINOMICS: How Mass Collaboration Changes Everything (London: Atlantic Books 2007).

See note 30.

Informitv News Release, ‘Hulu Dawn Exploits Early Rise in Online Video Viewing’, Informitv.com 17 April 2008; available at http://informitv.com/articles/2008/04/17/huludawnexploits/ (accessed April 21, 2008).

Especially with a subscription service although; clearly there are some data protection issues here but these are outside the scope of present discussion.