reviewing Gowers part 2

Reviewing Gowers : Part 2

It might seem odd to continue an appraisal of Gowers' plans for 21st century copyright with an extract from a speech made in 1841 by Thomas Macauley but he did a far more brilliant job of setting out before parliament all the major issues.

'The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.'

Nowadays we would recognise patronage as employment, and the copyright of work produced by an employee is the property of his employer unless there is some contract to the contrary. This remains the case under existing UK law to this day.

Much else has changed. Macauley was warning about the difficulty of balancing the rights of the author with the interests of the public, and especially the advantage that would be greedily taken by unscrupulous publishers if given half a chance by the law governing copyright.

' I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot. On which side indeed should the public sympathy be when the question is whether some book as popular as Robinson Crusoe, or the Pilgrim's Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress? Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.'

Macauley was prescient. The degenerate injustice produced by monopolistic exploitation of copyright is indeed where we are today. You can blame technology for making the tools available for prolific copying. You can blame the web and anonymity for allowing illicit copying. You can complain about the ineffectuality of law and the difficulty of enforcement. Gowers does all of this, and comes up with a few tweaks in the hope it will somehow stem the rot. It will not, because he has not addressed the fundamentals. The public, right or wrong now perceive copyright itself as a form of legalised robbery. They have set about repealing 'unreasonable copyright' as a consequence.

This has taken 30 years to come to the boil. Remember the several OFT inquiries into CD pricing? Music CD's entered the market at nearly twice the price of vinyl LP's and stayed there even after volumes increased. Production costs were no higher and the public perception was that they were being robbed. They reacted by home taping onto cassette. The industry appealed for a tax on blank media. Everybody knew that artists received a tiny portion of revenues whilst the music industry grew fat.

Some time around 1985 I was sent to photograph a small 4-man startup company in Soho for a computer magazine. At a time before the internet had penetrated the awareness of any but a few proto-geeks and state of the art modem speeds were 9600bps and 2400bps standard, this company Cerebus had adapted a music compression technology that allowed reasonable audio quality tracks to be downloaded from their server. They'd knocked up a DOS desktop jukebox application that managed the user's account, did the downloads, played them. They anticipated they would offer free tracks from aspiring bands, plus premium 'pay for' content from star artists at 50p a track. They got the man from Sony along who watched and listened attentively. Would Sony buy it for £1m? 'Why on earth would we want to do that when we can sell CD's for £10 each?' was the reply. I never heard of Cerebus again. So much for innovation.

A decade later Sony EMI and the other music majors engaged in a court battle to kill Napster, the nexus of millions of illegal music downloads. Passing over the inconvenient fact that Napster's defence showed CD sales to have increased in N.America by 30%, allegedly due to the increased exposure to diversity c/o Napster, their claimed losses ran into $billions.

Does anyone seriously believe that the music companies did not bring this on themselves? Had they halved the prices of their products they would never have stimulated a global machinery of theft and would have sold far more. Had they been less complacent and got off their A&Rses they could have had a cheap online download system 15 years before iTunes. Napster need never have happened. Monopoly stifles innovation, you see, Mr Gowers.

Much the same has happened across other media. Computer software, film and video, now photography. Wherever the technology existed to cut production and delivery costs, if old media persisted with pricing to keep it in the manner to which it had grown accustomed, the public hacked, cracked and stole it instead.

Nor is such thievery confined to dodgy teenagers in bedsits. Everybody was and is at it, in some shape or form. When FAST was founded to combat the illicit use of unlicensed software they estimated 80% of UK companies were on the fiddle. Every pro photographer knows of large companies, flagship publishers, that daily steal material with the intent of avoiding payment unless caught red handed. IPR theft is ubiquitous in our society, and is sometimes corporate policy. It has become like the shoplifter's they-can-afford-it excuse for stealing from supermarkets, only individuals are now seen as fair game too. What they don't know won't hurt them, and the shareholders will love the results.

Is this not exactly the degenerate state of unreasonable copyright that Macauley warned about? Is not the rights-grabbers' contempt for authors' copyright, which I described in part 1, a symptom of the same malignancy? And Gowers has supinely washed past all of this with just a nudge of the rudder, full steam ahead for the iceberg.

Right now, despite their enormous profits, old media companies are in trouble. They make products that are nearing the end of their lifecycle. Broadcast, print are last millenium technologies that will slowly be displaced by newer cheaper web-based forms. But what is more fundamentally under threat is architectural, not technological. Their market power relies upon their position atop a pyramid of saleable copyrighted information from whence they can dictate terms. They survived and sometimes did well on the web, adapting their existing business models to take advantage of global reach. They extended their monopoly and got richer still from the control of new distribution and marketing channels. But the next stage of web evolution, Web 2.0, is something else entirely. Web 2.0 is an experiment in circumventing them by making alternative, more equitable and holistic structures. This isn't an excrescence of technology but an expression of cultural wants that are unmet and frustrated by the status quo.

Wendy Grossman points out that all of us are net consumers of intellectual property. This is absolutely true: even the most prolific creators watch more movies, read more books and magazines, look at more photos and websites, listen to more music than they ever create. And it is all made by someone else. She asserts that this is a cogent argument for resisting the endless calls for the 'maximalisation of copyright', since that can only constrain the diversity of cultural experience for us all. We as individuals desire the most open and unrestricted access possible; individually and collectively we benefit from access.

This scenario has a flipside too. As individuals, more and more of us are becoming creators and participants within this churning sea of information. Bloggers, citizen journalists, photographers using systems like Flickr, videographers, authors of programs, wiki and web page authors, forum contributors. All this is creative endeavour at some level and all of it is its authors' copyright, and yet it is freely shared. Money seldom changes hands directly between consumer and creator. There is a tacit understanding that the quid pro quo is mutually beneficial, even if exchange is frequently unequal. Such emancipation and mutuality was and is a fundamental of the web; sharing more or less freely is a consensual cultural ideal. Moreover the majority of this new global army of creators has little need of income. Most have day jobs and this endeavour is primarily about recreation, self-fulfilment and peer approval.

Taken together, these two aspects have set about challenging copyright itself as a mechanism of exploitation of intellectual property. Web 2.0 is home to an emergent libertarian and often liberty-taking 'free culture' with its own heroes, philosophers and organisations that regard intellectual property as, if not exactly theft, community property and asset to an extent that is antagonistic to the monopolistic pay-for model of big media. Advocates like Richard Stallman and Lawrence Lessig have pioneered new forms of licensing that allow for participation and free exchange and usage. Copyright may be retained but with the purpose of outlawing monopolistic commercial exploitation, not facilitating it. This is a role reversal of epic proportions for copyright.

In some areas, notably Free Open Source Software released under GPL or similar, this participatory sharing approach has been highly successful. Linux, Apache, most of the software that sustains the web itself is co-operatively farmed and Microsoft is the also-ran. FOSS gives away its software to encourage uptake and accelerate evolution through iterative development and testing by anyone who has a mind to contribute and improve the programs. But this does not mean business models are absent, simply that they are indirect. Rather than money changing hands for usage of intellectual property the community itself generates requirements that are met by its more skilled members in exchange for fees. Training, support, bespoke development can all be purchased by those who have not the time, inclination nor skills to DIY.

This is a paradigm shift in intellectual property creation that was simply unimaginable before the web existed, and is only now beginning to come to maturity. This participatory web does not tidily divide into ivory-tower producers and consumers, the simple hierarchical proposition of old media. What's more this web culture is spreading out beyond the web. It will eventually change everything it touches.

This is Web 2.0. Gowers gives one brief paragraph to open source software and concludes it has problems of its own, and another to Creative Commons licensing as a mildly interesting innovation. That seems to be the extent of his meditation on what he describes in his conclusion as Britain's 'third industrial revolution'.

This is not, as Gowers seems to think, a minor difficulty, a glitch that can be regularised if only the rules can be tinkered with a little to appease opposing interests. The nature of Copyright itself is becoming a dirty war of mutual attrition where both sides maraud and disregard and work around whatever frameworks governments seek to impose.

It has been said that the net treats censorship as a malfunction and maps around it. Law itself is censorship, of behaviour. So while the RIAA & MPAA hit squads pick off filesharers with legally dubious damages claims that nobody can afford to contest, free culture coder cadres devise new ways of making distributed, encrypted and cloaked networks to outwit them. Every ingenious and inconvenient DRM technology recruits new hackers to meet the challenge. Jurisdictional chaos reigns supreme. Nor is it even clear what side combatants are on nor what their objectives are, for we are them and they are us. Check your own hard drive before protesting this.

There will be collateral damage unless close attention is paid to what is evolving rather than what was intended. Maybe things have progressed since Macauley's day so that we may now rely on the leisure activities of part-timers and forget about remunerating 'men of letters'? Well maybe, but we won't find out until the pro's have been annihilated by lack of income, and that's about the only thing free culture and corporate culture actually have in common. Copyright is now an ideological conflict zone where neither adversary is entirely honest. As always the main casualties are the little people who live in the middle. In this particular conflict the unintended victims headed for the virtual limepits are individual professional creators, and especially photographers. Gowers has simply failed to do anything about this. He should have made their self defence a priority, but what we got is 'Peace in our time'.

In the final part of this blog I will look at how I believe the Gowers proposals are going to interact with this escalating conflict of interests.



Whether you charge can affect the damages awarded in court, but that's main difference under the law. It's still a violation if you give it away -- and there can still be serious damages if you hurt the commercial value of the property. There is a USA exception for personal copying of music, which is not a violation, though courts seem to have said that doesn't include widescale anonymous personal copying as Napster.

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