So much of what one hears in the public noise surrounding copyright is about consumer’s rights, file sharing, business models, lost revenues, etc. Digital rights management is often positioned in the space between the corporation and consumers. Does this emphasis distort or enable a sensible copyright regime, and does it focus technological developments in the right areas?

Maybe unwittingly, people’s and governments’ consciousnesses have been taken to the wrong space.

Is copyright a citizens’ right or a consumer right?

As was originally codified (after an existence in common law) in the UK Statute of Anne in 1710, copyright is a citizen’s right – either expressly covered under “IPR clauses” in the Bill of Rights/Constitution, Acts of Parliament, or Common Law. It is a tacit or explicit grant by the state to citizens of that state to be protected by the laws of the state. Citizens may assign that right to others, including corporations, which they often do under employment contracts, subcontract agreements, or publishing agreements. Its international dimensions are enabled by treaties and other instruments of international bodies.

A consumer, on the other hand, is an artifice of corporate channel management, i.e., it’s a class of customer aggregated into a business channel. That channel may find that it’s too expensive to deal with each customer individually.  In those cases, addressing customers takes place through volume channels and based on heavily researched profiles which act as surrogates for the individual consumer. Consumers purchase and use some goods and services generated within the economy. Consumers entered the lexicon during the 20^th century – much more recently than citizens – and became more prevalent as a category as business and economic theories and practice developed.

But more recently, the two have become interchangeable in many people’s and governments’ minds, as governments became increasingly interventionist in an individual’s life, whether through bills of rights, consumer rights, or human rights.

And as the “freedom” of the internet empowered people to behave differently and generated a modified notion of “free” introduced by economists’ language, advocacy groups argued for consumer rights while corporations and governments had to respond to this new commercial and political force.

In response, governments and the media have internalized copyright as a consumer right rather than a citizens’ right.

The “consumer” has entered the government’s lexicon in many ways, such as:

1. Assimilating the language of special interest groups
2. Generating laws to protect consumers in the hurly-burly of business and giving them consumer rights. Along the way, the citizen may be forgotten or become commingled with consumers.
3. The nature of government has changed so that delivery of public services now borrows significantly from corporate business practices. The citizen as an entity has been unwittingly forgotten. The law as it applies to the citizen becomes and afterthought.

The net effect is that nowadays governments often talk of delivering services to consumers and hardly ever to citizens. Those engaging with government policy makers must do the same to get a hearing. Business oriented consultancy groups have great difficulty advising policy makers in languages other than those of the consumer, business model and value chain.

In demographic terms, all of a nation’s people are citizens; some of its people are consumers of some product and some governmental services; most consumers are citizens (other than visitors and illegals); but not all citizens are consumers of government services.

The copyright world of music and entertainment is generally focused on the 8–35 year old urban resident. Other copyright issues impact other demographics. Consumer rights issues tends to be focused on this young urban demographic. This is where downloads, file-sharing, and so on are generally embedded. This is where certain behaviour traits are to be generally found. This is where price and rights management issues tend to manifest themselves most. And this is where knowledge of legality and illegality may be less pervasive.

For these consumers, the culprit is the enterprise or corporation that is stopping them from doing what technology enables them to do, such as getting access to free downloads.

And as music and entertainment consumers have sought increased consumer rights from governments (e.g., free downloads), which in turn applies pressure to change copyright law, so also have governmental agencies and spokespeople played back the same terminology of consumer’s rights. Yet they don’t probably mean that.

I recently listened at length to an exceptionally well-delivered presentation by a senior European Union IPR policy maker.  He spoke using very professional PowerPoint slides about consumers, value chains, business models, etc., but in reality he only spoke about some symptoms of copyright rather than an intellectually rigorous treatise of all of it. It wasn’t clear what problem, if any, he was trying to address.

Government policy makers’ thinking has inadvertently become muddled and befuddled as they tried to be helpful – perhaps with misguided motivations and conditioning.

In short, consumers have become confused with citizens.

This is just a minor part of the copyright universe, but perhaps it is enough to swamp other dialogue.

Is the debate between consumers and enterprises – often facilitated and arbitrated by governments or their agencies – the right one? Would the debate be what it is today, were it about the boundary between consumers and citizens, rather than the boundary between consumers and enterprises? I.e., a debate about people acting in differing ways depending on circumstances, with maybe an enterprise as an agent in the middle. This world is with us as user generated content has people behaving in differing ways depending on their motivations.

Who is looking after the citizen’s right? The citizen should be inserted somewhere into this copyright debate.

And rather than the value chain/business model approach of enterprises selling to consumers, which governments have adopted as their own model, one should be looking at the citizen/person in different guises. That person appears as a provider, a consumer, a citizen and voter.  In other words, someone who has both citizen and consumer rights, and in some instances has the interface monetized and in others not. It’s a two sided model with the user on both sides and, the individual oscillating between lean to and lean back or between author and user.

And into this emerges data about the individual.

Hitherto copyright and rights management has focused on the copyrighted object through digital object identifiers and the monetisation of that content as it moves between domains. With the user acting on both sides of the creative and consumption process in user generated content, and acting as a citizen rather than as a consumer in a corporate value chain, the focus should also incorporate digital identity in addition to digital objects, wherein the person assumes differing roles depending on his activity (e.g., citizen, author, user, publisher).

And as that unfolds, we’d probably see arguments from consumer advocates regressing somewhat, as the rebuttals and counters come back from citizens. We might also see governments addressing these issues differently if they were to introduce more citizens’ rights into the debate.

A clear test is to substitute “citizen” for “consumer” in government’s policy statements and see how ridiculous many of them appear.

In extremis, copyright is a citizen’s right and not a consumer right. Price is a separate issue, as is behaviour over the internet, as is the interpretation of the word “free”.

And that would then map onto the technological architectures to implement rights management. A rights management technological architecture that focuses upon the citizen’s digital identity would be very different from that which focuses on the rights attached to the object and on controlling a consumer.

This has profound implications for which architectural and technological solutions are chosen.

Bill Jones is CEO of Global Village Ltd.