Proposals to Change Rights Management in Britain. Where Will It End Up?

By Bill Jones 

The UK government has initiated a new consultation in a paper entitled “Copyright in a digital world – what role for a digital rights agency”. It wants to gather inputs through submitted responses, “town hall” meetings and government committee evidence on the role that a Digital Rights Agency should play in protecting and promoting the legal use of copyrighted content on line.  The overall goal is to make the UK the world’s favored destination for creative companies to grow and invest – i.e., a business-oriented goal.

This consultation is taking forward Actions 11, 12, and 13 in the Digital Britain Interim Report (November 2008).  This drew together various initiatives including the Gowers Review, which the government said it would implement completely. It is being promoted by Lord Carter, the recently appointed and created role of Minister of Communications, Technology and Broadcasting in the Department of Business and Enterprise and Regulatory Reform, and David Lammy, Minister of State for Higher Education and Intellectual Property. Both were appointed last October. Carter’s appointment is designed to bring governmental coherence to his topic areas. Many reports had been written, but there was no focal point for delivery.

This latest action brings focus on the recommendations to make sure that “something is being done,” i.e. delivery against policy recommendations. That it is being taken forward by two ministers under the aegis of three different departments is perhaps indicative of the difficulty government has in dealing with these areas, particularly when the law is somewhat clear but people ignore it, making enforcement difficult in a democracy where philosophical premises are regularly tested in political rhetoric, e.g. citizen’s rights.

Action 11 is about exploring the potential for a Rights Agency.  Action 12 is about distributors and rights holders funding a new approach to civil enforcement of copyright.  The 29 page consultation paper does not deal with specific legislative proposals under Action 13 to deal with unlawful P2P activity. Perhaps one role for the consultation would be to re-evaluate the validity of the recommendations, given that many viewed the Gowers report as flawed and that government rushed to accept the report in its entirety. We now know that it is creating headaches for those engaged in delivery.  

Meanwhile, in contrast to the shorter term nature of this consultation (2-3 years), the UK Intellectual Property Office has launched its own strategic consultation on the future of copyright.

In essence, this new governmental consultation is about finding a new boundary between consumers and rights holders, such that consumers have new and more fuzzy “rights”: they expect to be advised and educated on copyright, they aren’t immediately treated as criminals but persistent offenders are denied services (restrictions of their network access); and that the creative industry continues to get incentives to create content.

So it’s potentially a new regulatory approach that has to sit alongside the courts even though the government has stated that it is not a new regulator. It states that the agency should deliver a robust self-regulatory framework, including action to prevent and reduce online piracy. In effect, this moves the compliance and enforcement burden from the government and consumer to industry. The process mapping behind this must be quite complex, as must the feedback loops for appeals, countersuits, etc.

The specific narrowly drawn legislative proposal (Action 13) to significantly reduce unlawful P2P file sharing activity will be complementary to the rights agency.

This consultation looks at how a rights agency can help create an environment in which the creation of digital content is rewarded and innovation is encouraged. In doing so, it observes that changing business models are unclear and that few new models have gained significant traction.

Yet a very significant component of UK content is sourced from US and other countries. Interestingly, the example it quotes is that consumers are no longer prepared to be told when and where they can access the content they want (e.g., view a film at home after it has passed through cinemas), and why a TV show aired in US should not be available in UK today. So this UK consultation may attempt to deal with US business models as they operate in UK.

The consultation observes that consumers’ reaction to the facilities offered by technology has been to bypass commercial channels and go for free pirated routes, which the consumers regard as acceptable behaviour. So it makes it clear that for content markets to flourish stakeholders should come together to work out how to move forward.

It recognizes that it’s not up to Government to mandate how rights are traded or used. It also does not propose that Government should set up and run such an agency and states emphatically that it is not a proposal for a new government regulator.  Yet elsewhere it states that it could be a self regulatory body to be funded by industry contributions, and may have regulatory powers answerable to OFCOM (the UK telecommunications regulator). However, it believes that government can facilitate a market space where it would be simpler and easier for commercial and free negotiations to take place.

So it’s an invitation for industry to come together to create a body that deals with issues that is for industry to deal with… and that government will stay clear of intervention. This is at a time when increasing intervention in the economy is the order of the day.

The tacit suggestion is that it wants to encourage the market to develop in a way it wouldn’t develop of its own accord, in the same time scales. Part of that is to encourage rights owners to deliver to the consumer “inexpensive (or apparently ‘free’) and easy and legal” content.

So this consultation is about working out where the boundaries are (or finding new boundaries) between consumer needs and a flourishing industry.

They see this working alongside specific legislative proposals yet to emerge. That should create interesting process mapping and decision trees regarding copyright infringement particularly wide-scale peer-to-peer.

At its most ambitious, the government’s vision for the Rights Agency is that it will facilitate a major change of approach as to how content is provided packaged and sold to consumers.

The paper sets out the kinds of things which may be done, but emphasizes that it’s for industry to decide, since for those to work, they must be owned by industry.

So the key objectives of the rights agency are:

  1. Building digital content markets
  2. Changing the way that businesses work
  3. Educating consumers
  4. Reduction of online piracy

1 and 2 are for industry, government will plays its part in 3, and 4 is for industry to agree on its own mechanisms. In other words, this is an industry based agency, facilitated by government, in which all of the agency’s apparent tasks are about dialogue and communication. It’s a dialogue about a possible new body which will have dialogue at its heart.

One wonders how “industry” is defined and what the motivations will be for those players to finance, participate and deliver. But at least the government has delivered on its commitment by creating a space in which the prior actions may be taken forward. 

Bill Jones is CEO of Global Village Ltd.

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