Digital Copyright Exchange – How would that work, then ?

One of the most contentious areas of the Hargreaves proposals is the Digital Copyright Exchange.

Some critics claim that it’s, for example, “not well organised, nor is it always very clear”. Well, I’m not surprised – a system specification wasn’t part of the brief. You don’t get into the database design before the project gets the green light (unless, of course you’re the NHS).

What I’ve tried to do here is, I’m afraid, a rather technical document, outlining how this proposal could work in practice.

So what would the DCE look like ?

Firstly, this isn’t going to be a single database. The different media types have – as Hargreaves identified – different dynamics, in terms of production, consumption and replication. Most photographs are created by individuals, for example, and may be created for individual or collective consumption. They may be created under commission, or on spec.

Most feature films, OTOH, are created by large studios. And a number of individuals may have a “slice” of the rights – the director and leading actors may well earn “points” of the box-office. Those rights may be different for different distribution media – DVD sales, cable or network broadcast may each have a unique formula.
As an aside : most TV/media companies will already have complex systems to manage that side of the equation, so they should already have a means of referencing their intellectual estates.

Books typically fall in between, although again there are new media implications (eBooks, Audio Books) which may carry different rights (the actor reading the book, for example).

Music is different again with samples from one track often being remixed into a derivative track. The music industry – which of course contains relatively few major players – seems to have found a way to measure (and award royalties for) the rights between each of many samples in a track.

… And there will be similar unique requirements for other IP, such as games and software.

So Hargreaves – if I read it right – recommended that each medium has its own repository. In some cases (section 4.22) he sees that the UK element may be part of a global repertoire database.
Critically, however, he identifies that these repositories would be a “network of interoperable databases to provide a common platform for licensing transactions” (my italics).

The interoperability is important – there should be a common language to define the license transactions. From an automation perspective, it would mean that software – particularly to search for and evaluate licenses – would need defining only once. More importantly, upgrades would involve only once development cost.

Won’t this be very complicated ?

Of course. And Hargreaves identifies that the design shouldn’t be left to government – who don’t have the best track record in commissioning software in any case.

Again, critically, he identifies that any solution must be “open” and “standardised”. Well, goody, that leads us into the realm of XML. This is how a huge amount of the web is driven now. For those who aren’t familiar with it:

• It’s an open technology, that can be accessed through development languages, spreadsheets and web browsers.
• Subsets – to perform specific purposes – can be defined. So there’s a subset for companies to deliver their accounts to the Stock Exchange. The same format is used to submit Tax Returns. There’s another for Google to find the pages in your website (although it then ignores much of the content) – and this has a subsubset for images within the pages.
• Photographers may be familiar with Adobe Photoshop’s .xmp “sidecar” files. Yup. That’s XML again.

So the technology’s there. What is needed is the definition of what the content should look like. This is the bit that geeks love – at least, a special kind of geek – a Data Analyst. If you think this may be geek chic, take a look at the Dublin Core work.
These guys start by working out a “schema”.
After a few consultation drafts, the schema is proposed as a standard and (if it doesn’t break) eventually gets adopted.
There’s an example of this going on in your browser updates right now – as HTML5 functionality is gradually integrated. Different browsers (Firefox, IE, Safari etc.) are implementing these features at different speeds.

Anyhow… So yes, it’s complicated, but it’s not rocket science. (Although NASA does use XML as well ..)

If it’s complicated, won’t we lose control ? Will we be left out ?

I suspect that this maybe at the heart of some of the concerns.

The nice thing about using XML is that it can be extended as new conditions arise. So if a new class of rights arises, then that should be capable of definition within the standard.

And that means that the software houses can build software to deal with it.
So in the same way that Lightroom and iPhoto can upload to on-line services such as Flickr, they would (within a short space of time, and most probably through a plugin) be able to upload image reference data to the DCE. This may or may not include your metadata tags, so the images could be searched – the IPTC taxonomy (also, of course, XML) already defines content for many media.
There may even be open-source projects initiated to perform some of the rights management functions. And I’m sure there’d be an app for it.
So you (as a creator) would be have your copyright covered and (quite possibly) the capacity to reach a greater market, without having to do much more than at present.

IPTC also defines the creator and copyright holder (yes, I know these get stripped but the would be recorded on the DCE).

The big gap to be defined is probably the license terms. Again, this need not be difficult – in broad terms, you need to recognise that a license has been sold. But these have parallels in English Property Law.

• There may be constraints about the uses to which a photo can be put – no model release may mean no commercial use. In the same way that a covenant may limit a propert to residential use only.
• There may be an exclusive license for a period of time – paralleling a leasehold tenancy. Or a perpetual licence (effectively, the sale of a leasehold)
• Or there may be many different “tenancies”, as licensees are each able to reproduce the content for different periods and rents (and, in fact, different media)

All of these rights models are capable of being defined and modelled – and the rights recorded. Again, there’s an opportunity for software houses to help copyright holders to manage the licenses on their “property” – possibly including interaction with the DCE. Or a web front-end could allow manual recording of licenses.

Oh … and using XML, you aren’t limited to a single, fixed-length record. You can have multiple records (for multiple licenses), and not all fields have to be populated.

So all of this would save time in automating searches for those seeking to buy rights – if they wanted exclusive rights, then they could exclude images where a licence was already granted.
Similarly, searches could ignore those images where the content had already been licensed exclusively.

So … that’s how I read Hargreaves talk of removing “Deadweight administrative costs” (1.11). Not just the metadata entry (where, yes, the rights holder may have to do a little bit more work), or the requirement to record details of licences (although that could actually add value to creators*). But the time needed by the consumers of the content to track down the rights holder and agree a fee.
And that means that the real pressure is likely to fall on the Image libraries, who will find it difficult to justify their commissions, They will be competing with more agile competitors, who could have access to (if not exclusive licenses to) a massive pool of content.

[Edit 4/7/2011 10:30]

Moving On …

I can understand that people are concerned about this, but there are huge parts that have yet to be defined. And yet we know that they can be defined. I feel that creatives (or their representatives) need to participate in this process to get the solution we need, rather than assuming some master plan.

The difficult part to get through is that, as Hargreaves has said, that one size won’t fit all. So don’t pick on the bits that may be appropriate for music (or books) and extrapolate it to photographs. There’s a real risk that – like the blind men describing an elephant – we think that the DCS should only reflect what we want.
But each sector needs to define its own needs.
So, rather than worrying about Hargreaves’ agenda, we need to start a debate, so we can make sure the data structures have the right shape. Or the IPO will end up parachuting in something unworkable.

 

* Adding value to creators : If the DCE structure allows creators to record some of their own data, then there’s an inventory of IP assets – potentially in different (web) locations.
And if customers can enquire, then they won’t need to bother you with a question on their rights.
And there’s the potential for additional use licenses to be automated. No negotiation needed – the extension could be agreed, the money goes straight into the bank, and the license is recorded on the database.

There are actually about three business opportunities in this paper. I really must activate my Chennai development team …

Hargreaves Review – the Government response

Vince Cable has announced the government’s response to the Hargreaves Review, and to their credit (IMO), have adopted the recommendations pretty much in full. The government’s response can be found at http://www.ipo.gov.uk/ipresponse.

I’m glad about this, because I wrote a long post about it a couple months ago. I would hate for it to have gone to waste. I’ve had a quick scan through the response for the bits I was after. As with that report, I’m (perhaps parochially) concerned with Photographers’ rights.

Most of the media attention has been focussed on permitting families to “format shift” CDs and DVDs.

And (apparently) backing off the blocking websites enabling illegal downloads etc.

Most photographers will be upset that orphan works will be enabled – the issue, of course, that Stop43 so successfully campaigned on. But it’s not just that the goal posts moved with Hargreaves – the game moved to another pitch.

Bad News

Consider the impact of format shifting when applied to photographs. Section 6 of the response (on page 7) :

“This will include proposals for a limited private copying exception”

Although this is expected to cover ripping CDs and DVDs to iTunes, it isn’t a big stretch to think it could cover scanning and reprinting photos. Photographers may wish to adjust their business models accordingly….

Good News …

Now, I had to search quite hard for the bit that really interests me. The bit that could – if it works – really change things for photographers. It’s hidden away on page 12, in Section 9 of the response :

“The Government will, subject to establishing the value for money case, introduce a small claims track in the Patents County Court for cases with £5000 or less at issue, initially at a low level of resource to gauge demand, making greater provision if it is needed.”

and

“the Government will consider renaming the PCC to be the Intellectual Property County Court.”

Designed to cover trademarks and copyrights – such as photographs.

Once the Digital Copyright Exchange (and hence ownership of works) is established, this could mean creators have a very quick, very cheap way to enforce their IP rights. You won’t be hit with fees for the Daily Mail’s QCs if you lose.
And (potentially) it gives a route to a campaign for penalty fees – arguing negligent (or serial) infringers should have known that the image was copyright – because it’s registered.
Yes, I know that this contravenes the letter of the international agreements (which agree that rights holders shouldn’t have to jump though hoops), but in the real world, this could be very, very powerful. It works very effectively in the US with their Library of Congress registration.

In fact, this could be the best news professional photographers have had in decades.

Now, it would be nice if we could get copyright asserted and metadata stripping criminalised. But – if faced with recurring legal actions (and especially recurring penalty damages) – the big media outlets may find it more cost-effective to keep a track of where they stole the images from.
It’s going to be in their own interests to comply.
(Of course, it is possible that I’m my own little world here …)

The IPO should be pressured to make sure this happens.

And then it’s up to us. Use it or lose it …

The Hargreaves Report

A year or so ago, the Stop43 campaign (rather heroically, I thought) succeeded in mobilising photographers to mount a campaign that defeated a dreadfully conceived section of the Digital Economy Bill. (Some of the other aspects of that Bill – which did go through on the nod – seem to be collapsing in chaos). I was sufficiently outraged that I wrote to my MP about it.

To give some context – this article is really written from the perspective of a photographer. I’m retraining to be one at the moment.

The Hargreaves Report is a follow-up to that process – although Prof. Hargreaves was tasked with approaching the subject in terms of impact on the UK economy. I’m looking at this from the perspective of copyright (in which I have a personal interest) – which has a diverse nature in itself.  Hargreaves had to deal with the other forms of IP (patents, trademarks) as well as looking at areas not really dealt with at present (such as design) – and try to pull it all into a consistent shape.

On the plus side (I feel) he’s taken an evidence-based approach to the issue, rather than just listening to the multinationals with the biggest lobby budgets. And he’s spoken about the importance of making policy based on evidence, rather than lobbying.

In the case of IP policy and specifically copyright policy, however, there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes (10.10)

The Art of the Possible

Any solution needs to stand chance of being implemented in a workable way. This is the fourth review of IP in 6 years, and – as Hargreaves notes in paragraph 10.5 – many previous recommendations ‘remain locked in the “too difficult” file.’

So he’s limited himself to 10 main recommendations – some of which involve more detailed studies of certain areas. And most of which are at a framework level only – the detail will need to be hammered out in Parliament, if it gets that far.

He seems to be proposing a consistent framework, but that needs to cover diverse areas dominated by the interests of the multinationals (music, video) and individual local (taxpaying) creators (such as .. photographers).

There are some things I’d have liked to have seen – such as mandatory assertion of copyright. But that may be a fight for another day. And there may be other ways of skinning that particular cat…

There are compromises in some areas (some commentators have picked on the Berne Convention). I feel that in general those compromises could be outweighed – or even rendered redundant – by the benefits of an inexpensive (to the user), streamlined and substantially automated process.

I’m just going to pick out the way I read a few of the points.

Fair Use

This has a background in US case law, and was seen as a major reason for the review (following lobbying by Google). Google’s own (“Don’t be evil”) credibility in this area has recently had a bit of a setback in the US courts. (One intriguing aspect of this is our PM’s recent “unease” at laws “being made by the courts” – in this case our IP law would have been made by the US courts !)

Keeping UK law in step with the US is never going to be a workable solution (especially given the complications coming out of the EU) and Hargreaves has kicked this idea into touch as unworkable.

He does, however, propose an additional exemption for “non-consumptive use” – which would allow indexing and analysis of content. While I’d rather see this fleshed out a bit more, the intent seems to be to ring-fence a specific scope for use, rather than allowing an extensible definition of “fair”.

Digital Copyright Exchange

Stop 43 proposed a “National Cultural Archive”. Hargreaves has adapted this idea as a “Digital Copyright Exchange” – a group of interlinked databases that would allow registration of rights and licences.

This would allow rightsholders to be traced easily, and Hargreaves’ vision involves a high degree of automation. The inclusion of licence metadata should mean that there would be no excuse for an infringer using an image exclusively licensed to someone else. The creation of invalid orphan works would become more difficult as there would always be an authoritative reference to the copyright holder.

There’s massive potential for this. If the open structure proposed is adopted, then it should be easy to develop an automated service to register your images from an online service such as Flickr or SmugMug. Or by upload from from an asset management tool such as Aperture or Lightroom.

Hargreaves sees this as a limited-time opportunity to establish the UK as a natural home for this resource before the idea is implemented elsewhere.

The limited-time offer has another implication:

It is important to be clear that we are not advocating that Government should itself create this Digital Copyright Exchange. That way lies a nightmare of IT procurement followed by the birth of a white elephant. (4.30)

Dispute resolution (as to – for example – works ownership) could benefit from the streamlining that this resource could offer. An open interface – part of the design for rights negotiation – would also be suitable to develop third party (or open source) application tools to support this type of administration function.

Intermediaries

The DCE gives an opportunity for creators to interact directly with content consumers. There may be a role for Extended Collective Licensing, but – he says – this should be applied on a sector-by-sector basis.

It should not be imposed on a sector as a compulsory measure where there is no call for it, and individual creators should always retain the ability to opt out of ECL arrangements. (4.51)

He notes that Collecting Societies:

… can also harm competition because they are in effect natural monopolies. (4.44)

Sectors (such as photographers) not wishing to be subject to ECL might need to work to make sure these principles are observed, and that it isn’t imposed by officials seeking a “tidy” solution. A single voice for the creators would carry much weight here …

Another positive point (for creators) might be that the role of image and stock agencies is reduced – as transaction costs and barriers to entry fall, we should* see an increase in the proportion of revenue passed to the creator. (*in theory)

Orphan Works

The topic that started it all.

Giving a creator a simple, inexpensive (and ideally free) way of registering his work (via the DCE) should prevent the misattribution of his works as “orphan”. It doesn’t prevent metadata stripping, but the “diligent search” should reveal registered works.

Yes, your copyrighted work could be competing with amateur work (which hasn’t been registered – and so turns up as an orphan), but – I’m afraid – it’s got to stand on its own merits. Most importantly – as I read things – the rightsholder gets to negotiate who uses his images and how.

Enforcement

Hargreaves recommends a small claims procedure for copyright. This could be the most valuable of his recommendations for photographers, who are often seeking remedies within that range, and can’t afford the risks of carrying the cost of losing to a QC retained by a media conglomerate.

And particularly if the registration of the work in the DCE is considered prima facie evidence that a copyright infringement was deliberate or negligent, rather than just lazy. (Not actually a recommendation, but something the IPO or courts could easily infer).

I think that applying summary penalty damages to infringers of copyright material registered in the DCE will persuade the worst culprits that they need to behave more ethically. They’ll soon tire of sending QC’s up the M6 to sit in on unwinnable cases.

An Adaptive Framework

This is actually one part that worries me a bit.

Hargreaves identifies that lobbying can influence government policy to the point of inertia. Legislative time is at a premium, and – in such a technical area of the law – the results don’t always reflect the intent.

So he proposes handing greater powers to the IPO – a statutory responsibility to issue opinions to be given weight by the courts. It’s recognised that the IPO need to build skills in certain areas …

In addition, he proposes that a regulator be appointed to ensure the market functions fairly and efficiently – and (interestingly, I think) nominates Ofcom as the preferred option.

Format Shifting

This is one area that wasn’t really addressed by the original Digital Economy Bill.

Hargreaves’ recommendation is for a new copyright exception:

A limited private copying exception which corresponds to the expectations of buyers and sellers of copyright content, and is therefore already priced into the purchase, will by definition not entail a loss for right holders.  (5.30)

This is primarily aimed at music and video products.

However, photographers may note that this could be deemed to allow (for example) individuals to scan and reprint images. I wouldn’t get upset about it. It’s just got to be factored into the pricing. But it may be desirable to prevent the practice from scope creep.

Summary

Prof. Hargreaves hasn’t given everything that Stop43 have asked for – and that detail would never be within the scope of the review. I think he’s given it a chance, though. Some key wins are –  included in the recommendations – either explicitly, implicitly, or by a foreseeable extension.

If the proposals start to move through the Parliamentary process, then a lot more patience and lobbying will be needed (to ensure that the drafting doesn’t corrupt the intent). And still more if and when the DCE is being specified and implemented.

Or – if it hasn’t given the answers Dave’s mates were looking for – it could all get end up in the big, round “too difficult” filing cabinet …

[Edit:] You can find the Hargreaves report on the IPO website.

BPI “parasites”…

This is a catch up from a couple of months ago, when the BPI published a report on file-sharers. (Sorry the link’s only to Metro News, but it’s the most concise).

Now, I’m involved in the creative arts, so I don’t subscribe to piracy. All my software’s legit. I don’t actually but a lot of music any more – but I don’t download from file-sharers either.

But it never fails to amaze me how the record companies manage to keep a straight face when describing … well … anybody else as a “parasite”. These guys want me to pay again to listen to the CD I’ve paid for on my iPod (and Feargal Sharkey should be ashamed of himself for aligning with them). Some of us probably remember CDs being promoted as “Pure perfect sound forever“, and lots of us have rotted examples in our racks.

Basically, these organisations construct financial barriers to enter the market, so that – generally – it’s the artists with the best promotion team that sell the most records. Artist royalties tend to go towards paying off the advance (which is spent on recording studios) and marketing / promotion costs.

The artists only make real money from concerts. The record companies rant about “stolen” money – but they are the ones who’re losing, not the artists.

So (to bring this post up to date) it was nice to see some genuine talent rewarded at the Brit awards, rather than the plastic creations of TV talent shows and celebrity magazines (yes, there are some talented performers, but – with notable exceptions – I wouldn’t necessarily describe them as “creative artists”).