Dear reader
I attended the recent FT Digital Media Conference 2013. As ever, it was full of useful insights and I highly recommend viewing the sessions which are available on demand here. Mostly, it was about incremental change. There were lots of stats and discussion about the year on year growth of digital as a % of media businesses, the proliferation of VOD platforms on TV and mobile, the presssure on advertisers to integrate their ads into content on games and other media to keep viewers' attention, the ongoing challenge for newspapers to monetise their content and generally for traditional publishers and others to transform their existing business models. According to a couple of speakers, digital is now 30% of media businesses and Martin Sorrell of WPP said that 34% of WPP's business is now digital.
But the one theme that, for me at least, really stood out, was data. You name it - big, open, smart, social, CRM and every other kind of data was present in almost every panel. What was really interesting was not just the fact that the gathering, analysis and use of customer and other data gathered online is a core marketing function, it's the way that data management is now at the very heart of business. The language and discourse of media business has changed. One speaker talked about the need for data scientists who can take raw data and push it through their analytic tools and algorithms. Another said "organisations are increasingly data-centric". A representative of The Weather Channel described their business as "a data science and technology company as well as a media company."
Whilst much of the discussion was about customer data gathered via the web and social media, the issue of data is much broader. The availability of open data, the midata initiative and other data sources makes a strategic approach to data management absolutely essential.
My legal eagle readers involved in this area of the law will already have their eyes on the draft EU Regulation which will replace the existing regime set out in Directive 95/46/EC. It contains measures that will harmonise data protection procedures and enforcement across the EU, and aims to achieve consistency with the existing system for ensuring privacy online, which is set out in the Directive 2002/58/EC (E-Privacy Directive).
I cannot claim any great insight in saying that data protection and privacy is really important to all organisations. Not "just" at the level of legal compliance but at the heart of the brand - just think about Bloomberg's current problems with disclosure of user's data. Sometimes it takes time for the message to sink in. But my tip for anyone looking to build their legal career in the online sector is become a data law expert.
Against this background, the Regulation will extend the impact of data protection law. For instance, it's expected to have a significant impact on data controllers and processors who are active within the EU, including many who are located outside it but who monitor the behaviour of EU consumers, or offer them goods or services online. Data processors will now explicitly be included in the scope of the data protection regime.
In addition, the definition of "data subject" will now make it clear that "personal data" includes all data that can identify an individual, whether that data is held by the data controller himself or by a third party which, in combination with the data held by the controller, could identify the data subject.
So for data scientists and data lawyers, things are getting to get really busy.
Have a good week,
Laurie Kaye
Dear reader
If you're a regular reader, you may remember that during the Hargreaves Review process, one of ideas floated was to introduce a broad, US style 'fair use' exception into UK copyright law. It fell at the first hurdle because 'fair use' is not one of the permitted exceptions under the EU Copyright Directive and would therefore require amendment at the European level.
However, an element of 'fair use' could creep into UK copyright law by the back door if the Government proceeds with its stated intention of introducing an exception to permit use of a copyright work for caricature, parody or pastiche. It's certainly allowed to do so under the Copyright Directive. And with the passing into law of the Enterprise & Regulatory Reform Act this week, a technical amendment has been made which would allow new copyright exceptions to be passed by secondary legislation into UK law.
I'm all for creativity but I haven't really seen a strong evidence-based case made that the absence of a parody exception has been a significant barrier. The Intellectual Property Office recently published three research papers on the subject, including this one here. They're worth reading.
So what's the point? It's whether commercial use is or could be permitted under a parody exception. Both the US 'fair use' exception and the proposed parody exception cover the creation of derivative works. Creation of a derivative work for commercial purposes can, in certain circumstances, be allowed under US fair use, particularly where the derivative work has a 'transformative character'
Whilst it is understood that the proposed parody exception under UK law will be for non-commercial purposes, I wonder whether that will always be the case.
In this context, it's worth taking a look at a recent US decision on fair use in a US Court of Appeals decision Cariou v. Prince which I read about this week on trusted info source, PLC. It reported that the plaintiff, photographer Patrick Cariou, published a book of photographs entitled Yes Rasta, featuring portraits and landscapes taken while he lived and worked among Rastafarians. A few years later, artist Richard Prince altered and incorporated several of Cariou's Yes Rasta photographs into a series of paintings and collages called Canal Zone that was exhibited at the Gagosian Gallery. The gallery also published and sold an exhibition catalog with reproductions of Prince's paintings.
In 2008, Cariou sued Prince, the Gagosian Gallery and the gallery's owner, alleging that Prince's Canal Zone works and the exhibition catalog infringed his copyrights. The defendants raised a fair use defense.
The Second Circuit Appellate Court found that Prince had used key portions of certain of Cariou's photographs but that, because in 25 of his works, Prince transformed Cariou's photographs into something new and different, this factor weighed heavily in Prince's favour. To put this in perspective, the Court did look at the impact of the derivative works on the market for the source works. It concluded that Prince's works and the show of his works did not usurp the market for Cariou's photographs because Prince's audience is very different from Cariou's. Also, none of the evidence suggested that Cariou would ever develop or license secondary uses of his work in the vein of Prince's artworks.
What all this shows is that the devil is in the detail in getting the balance right between rights and exceptions. As my good friend and the Publisher Association's esteemed copyright Counsel Hugh Jones says, "beware the law of unintended consequences."
Have a great Bank Holiday.
Regards
Laurie Kaye
p.s. just a quick final note to say that the Laurence Kaye team are settling in at our new home at Shoosmiths LLP. You can see what we're up to here.
Dear reader
Traditionally the reproduction right - covering copying a work - has been the cornerstone of copyright law. The scope of that right in the digital age has been called into question in the Supreme Court's decision in Public Relations Consultants Association Limited v. The Newspaper Licensing Society.
The Court looked at whether clients of media monitoring agency would need a licence to view a media monitoring report on screen. If they downloaded it to their machines or or printed it they clearly would. But, said the Court, simply viewing a web page was just like reading a book and it's never been an infringement to view or read a copy of an infringing copy in physical form.
Of course, a service provider like a media monitoring agency would need a licence to make press cuttings available online for its end-users. But if the growth of 'cloud-based' services renders redundant the notion of download, the end user's "consumption" of a work by its temporary display on screen will form an economically significant part of the service which, unless the European Court of Justice is in disagreement, will not require a licence.
True, even if the end user doesn't need a licence merely to view on screen, the content owner could still seek argue in its negotiations with the service provider (SP) that there's value to the SP in being able to make the work available to its end users, including on-screen use, and so the licence charged to the SP should reflect that. But you can see the counter argument.
The Supreme Court decided that article 5.1 of the Copyright Directive "...extends in principle to temporary copies made forthe purpose of browsing by an unlicensed end-user." So this is a really important issue, and hence the Supreme Court's decision to refer the matter to the European Court, which has already looked at this point in (Case C-5/08) Infopaq International A/S v. Danske Dagblades Forening (“Infopaq I”) [2010], (Case C-403/08) Football Association Premier League Ltd v QC Leisure and Others and (Case C-429/08) Karen Murphy v Media Protection Services Ltd (“Premier League”) [2012] 1 CMLR 769; and (Case C-302/10) Infopaq International A/S v. Danske Dagblades Forening (“Infopaq II”), 17 January 2012.
In thinking about the outcome of that referral, I'd like to add a couple of comments, including some personal recollections. I took part in the negotiations of the Copyright Directive - 2001/29/EC. In particular, I recall a meeting between representatives of the large Telcos on the one hand and rights holders on the other some time around 1999 or 2000. The focus was Article 5.1 of the Directive, the one on which the Supreme Court focused in this case. It was like two nations each struggling to understand the other's language. The Telcos were concerned about being sued for copyright infringement because technical, temporary copies of works being carried on their networks were being made in their routers and server caches.
It was these these types of technical, temporary copies without independent economic significance which were the focus of Article 5.1 of the Directive. It carves out of the reproduction right "temporary acts of reproduction which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary; or (b) a lawful use."
As I recall, the majority of the discussions around Article 5.1 concerned these kinds of temporary copies made by the Telcos' networks and machines. True, the reference to "lawful use" pointed to other, "off the network" technical, temporary copies such as cached copies in a computer's memory which were incidental to some other "lawful use" e.g. prior to a download. But this was not the central point and the notion of "lawful use" was seen in the context of technical copies which happened in the course of some other licensed activity.
True, the Supreme Court has said that European case law has interpreted "lawful use" more widely. Effectively, the Court said that if someone does not need a licence to view a work on screen, then technical copies made the user's machine are "lawful". The Court said that "..the far broader meaning given by the Court of Justice...to the concept of "lawful use" makes it impossible to confine the scope of the exception to the internal plumbing of the internet. Once it it accepted that article 5.1 extends in principle to temporary copies made for the purpose of browsing by an unlicensed end-users, much of teh argument which the courts below accepted unravels."
Getting the ambit of the exemption in Article 5.1 is of fundamental concern for everyone in the digital value chain. It should also be remembered that the debates around Article 5.1 should be seen in the context of the exemptions from liability for 'mere conduite', 'caching' and 'hosting' in the E-Commerce Directive which was going through the legislative process at the same time.
The issues here are complex and what's important is that we 'look through' the technology to get a uniformly agreed and accepted view of preciselly what "lawful use" means in the world of digital copyright. We must get the balance right. Clearly, no-one seeks to turn internet users into copyright infringers. Equally, it's important that there isn't a legal hole in digital content services.
Have a good week,
Laurie Kaye
Dear reader
I owe you an apology for my radio silence. But, along with my colleagues Mailin and Sherif, I've been busy with my own 'digital shift', following my firm's amalgamation at the beginning of the month with national law firm Shoosmiths where we've established a publishing and digital media team. Details here. I'm pleased to say it's going really well and our new collegues have been tremendously supporting and welcoming.
The 'digital shift' doesn't stand still. In just a couple of weeks, we've had some important US Court decisions on the scope of the US 'first sale' doctrine (Kirtsaeng v. John Wiley & Sons & Capitol Records v. ReDigi), more of which in another post. We also about to see the details on the European Commission's settlement deal with Google following its investigation into its search business.
Tomorrow, I'll be at the 'Digital Minds' conference and on Tuesday I'll be at the London Book Fair where digital is, of course, high on the agenda. As well as looking around and catching up with all you 'movers and shakers', I'll be running a seminar on Tuesday April 16th at 10 am with Neil Blair of The Blair Partnership and Pottermore and Eric Huang of Penguin on the theme of "21st century publishing - multi-platform, IP-centric" (details here) and at 2:30pm that day I'm a panel member on "What should authors, agents and rights' professionals know when making deals with film and television companies in the brave new digital world?" (details here).
So I hope to see some of you at one of these events.
Anyway, as a result of time passing, I didn't quite get to the end of my 10 themes of the 'digital shift'. As a refresher, you can find a list of them, together with the first 7 themes, here. So I thought it was time to complete the list. I'll keep it brief and just focus on the big picture.
T8: It’s a mobile economy
The continuing growth in mobile devices – tablets and smartphones in particular – means that mobile commerce and mobile advertising will be an increasingly important part of the digital economy’s landscape and in which it will be vital to create the right advertising products and business models for mobile.
T9: Everyone’s in the technology business
I remember a meeting some time in 2000 - (remember Y2K and how the world's IT infrastructure was going to collapse on the chime of Big Ben at 00:00?) - between the representatives of the ISP industry and and the creative industries discussing the Copyright Directive. The topic under discussion was the copyright exception that the ISP's wanted to ensure that copies of copyright works cached on their servers could not be treated as acts of reproduction needing the copyright owner's permission.
The meeting was a great example of how the worlds of intellectual property and technology lacked a shared vocabulary and vision. That's changing. Slowly. But the drive to collaboration and sharing through machine to machine communications and API's is relentlessly driving the two together.
The media, entertainment and information industries are now all in the technology business, including learning to borrow programme and content development techniques like 'agile' from the software industry.
T10: It’s a borderless world
This is our number one challenge. National laws, but A global medium. We see this every day. How do we create an effective regulatory framework for the press in the UK when Blogs publish the same content overseas? How does a digital platform based in country A set its standards for data protection compliance when it targets consumers on an international basis with EU and non EU laws often setting different requirements for compliance for user consent?
The answer, of course, is a slow but inexorable move towards harmonised standards of 'hard law' (e.g. through a forthcoming revision to EU's data protection legal framework) and 'soft law' in the forms of voluntary codes of practice and an increasingly international outlook of the Courts.
Have a good week,
Laurie Kaye
Dear reader
In my last post, I looked at the ‘digital shift’. In this post, I'm going to list the ten overriding, interlinked themes which characterise this shift and shape digital media’s legal agenda. I'll also describe the first 3 themes. I'll look at the remaining themes in my next two posts. In future, when I blog about a new case or legal/business development, I'll 'tag' the post with the relevant theme(s) so that, hopefully, we can continue to see the digital wood for the trees.
So here are the themes:
T1: Digital disruption in the value chain
T2: Being IP centric, platform agnostic
T3: The rise and rise of social media
T4: The digital citizen/consumer calling the shots
T5: Mind the [digital] platform
T6: Collaboration is the name of the game
T7: Consolidation & Fragmentation
T8: It's a mobile economy
T9: Wer'e all in the technology business
T10: It's a borderless world.
I'll now turn to the first three:
T1: ‘Digital Disruption’ in the value chain
Digital disruption is a fact of digital media life. The disrupters are everywhere.
They’re new players, often ‘born digital’ businesses, which enter an industry and create an entirely new business which didn’t exist before e.g.a new consumer products business which use ‘the crowd’ as their ‘R&D’ division to identify new inventions and product or a new entrant like anobii, a social platform for book recommendations.
They’re also new players who enter an industry and perform an an existing activity in the value chain better and/or differently to existing incumbents and in the process displace them.‘Kobalt’ is an example, a new online platform which offers a service to streamline royalty payments to artistes.
But ‘digital disrupters’ are also existing players who reinvent themselves and in the process even cannibalise part of their business in order to create a new business and income stream e.g. Getty’s ‘istockphoto’ service.
So what’s on the legal agenda with TI? They include the legal structurees which underpin business models and the contracts and business relationships which implement them; applying existing laws to new models e.g. when is a ‘sale’ of a digital work a licence or vice versa? (See here); & watch out for developments in the US case of Capitol Records v. ReDigi which again examines whether a digital file is a licence or a digital good.
T2: ‘IP Centric, platform agnostic’
Increasingly, content owners are “getting” the fact that they need to take a ‘360 degree’ approach to their intellectual property (IP) in a multi-platform world, multi-format world. For instance, a number of leading publishers have recently created new roles with responsibility to transition publishers into being multi-platform organisations. Often, the people appointed come from outside the industry - games, television etc. - with cross-platform experience.
At the heart of this '360 degree’ approach is a ‘format/platform neutral’ approach to IP and new products and services. In turn, this demands skill in being innovative with IP creation and exploitation, building new business models etc. It also puts IP rights, especially copyright and trade marks (brands) at the heart of the business.
T2’s legal issues include the role of copyright and the copyright reform agenda (Hargreaves etc.), including proposed changes to copyright law. The bigger picture is how copyright continues to maintain the balance between rights holders, users and intermediaries. This is a dynamic area. Only last week, Germany's Parliament have introduced a new 'neighouring right' which gives print publishers the right to licence their web content. This is a hugely significant development.
More broadly, IP covers a whole range of rights including those in brands, designs and patents. These can be used both offensively - see in the ‘patent wars’ in the digital space and defensively. No creative company can be without an IP strategy
T3: The rise and rise of social media
It's already a truism to say that social platforms such as Facebook, Linked-In, Twitter and Pinterest are playing an increasingly significant role n business. For some, these platforms may simply be relevant from a marketing and PR perspective e.g. a company having a FaceBook page to build engagement with its customers.
For others, especially those in the media and information sectors, these social platforms are becoming increasingly integrated into their business. For instance, digital services provider ‘Soundcloud’ are embedded within FaceBook so that FaceBook users can launch sounds on SoundCloud rom within Facebook. This integration process is two way – Facebook is also embedded into these services.
So what are the ‘T3’ legal issues? Linked to social media, but not confined to it, is the whole issue of tracking consumers’ behaviour online and using this data in an aggregated way for marketing and
advertising purposes. This brings us to the heart of the debate about privacy and data protection.
Also, the presence of celebrities, public figures and others on social media such as Twitter makes reputation management an increasingly important area, which from a legal perspective brings defamation into the picture along with the laws and regulations governing data protection, consumer protection and marketing and advertising.
I'll continue this theme in my next post.
Finally, if you enjoy my blog post, please share it with colleagues and anyone else you think may encourage them, with a suggestion that they might like to subscribe.
Have a good week
Laurie Kaye
Dear reader
In my last post, I looked at the first three overriding themes of the 'digital shift'. This time, I'll look at the next four.
T4: The digital citizen/consumer calls the shots
Ultimately,everything starts and ends with the consumer who wants to enjoy a wide range of creative products on the new digital devices, moving seamlessly from literature to films, games, music and more. More than that, the reader wants to engage in different ways, as an active participant and contributor to an online community as well as a consumer of the creative work.
So it's the consumer/citizen who is really driving change. From publishing to music and games to films, we are seeing innovative cross-media partnerships to create new content for consumers and make them available across a whole range of platforms.
On the legal front, the rise of 'over the top' services to consumers means that many companies which used to be 'B2B' (e.g. film and TV producers and publishers) are now 'B2C', engaging directly with consumers. Suddenly, consumer law in all its forms, from marketing, sales and contract law to data protection, is their problem. Put another way, it's actually an opportunity to build brand and reputation for those that get it right.
T5: Mind the [Digital] Platform
From digital gorillas like Facebook, Amazon, Google and Twitter to social media start-up platforms, the nature and variety of online platforms bringing content, services and communities together continues to proliferate. They are the real 'digital disrupters' in the value chains in almost every industry, and represent an increasingly significant part of the digital landscape.
The legal issues around T5 are as varied as the platforms themselves. At the top of the legal list are competition law (arising from the market dominance of the 'gorillas' in this sector), liability of platforms for hosting illegal content and the role the law may require them to play in enforcement of rights e.g. under the Digital Economy Act in the UK.
T6: Collaboration is the name of the game
“Collaboration is crucial for the industry’s survival. If, to try and protect their rights, companies and rights holders remain in silos and don’t collaborate, revenue will be limited.” - Neil Blair, Pottermore.
“Collaboration” is defined as “the action of working with someone to produce something”. Interestingly, the same definition cites the “traitorous cooperation with an enemy” as an instance of collaboration. So it is certainly not synonymous with a harmonious relationship. Collaborations can be tough, conflictual and competitive as long as they work and deliver sufficient benefits to the collaborators.
Collaborations come in all shapes and sizes in the ‘post digital shift’ world. Some are operational, where the publisher outsources a business function to a third party, such as an e-commerce platform or the provision of payment or product fulfilment services. Others are strategic, where the relationship enhances the publisher’s brand or enables it to increase market share or to enter new markets, so truly adding value to the business. Think of partnerships like Spotify’s deal back in 2009 with Swedish Telco Telia and Deezer’s deal with France Telecom to reach bigger audiences for digital music streaming services.
So on the legal front, the structuring of collaborations is equally diverse, ranging from straightforward contractual relationships, licences, corporate joint ventures, agency through to full blown mergers.
T7: ‘Consolidation and fragmentation’
All these changes are driving consolidation within different industries as companies seek scale where needed (e.g. proposed merger of Penguin and Random House). But, at the same time, markets are fragmenting as industry players seek to build their brands by creating niches.
For instance, Rebecca Smart, CEO of publishers Osprey, recently wrote a piece in the Bookseller about the need to organise around ‘verticals’ i.e. creating imprints for specific genres/ subjects/ markets. “With a branded collection of books in a vertical you can reach customers via retailers that sell other products in the same areas of interest. And if you have a brand you can sell direct to consumers.” (source: Bookseller, 2/11/12).
Whilst her comments relate to the publishing industry, they are also relevant to other markets affected by the ‘digital shift’.
Have a good week.
Laurie Kaye
Dear reader
On the move
I wanted to let you know - in case you hadn't heard - that the Laurence Kaye team - Mailin Bala, Sherif Malak and I - is in the middle of its own shift. As from April 2, we're joining forces with national law firm Shoosmiths to create a specialist publishing/digital media team, backed up by the firm's broad commercial offering.
So it's very much 'business as usual' for us and the clients we're bringing, but with the benefit of having lots of clever - and good value! - lawyers to deal with all the legal issues outside our core areas on which our clients need legal advice, including areas such as corporate and business sales, financing, employment, competition and dispute resolution.
There's a press release about our move here. If you want to know anything more, please drop me an email at laurie@laurencekaye.com or send me a message via Linked-In.
But have no fear, my blog posts will continue without change, though apologies if they're slightly more sporadic than as usual during this period of change.
My next post, on the overriding themes of the 'digital shift', should be whizzing its way to you in the next few days.
London Book Fair
Also, if you're planning to come to the London Book Fair, I'm running a seminar as part of the LBF's 'Love Learning' programe at 10 am on April 16th (Cromwell Room, EC1) on "21st Century Publishing - IP centric, multi-platform", details here. I'll be presenting along with Eric Huang, New Business/IP Acquisitions Director for the Penguin Children’s Group, and Neil Blair of The Blair Partnership and Pottermore, and well known as J K Rowling's Agent. I hope you can join us. We'll be taking a close look at the new '360 degree' approach needed in publishing today. For those non-regular LBF attendees, you need to register with LBF. You can do so here.
Have a great weekend
Laurie
Dear reader
In my previous post, I wrote that in order to see the wood for the trees in forthcoming legal and regulatory changes and developments, I’d look in a bit more detail at ‘the digital shift’ and then then overriding themes which reflect these complex interactions. This posts looks at that shift.
‘IR2’
The first industrial revolution, which began in the 1750s, lasted for between 80 to 100 years. The pace of technological change todayencourages us to believe that the 2nd industrial revolution (‘IR2’) will be completed at much greater speed. So if we take the mid-1980s as a starting point, with the emergence of optical disk technologies into consumer markets, you would expect us to be well on the way to completion, 30 years into IR2.
But we’re not. IR2 is multi-factorial,consisting of developments and changes in technology, law, business models and consumers’ attitudes to copyright, privacy and their use of social media. All of these changes are moving at different speeds, with technology way ahead of the others. If there isn’t a law which states that that “the pace of change is dictated by the slowest moving part”, there should be.
So let’s assume that 2013 marks an approximate midway point, then it is not unreasonable to guess that we have another 20 years or so to go before the tectonic shifts of IR2 have substantially occurred. On that basis, we are still in a period of flux.
Timing is all
In fact, change seems to occur in bursts of acceleration. For instance, we have seen the rapid emergence of a market for e-books in 2011-2012,preceded by a longer period of around 9 years during which the technology for e-books began to emerge but before the market took off.
These cycles of impending change and pent up demand, followed by rapid bursts of accelerated change, can lead to complacency (“these changes won’t happen or will only happen much later”) or to over-optimistic projections (“this is all going to happen overnight”).
Both are wrong. The smart money identifies the indicators of change during the ‘impending change’ part of the cycle and makes an informed guess – no-one can precisely predict – about when the trends which are apparent during this part of the cycle are going to burst into market development. That way, you can be ready to take advantage of these market developments and avoid having to play catch-up.
All human activity is here
The ‘digital shift’ affects all aspects of economic activity.
Certainly, we are seeing how the Web and Mobile connected digital devices, together with social platforms, are transforming the ways we consume and participate in entertainment and information products and services. But the ‘digital shift’ is also changing the broader world of business and consumer products and services too. New ‘peer to peer’ lending services like Zopa are appearing in the financial services industries. New fashion businesses are being established which sell direct to consumers. The advertising industry is in the process of re-inventing itself to find new models for mobile advertising that works effectively on tablets and smart phones. Social sites like Facebook and Twitter are emerging as platforms for new services. In the retail industry, the boundaries between physical and online shopping are beginning to blur. Smart phones can be used by customers to get updates on the latest in-store offers and to enhance the shoppers’ in-store experience. The list goes on.
For content owners and producers, the challenge is to avoid dependency. If they acquire their customers through FaceBook or Google, or monetise them through a revenue share with Apple, they have a vulnerable business model in the longer term. They may start that way but will need to break
one of those dependencies and therefore need a migration path so that they can acquire customers directly or can monetise them through subscription etc.
In my next posts, I’ll look at the overriding themes of the ‘digital shift’ and 'tag' them with the key legal issues associated with them.
Have a good week,
Laurie Kaye
Dear reader
In the world of digital media law, it’s easy to miss the wood for the trees. That’s because the ‘digital shift’ represents a complex set of interactions of ‘multi-track’ and inter-related change - in the law, consumer behaviour and attitudes, organisational structures, technology, traditional supply chains and business models.
This is really well illustrated in the research themes of ‘CREATe’, the cross disciplinary research project launched last Friday in Glasgow by a consortium of Universities. (You can keep tabs on Twitter - #CREATE).
In turn, these shape the many areas of law under review, nationally, internationally and globally. Adjustments to exceptions to copyright law; the role of intermediaries in enforcing the law (e.g. via the Digital Economy Act) and indeed for their own roles and legal responsibilities as platforms v. content distributors; revisions to data protection law to reflect the flows across national boundaries into and out of the ‘Cloud’.
And often it's more a case of fundamental re-think. For instance, As Dominic Grieve commented at a recent lecture, the tendency of Jurors to use the Web can change the evidence on which they base their decisions.
These complex interactions become even more complex because, in the words of the Bard, “one man in his time plays many parts’. You and I are simultaneously citizens, consumers, authors, creators and publishers. Intermediaries can be hosts for other people’s content but can also offer their own services.
When we come to legal and regulatory policy, the real debate has moved beyond a binary ‘good’ v. ‘bad’, ‘copyright maximalists’ v. ‘copyright minimalists’. The challenge now is to create the right legal and policy framework which reflects a world of ‘complex interactions’ in which real innovation is happening right across the entertainment, information and e-commerce indusries. We must encourage and sustain this. This really matters because the creative and cultural industries are one of the ways that the UK economy can really grow and create jobs and opportunities for young people.
Throughout 2013, I will be looking at some of these key policy changes, such as the envisaged changes to UK copyright law and, at a European level, Data Protection law. I will also examine the increasingly varied and complex world of platforms, from the ‘digital gorillas’ to innovative new platforms like ‘Movellas’. In order to see the wood for the trees in forthcoming legal and regulatory changes and developments, in the next few posts I’m going to look in a bit more detail at ‘the digital shift’ and the overriding themes which reflect these complex interactions.
Laurie Kaye
Dear reader
I spent Friday in an almost sunny Glasgow at the launch of CREATe, the Centre for Copyright and New Business Models in the Creative Economy, which is a partnership of 7 UK-based Universities which will also have industry input, aimed at helping the UK's cultural and creative industries thrive and become innnovation leaders within the global digital economies. I'm delighted to be a partner.
It was a brilliant day. Whilst the regulation, management and enforcement of copyright forms the framework within which these industries operate, the big theme of Friday's launch was collaboration, sharing and innovation across the entertainment and information industries and in cultural institutions through innovative new business & organisational models. 'Digital/physical' hyrid models, Freemium and crowd-funded models (e.g. Knowledge Unlatched), new live events broadcasting services (e.g. Quipu TV) and even opportunities to reinvent the retail experience to use in-store technologies and content to revive the High Street - the day was full of inventive case studies. And there were many more.
Anyone who spent the day at CREATe's launch at the Lighthouse, Scotland's Centre for Design and Architecture,would have found the US West Coast entrepreneurial, 'can do' and creative spirit alive and well on Glasgow's West Side.
The 'digital shift' is multi-dimensional and CREATe's inter-disciplinary research programme reflects that, with researchers in law, business, economics, technology, psychology and cultural analysis, who will build an evidence base and look at themes and players across the value chains from individual creators to SME's, intermediaries, corporates, cultural institutions and, of course the individual in his or her various roles as citizen, consumer, user and creator.
The buzz evident throughout the day at CREATe demonstrated that the UK does not need to look to the US West Coast or anywhere else for inspiration. It's here, right across the UK from the Lighthouse in Glasgow to the Digital Hub in Brighton and all points in between. It's in every entertainment and information industry and beyond. It's And it's not confined to start-ups. For instance, many innovative big publishers are making their content accessible to developers to create new products via APIs.
As CREATe notes, the UK has probably the largest creative sector in the world relative to GDP, accounting for over 6% of the overall economy and contributing around £60b p.a.
Of course, policy has a role to play. Aspects of copyright law, including exceptions, are going to be updated. Giving consumers and citizens choice about the use of their personal data through data effective and easy to implemen data protection law in a world of cloud-based, global services is a challenge. Competition law has a vital role to play in ensuring a level playing field between the 'digital gorillas' and other players in the value chains of our creative industries.
As industry silos crumble as the digital transition speeds up, so does the need increase for collaboration and communication between policy makers, the creative communities, technologists, academia and business. If we get this right, that 6% of UK GDP will rise and we'll create more jobs for young people.
There are definitely many in Government on both side of the Border that 'get' this. So let's continue to encourage Government to bang the drum for our creative industries at the very highest level.
Finally, well done to the organisers of CREATe and good luck with a great project.
(You can follow on Twitter #CREATe).
Have a good week.
Laurie Kaye