The discussion between Mike Swinbourne and Peter Wilkin in response to my recent Conversation article on business models for the creative industry reminded me that the excessive profits alleged to be made by powerful industry players is the go-to argument for many critics of copyright. Yet the creative industries are hardly the only ones in which a small number of powerful figures are able to obtain much greater wealth than the average member of society, so are excessive profits in the creative industries really a result of copyright at all, or are they just the usual dynamic of the economic system that we have?
I decided to do some reading on this question, but struggled to find any actual study of this issue or a related one. Every now and again someone mentions the distribution of revenue obtained from the sale of a CD (G. Prem Premkumar's was the best I found) but no one seems to have compiled similar figures for on-line purchases, films or books. Nor does anyone appear to have investigated the overall distribution of revenue amongst artists, publishers, distributors and the rest, which is closer to what I wanted to know. Either my literature search skills have failed me, or I have a project for an economics student looking to become the Thomas Piketty of art.
Whether or not their profits are fair overall, large corporations are intimately involved in the creation and distribution of the art most discussed in debates over copyright and infringement. For all the vitriol directed at major record labels and movie studios, I can only recall one person (in a comment on The Conversation) professing that he'd rather do without their products. For all other critics of the creative industries, there's no question that Game of Thrones, Mad Max IV, The Lego Movie and the rest ought to be available, and it's hard to see how anyone but a large corporation or exceptionally wealthy individual could put together something that requires the many millions of dollars that go into creating such blockbusters.
Shana Ponelis and Johannes Britz, discussing the ethics of copyright infringement, point out that infringers can ease their consciences with the perception that the victims are giant corporations who no one professes to like and who can well afford the loss of one measly song or film. Any losses to the artists employed or contracted by these corporations are quietly ignored (as are the copyright users who do pay, covering the cost of creating the work that infringers take for nothing). But, in doing so, are infringement apologists forgetting who bought them the goodies at the centre of the debate?
I can't say I find giant corporations particularly lovable, either, and I try to favour small businesses in my neighbourhood as much as possible for things like groceries, services and entertainment. But I have to concede that giant corporations have their uses — for a start, how many of our digital entertainment devices were lovingly crafted in the rustic workshop of an independent electronics artisan? Until someone gets around to examining the distribution of wealth in the creative industries, however, it's hard to say how they might be best used and rewarded.
The Conversation this week provided some commentary from Nicolas Suzor and Eleanor Angel on the Australian Government's recent instruction to Internet service providers and copyright owners to come to an agreement on policing file-sharing. At the end of the article is the crux of Australians' recent complaints about unfair and extortionate pricing of access to blockbuster television programmes: "exclusively restrict[ing] access to premium channels — such as Foxtel — are more profitable than making the same content available faster to more people at a lower price". This being so, why would anyone expect copyright owners to do anything else?
Suzor and another colleague, Paula Dootson, discuss the issue at greater length in an academic article linked to the statement above. They paraphrase the director of Game of Thrones as saying that "these series depend on 'cultural buzz' — the discussion generated and fed by viewers". What's more, "the entertainment industries have become adept at encouraging this 'cultural buzz' in order to drive up demand for their premium offerings." Fans of Game of Thrones and other series value being a part of this buzz, and feel cheated when if they can't participate because the companies behind the series delay its release into the region in which the fans live.
An alternative reading of cultural buzz is that, for all the talk of user participation and empowerment over the past 10-15 years, television viewers remain helpless consumers of the entertainment industry, unable to choose whether or not to watch a television programme, or at what time to watch it. (Of course such consumers complain that they want to watch it at the time of first release, but who chose that time?)
Over at the ABC, Mark Pesce presents himself as one such helpless consumer. Pesce complains that film studios put a lot of effort into generating interest in their films, only to cruelly ask viewers to pay for them when they're released and to castigate those who take it without paying. It isn't clear why he thinks they should behave any other way — what business would want no interest in its products, and no one to pay for them? — and perhaps pro-copyright folks can take some heart from the number of commenters who lined up to call out Pesce's rant as unconstructive, illogical and immature.
Against the "helpless consumer" interpretation, though, one could contend that participation in any cultural buzz, even one pushed by entertainment companies, is nonetheless participation. What's more, participation requires access to the material at the centre of the buzz at the same time as everyone else. In this interpretation, television viewers are instead "time-critical participants".
Against the "time-critical participant" interpretation, one could point out that hardly any of us alive today participated in any cultural buzz surrounding the release of Hamlet, 1984 or The Lord of the Rings, yet many of us nonetheless continue to enjoy, discuss, and be inspired by these things. The first release of an artwork can only ever be ephemeral, and a work's real worth evolves over a much longer period of time than the one at the focus of debates over restricted releases. In ten (or even one) year's time, will anyone care whether they saw Game of Thrones yesterday, today, tomorrow or, indeed, at all?
The Australian this week reported that Village Roadshow would "distribute all major films before, simultaneously or close to the US release" in Australia in an attempt to eliminate copyright infringement attributed to delayed releases of films (Wait times slashed to beat film pirates, 24 September 2014, p. 3). For a moment it was almost like Village Roadshow had read my thoughts on proving claims of greed and gluttony in digital media. Village Roadshow's Graham Burke, however, gives a more likely explanation that the move was prompted by widespread piracy of The Lego Movie, which earned special notoriety for its delayed Australian release despite its being animated in the same country. The ABC adopted a similar strategy for the most recent series of Dr. Who, so that patience-challenged fans could watch the first episode at the same time as BBC watchers in the UK even though this was an absurd time of the morning in Australia and the same episode could be had for free on the same evening at its ordinary time.
Village Roadshow's and the ABC's moves suggest some success for a "civil disobedience" defence of copyright infringement, by which infringers justify their actions as a protest against unreasonable terms being offered by the distributors.
Of course the success of a protest campaign doesn't, in and of itself, prove that the protestors are right. However, the original reason for delayed cinema releases given in The Australian — re-use of physical film reels shipped from the US — is no longer relevant and I'm not aware of any other reason to delay releases. (The Australian makes a vague reference to other reasons including "allowing time for heat from the US to spread" but I don't know why whatever is meant by "heat" should be generated in the US any better than anywhere else.)
So critics of delayed releases have got their wish, at least from Village Roadshow and the ABC. We can now wonder what affect these moves will have on the level of copyright infringement. If infringers' main reason for infringing really is to combat delayed releases, as some commentators claim, we can expect infringement to taper off. Probably not to zero; copyright infringement happens even in the US itself, which infringement apologists seem to take as the gold standard of release dates and pricing. But here we have an opportunity to see whether or not Australians really are willing to pay for digital media when it is released alongside the US.
Two of the more interesting comments on my recent history of copyright protection technology, one from Fred Smith on The Conversation and another from "Graham" on Technology Spectator, refer to copyright protection technologies in the computer software industry. Copyright protection for computer software does not seem to attract nearly so much attention as it does for music and video, and seemed to be an entirely separate stream of research and development when I worked in the area. But there may nonetheless be something here to learn.
Fred Smith says that "the digital distribution platforms [specifically, Steam] have introduced DRM in such a way as to make piracy harder than legitimately buying games (which is how it should be)". Not being a gamer, I haven't tried these platforms myself. Smith, however, seems to think these systems are working fairly well, and his description of Steam sounds something like what rights management researchers were trying to achieve for music and video between 2000-2010.
I can see at least two advantages that the developers of Steam might have had compared to the developers of earlier rights management systems. Most obviously, they've been able to learn from the experience of those researchers of the past decade; if so, I suppose we can feel some pride that our efforts finally amounted to a working system.
The second advantage, illustrated by Graham's comment, is that the developers of computer software are responsible for both the product and its protection. This eliminates cost-shifting between content providers and technology providers, which is arguably one of the contributors to the poor state of rights management technology for media products.
I suppose that Graham and others who argue that media providers should bear the full cost of copyright protection imagine a similar circumstance coming into being for the media industry. However, arranging this might not be so straightforward as it is in the case for computer software since media companies don't manufacture player devices.
One solution I've heard would be for the computer industry to simply buy out the music industry (I think Andrew Odlyzko mentioned it at the ACM Workshop on Digital Rights Management 2007, for one). Proponents of this idea say that the computer industry is big enough to do this, though it's not clear that it could also buy out the film industry. But do we really want music and film to be controlled by companies whose core business is to make and sell computers? In any case, I'm not aware of any computer company wanting to do this, and the nearest approximation to it of which I'm aware — Nokia's Comes with Music — appears to have been a failure.
Some rights management consortia do include both technology and media companies. The consortium behind Ultraviolet, which was one of the more promising-sounding technologies in my review, is an example. I don't know what financial arrangements these consortia have, and I don't yet know how successful they might be. But it seems reasonable to hope that more might be achieved by co-operation than by having computer companies in one trench, music companies in another, each insisting that the other make our computers fit for entertainment.
I published my first Conversation article last week, giving a brief history of copyright protection technology and its deficiencies. Thanks to my editor at The Conversation and Victoria University's Public Affairs Department, the article also appeared in Technology Spectator, Mumbrella, Phys.org and SBS.
I wrote the article in response to what I saw as some incompletely-thought-out criticism of the Australian Government's recent Online Copyright Infringement Discussion Paper. The paper floats the idea of giving Internet service providers a legal incentive to assist with the enforcement of copyright. Critics of this notion typically insist that the media industry should do its own policing — but, in previous rounds of the debate, copyright activists cried foul at attempts to restrict or sue individual users. So what to do?
The comments on the article fall into four broad categories. Firstly, there are the re-statements of classic anti-DRM anti-copyright positions that don't address any specific point in the article. I won't address them here any more than they addressed anything I said there.
Secondly, there are those who insist that the solution is new business models or lower prices. The discussion paper itself recognises that pricing may have an influence on the level of copyright infringement in Australia, though I think I could just as easily have written a history detailing the failure of new business models to produce any change. Whatever the case, all this does not actually answer the question of how best to enforce copyright law, and no business model or price point seems likely to work without a law that gives creators something to sell.
Thirdly, there are those who insist that ISPs should have no role in enforcing copyright law. This is exactly the view that I set out to examine, and I think the comments illustrate why. Critics of the discussion paper seem certain that any regime will be funded by ISPs, who will pass on the costs to their customers. But the discussion paper says no such thing; its second question actually asks "How should the costs of any 'reasonable steps' be shared between industry participants?". In constructing a false dichotomy in responsibility for the enforcement of copyright law, critics are blind to any solution in which the media industry funds technology or otherwise collaborates with the computer industry, both of whom have an interest in having good stuff to do with our computers.
Lastly, there are a few who interpreted the article as demonstrating that copyright protection technology is futile. While I guess they don't appreciate it, this group actually supports the article's thesis insofar as governments came to involve Internet service providers precisely because everyone rejected previous copyright protection technologies.
Reading government reports like the discussion paper in question, I sometimes reflect that their authors seem to be quite a bit more thoughtful and better-informed than their critics give them credit for. For critics with little knowledge of history and an interest only in consuming media as cheaply as possible, I guess it seems "obvious" that the media industry is the only party with an interest in enforcing copyright law and the authors of government reports are stupid for not seeing it. Of course the media industry is a lobby group trying to push its own interests — but so are critics who are only interested in how they can get cheap entertainment. A good government report knows this, and poses questions that lobby groups don't ask because they've already assumed the answer.