Pretty much seven years ago to the month, Zeitgeist was putting the finishing touches to his Master’s dissertation. It centered on intellectual property rights, and the infringement of those rights by consumers who were downloading content they weren’t paying for. Zeitgeist conducted multiple interviews, including several with key people at studios and industry bodies in Europe and Los Angeles. It was a time when the industry were trying to curtail piracy using massive fines and jail sentences, at the same time providing few legal alternatives for content consumption online (this latter issue is still a problem today). Needless to say, there were a fair amount of heads buried in the sand. We’ve talked about piracy before, from its murky impact on the bottom line to the stricture of copyright law.
It was refreshing to see the news reported by industry trade mag Variety that Comcast – a large cable operator in the US, which also owns NBCUniversal – is investigating new methods of disrupting piracy online. Specifically, they are planning to push pop-ups to those who are downloading content illegally, providing them with links to alternative domains where the same product can be downloaded legally. There are privacy concerns here, undoubtedly. What was most reassuring about the idea though was crystallised below by journalist Andrew Wallenstein, which for Zeitgeist hits the nail on the head:
Using pirated content as a platform to drive legal transactions reflects an alternate philosophy regarding copyright infringement, one that sees the illegal activity less as a crime that requires punishment and more as lead generation to a consumer whose behavior is borne out of inadequate legitimate digital content options.
The name Margaret Anne Lake might not ring too many bells. But if you were in the UK towards the end of the twentieth century, you’ll be familiar with her alter-ego Mystic Meg.
Having made her name as an astrologer in The Sun, Meg was catapulted into the national consciousness when she was given a slot on the fledgling prime time National Lottery draw programme.
In an attempt to build excitement and pad out an event that took two minutes to complete, Meg was brought in to ‘predict’ the winners.
Her predictions were suitably vague.
The norm was something generally along the lines of “the winner would live in a house with a 3 in the number, in a town beginning with L or M and have bought their tickets from a woman.” with a sprinkling of astrological terminology for extra authenticity.
However it would seem that back in the mid-to-late 1990s Meg wasn’t the only one struggling to see what the future held. Far away from the glamour of TV, a number of well-paid businessmen were busy making decisions that would see their organisations squander their dominant positions.
And a couple of weeks ago, after struggling along for years, both HMV and Blockbuster UK, once leaders in their categories, hit the buffers and called in the administrators.
The phrase caught on, partly because it made a point in a catchy way. But like many wisdoms, it doesn’t tell the whole story.
Just because something works now, doesn’t mean it always will. And those in position of responsibility have an obligation to future proof their organisation.
Back when Mystic Meg was in her pomp, the digital revolution that helped bring about the demise of both retailers was in its infancy. But signs of its potential were there, particularly for HMV.
The first was how people acquired their music.
Software that ripped files from physical storage, coupled with faster web connections, gave birth to peer-to-peer sharing. Programmes like Napster, Kazaa and Limewire removed the need for physical reproduction and distribution.
The whole entertainment industry never really came to terms with illegal downloads, opting to use legal threats and emotional blackmail, rather than adapting their businesses to meet the demand.
In reality, not all pirated content would ever have been bought legally. Peer-to-peer applications offered users the freedom to sample new artists they would never have paid for and get digital versions of music they already owned physically, easily and without it costing them money.
One of the reasons people wanted their music digitally is the second reason the digital revolution helped bring about the demise of the likes of HMV – the way people consumed and stored music.
The emergence of the digital music player, culminating in the release of the iPod in 2001 meant that people also wanted their music in a new format. They could now store their entire collection on one machine.
When people had upgraded their vinyl to cassette, and then their cassettes to CDs, HMV had been in pole position and reaped the profits. However a digital format didn’t require physical stores and HMV didn’t react. Their model was suddenly ‘broke’, but they didn’t realise in time to fix it.
Can such demises be avoided? The future is notoriously hard to predict, but there are some guidelines that can help companies avoid suffering a similar fate to HMV.
1. Be alert to new and niche competitors
Back in the 1980s and 1990s, HMV may have considered their competition to be the likes of Tower Records, Virgin and Woolworths. When they all disappeared, it might have seemed that HMV had won the battle. In reality they were all killed by the same bullet. The game changed as companies diversified.
Back in 1981, following a dispute with Apple Corps, Apple Computing agreed not to enter the music business. Now, iTunes offers over 28,000,000 songs.
Just because someone isn’t a direct competitor now, doesn’t mean they never will be.
2. Keep an eye on the Path to Purchase
HMV didn’t suffer because people suddenly stopped wanting to buy new music or watch films. What changed was how people acquired their material.
Online downloads provided a new way to access digital music. For those who wanted physical media, Amazon et al provided an alternative way to buy CDs and DVDs. Now that nearly 80% of UK households have broadband connections, consumers can stream films at the press of a button or watch a dedicated Movies channel.
Sometimes people will still want physical media immediately, but just not often enough to sustain a business as big as HMV.
3. Understand the next generation
Many years ago, I worked in Woolworths. A large proportion of the music we sold was to youngsters spending their pocket money on their latest idol. While online might have been niche in the mid-to-late-90s, the youngsters of today have grown up with it. As a result, consumers under 35 won’t have had the opportunity to develop an engrained habit of buying their music in physical stores like HMV. Buying entertainment online is no longer an alternative, but the norm.
4. Play to your strengths
While online retailers can offer lower prices and a wider catalogue, physical retailers offer immediacy and have the opportunity to provide enhanced in-store engagement.
Shoppers want convenience, value and experience.
Browsing for and buying music, film and computer games ought to be a fun, pleasurable act. Online shopping will continue to grow across pretty much every category. Physical retailers need to understand their role in fulfilling shoppers’ needs. Sometimes it will be about delivering the product quickly and easily, but sometimes it will be making the act of shopping an enjoyable experience that merits a slight price premium.
5. Be prepared to change
Taking all of the above into account, it might be easier to spot how a business structure that is dominant now might not be so successful in the future. It is often said that defending a title is harder than winning it in the first place.
However, it can be done.
McDonalds have long dominated the fast food industry. Just over a decade ago, their restaurants were tacky red and yellow places with plastic seats.
Yet they saw that their competition was no longer just the likes of Burger King, but also other food outlets and increasingly the likes of Starbucks et al who offered a more pleasant in-store experience.
Now their outlets have all been refurbished with designer furniture and offer free wifi.
They also observed other trends that would impact them. From obesity to ethical sourcing of produce and packaging, they adapted their business to stay one step ahead.
Their menu still offers the old favourites, but also includes lighter options. Their burgers come from British and Irish farms and much of their packaging is made predominantly from recycled materials.
As a result, they are still thriving on the high street.
Zeitgeist was lucky enough to be a guest at the BFI Imax the other day when a select few members of the press, film industry folk, hangers-on and, yes, Trekkies, were shown footage from the Star Trek film to be released next summer, “Into Darkness”. It was a mere nine-minute clip of the film – the rest of which is still under lock and key / being edited under the watchful gaze of J.J. Abrams – but it was deemed enough to hold a Friday morning event around, with a very well-catered brunch afterward. What made the morning special was the presence of two of the stars, Alice Eve and Benedict Cumberbatch, as well as the producer, Bryan Burk. The Q&A session, preceded by video salutations from J.J. and Simon Pegg, had many Trekkies in the audience aflutter and was a nice bit of promotion.
Regarding the footage itself, any excitement at seeing fleeting glances of futuristic shots brimming with portent were somewhat diluted by the fact that the same nine minutes were to be shown from that day before select showings of “The Hobbit”. Which of course means it was also pretty much immediately available on YouTube (if only to be removed, in an understandable but somewhat counter-intuitive move by the studio).
The status quo at the moment is one in which films often have longer life-spans than ever before (especially if more than one iteration is being shot simultaneously a la Lord of the Rings, or the studio making the film falls into financial trouble, as with the last James Bond film, Skyfall). If the production time isn’t longer, the lead-in for marketing certainly is. Disney’s Tron remake, which came out in 2010, was several years in the making. The marketing campaign was three and a half years long. One promotional tactic used was to give away free – but very scarce – tickets to select sneak peeks at the film, several months before its release, which at the time Zeitgeist took full advantage of.
This is not without drawbacks for the studio of course, as early bad press could scupper a film’s chance of commercial success. But in part perhaps recognising the need to constantly remind people of a product, in a society today that values instantaneous media and loves to second-screen, the risk is one worth taking. It’s especially appropriate if the film has a built-in, excitable fanbase, which both Star Trek and Tron do, and you can feed them occasional scraps to keep them satisfied. The TV series Lost, which invited similar nerdy inclinations – and was another brainchild of J.J. Abrams – made a similar move when the studio behind it released tantalising clips on YouTube in an effort to stir interest. Crucially, it also meant they beat the pirates at their own game. All in all it was a nice little bit of promotion by Paramount, creating coverage in media old and new as the stars gave interviews afterwards, and keeping die-hard fans on the slow-boil, ensuring the film remained top of mind while the final product remains a work in progress.
It’s fair to say that in the past ten years, the pace of technology has evolved at an ever-increasing rate. The way in which devices have changed, and with it our use of them, was humourously summed up in the above cartoon from The New Yorker. Digital trends have affected the way we communicate, the way we consume media, and indeed the way we consume goods and services, i.e. shop.
So it is a little surprising to many – your humble correspondent included – that we still have to put up with a film being released in one country one day, and in another months later. That we still have to wait a certain number of months for a film to amble its way from the cinema screens to our home, whether on Blu-ray / DVD or on VOD. It’s interesting to note that vertical integration isn’t a key issue; Disney recently launched the second subscription video on demand (SVOD) service in Europe, with a library of constantly refreshed titles that can be viewed on platforms ranging from TVs to Xbox to iPads. Indeed, Disney’s CEO Bob Iger announced way back in 2005 in an interview with The Wall Street Journal that he foresaw a day of collapsed release windows, when a film came out the same day at the cinema as it was available to watch in the home:
We’d be better off as a company and an industry if we compressed that window. We could spend less money pushing the box office and get to the next window sooner where a movie has more perceived value to the consumer because it’s more fresh.
So there is money to be saved in such an exercise. Yet seven years later, such a situation is still mostly a fantasy for major films. Studios have undoubtedly dipped their toe in the water, and some moderate success has been seen on the indie scene, specifically with recent films like Margin Call, Melancholia and Arbitrage. The former film was released simultaneously in the cinema and on VOD (seemingly only in the US, however), eventually recording strong results, months after its initial release at Sundance Film Festival. Again, what is the justification for such a change in platform release timings? Not meeting consumer desires and addressing piracy, but simple cost savings. Variety reports:
“We’re a star-driven culture, and on a crowded (VOD) menu, what are you going to be drawn to?” posits WME Global head Graham Taylor, who adds that with marketing budgets skyrocketing, the ability to use a single campaign across closely spaced bows on multiple platforms is an important cost savings.
The whole situation is quite frustrating for any fan of film or television. It is a frustration shared by Frederic Filloux, co-author of the excellent blog Monday Note, which Zeitgeist strongly recommends to anyone with an interest in insightful thoughts and reasoning on media industry goings-on.
Their most recent post also happened to detail the author’s frustrations with such seemingly arbitrary release windows. One of the most pertinent charts displays the achingly slow rate of change in platform release changes, that is so at odds with the pace of change in other media (above). The content of the post has rational recommendations, which at first glance seem eminently appropriate and overdue for implementation. Some of the recommendations though fail to account for the fact that the film industry and its machinations are often governed by winds of irrationality.
To summarise, Filloux recommends a global day-and date, shorter, more flexible window of time between cinema and home release. There are a number of obstacles to these ideas though. Firstly, exhibitors must be placated. They hold such a sway over studios that they cannot easily be ignored. Bob Iger, in the interview mentioned earlier, mentions exhibitors as being a key obstacle. Think about it, why on earth would a cinema want their film to be available in the comfort of their audience’s home any sooner than it already is? It wants to enforce scarcity, so that when the film’s marketing machine is at its height, the cinema is the only place you can see it. As already mentioned, indie films have had some success with multi-platform releases, but even these have met with consternation from exhibitors, as a recent example in Canada shows. The consternation becomes outright war for larger films. Zetigeist reported when, in 2010, many exhibitors refused to show Tim Burton’s Alice in Wonderland when the studio, Disney, flirted with releasing the film to home release less than four months after its theatrical debut. After much back and forth, exhibitors eventually relented, and the film went on to gross over a billion dollars at the global box office. Exhibitors are not going to be convinced about flat release windows anytime soon. They are perhaps the largest roadblock to such a move, and the largest point of advocating a return to vertical integration of production, distribution and exhibition that was the case until the Paramount Decree in 1948.
Moreover, while the argument about having flexible, shifting window releases depending upon a film’s success is logical, it does not acknowledge the existence of sleeper hits, films which do not open to huge returns but gradually accrue it over months of release (as illustrated by Margin Call, mentioned earlier). It would also be hard to define when a movie “succeeds” or “bombs”. You could use box office as a figure, but would this be without context, as a ratio of the film’s budget, or against its current peers? Using box office fails to take awards – principally Oscar – coverage into consideration, which invariably adds its own box office bump to a movie when it is nominated or wins.
The recommendation for simultaneous worldwide release is also a valid point. Zeitgeist has written before on the ridiculous prices pirated films go for in markets that have no access to the official product. To their credit, studios are moving further toward a “day and date” system. However, doing so exclusively would be dangerous. Releasing some films market by market allows the studio to gauge audience reaction, and if necessary tinker with the marketing or the film itself. Staggering release dates is also necessary for cultural events, such as the World Cup, which may be more relevant to some countries than others.
It is the last point made in the article, that of making TV shows “universally available from the day when they are aired on TV” that Zeitgeist could not agree more with. Apart from audience frustration – and recent technological development such as DVR show how the opportunity can shape viewer habits – such a move would also surely divert people from resorting to illegal downloading.
To conclude, while there are caveats and significant roadbumps to be addressed, and some progress has been made over the years, the film industry has a long way to go in a short time if it wants to catch up with consumer habits. Flat release windows should be an inevitability, and a priority. Moreover, they should not be seen purely as cost-saving measure, but as an important way of keeping an increasingly technologically and globally savvy customer base happy.
As the clock in Trafalgar Square ticks down, so the fearful anticipation of the impact 250,000 extra people will have on London’s already struggling transport network has risen to a level not seen since the prophecies of doom surrounding the Millennium Bug.
Thirteen years ago we were warned that planes would drop out of the sky and nuclear power plants would meltdown due to antiquated software, written when the memory used up by a couple of digits was a precious resource, being unable to cope with the new millennium. As it turns out, it was either a real false alarm or people got their houses in order well in advance.
This time we might not be so lucky. How can a service for who a perfect day is an annual event be expected to cope with so many additional passengers, many of whom will be using it for the first time?
In preparation, over the last couple of weeks, commuters have had messages announcing delays punctuated by a recording of Mayor of London Boris Johnson asking us to make alternative travel arrangements and to get ready for ‘The Big One’.
So, while transport workers will get bonuses to help them cope with the stress of having to do their jobs over the Olympics, ordinary commuters many of whom have paid thousands for annual travelcards in advance will get no compensation – maybe it’s time for a Passengers Union – for not being able to get to their workplace.
A conspiracy theorist might conclude that all the warnings and scaremongering are an attempt to create a sort of tipping point for working from home whereby employers and employees who are able to use this option do so, realise how convenient it is and begin to do so more often, thus reducing the strain on the network in the long run.
When ‘on-time’ is ‘late’ and ‘good’ is ‘not good’
The recent revelation that fewer than 70% of UK trains run on time will not have surprised many who travel by rail despite train companies usually reporting much higher punctuality rates (they give themselves a larger margin of ‘lateness’).
Such fanciful redefinitions of what is ‘on-time’ do little to win the trust of travellers who must feel persecuted that when so few trains are officially late, why is it always theirs that is?
At the moment it is exclusively based on time and staff have discretion as to when to declare delays. For example, this article from the BBC highlights that a nine minute delay could still be deemed a good service.
But ask people to describe their journeys underground and as well as tardiness, they will complain about overheated and overcrowded trains.
Given the choice between getting somewhere ten minutes later in relative comfort or arriving earlier but having nearly melted on the way, many commuters would choose the former. Maybe we could be informed that ‘The Bakerloo line is running with a good but severely overcrowded service’ to help us pick how we want to get from A to B and to reduce the burden on overcrowded lines.
For all the fretting, there is little that can be done at this stage. We can only hope the ‘Big One’ is such an enjoyable experience that the abiding memory of the London Olympics is of athletes reaping the rewards of years of effort and not visitors suffering the consequences of years of underinvestment.
We have reported before on the quota China imposes on Hollywood films coming into the country.
Zeitgeist remembers being in a meeting while doing at stint at 20th Century Fox back in 2004, when presentations were optimistically suffixed with the potential for China to drop said limit. It was always an inevitability, and when last month DreamWorks Animation announced a pact with Shanghai Media Group and China Media Capital, it was clear something bigger was on the cards. This has been the case for a while though, as US production companies have sought to get into China’s goodbooks with relevant films (witness Kung Fu Panda and the most recent iteration of The Mummy franchise).
Good news finally came to studio heads and cinema exhibitors. While the quota hasn’t been dropped, it has been dramatically extended to allow another 14 films into the market each year (from the current 20). This can only be good news for Hollywood, coming at a time when DVD and Blu-Ray revenue is slowing; Bloomberg recently reported that more films will be streamed than watched on disc this year. In China, however, views are mixed. Variety summarises,
“Theater owners are very upbeat, filmmakers are split — will this mean unnecessary competition, or a boost to moviegoing habits? — and Hong Kong industryites are watching things closely.”
The country already means big business for Hollywood, with the piece of rubbish that was Transformers 3taking in $170mn, and Avatar making $210mn. Year on year, the number of screens in the country increased 33%. 803 cinemas opened in the past 12 months there. So the supply-demand ratio is currently extremely favourable (with Hong Kong hopefully not being a harbinger). One would have to be very naiive however not to consider the political landscape of China, which is inscrutable to say the least. Whether dealing with the electoral process in Hong Kong, or the media landscape – from TV to social media – it can be difficult to know where you sit at any time. Variety again,
“Filmmakers face… rigid – and opaque – standards of control and censorship [in China]… [I]f a filmmaker doesn’t meet those sometimes abstruse rules, it won’t be admitted.”
What the Chinese government will have some difficulty in regulating though is the black market, which should hopefully see film piracy diminish as a source of revenue. With an assumed lowering of cost per purchase of pirated film, it should mean even more Chinese get to see Hollywood product (though admittedly without compensating the studios for it, at least initially).
As well as receiving net net more money from China from its films, the deal made also allows Hollywood to receive 25% of the Chinese box office back on imported films, previously at 13%. What should be a lucrative influx of revenue for the film studios comes at a welcome time. Not only is the business shifting from discs to digital delivery – which currently is proving harder to monetise – it is also under increasing pressure to collapse its sacred windows – the time period between when a film is released in cinema, DVD, POV, TV, etc. A few weeks ago, Netflix, an increasingly powerful player in the mix as it broadens its availability to the UK, and becomes a content creator, called the windows structure “pretty archaic”.
While releasing films on multiple platforms simulataneously might produce a spike in opening weekend returns, it comes at the cost of angering a lot of cinema owners, who would not take kindly to the idea of their film being available to watch at home at the same time they are trying to charge you £12 to watch it in a big dark room with a bunch of strangers. Zeitgeist’s radical solution is to allow the windows to collapse, and then for the government to allow the film studios to vertically integrate with the exhibitors again, like in the old days. But that’s another article…
The terribly dry yet fascinating Harper’s Magazine recently featured in its ‘Readings’ section an excerpted essay taken from a book, out this month, entitled Stealth of Nations: The Global Rise of the Informal Economy. The following is a summary and rebuttal of some of the key points made.
The excerpt begins in China, where intellectual property theft is, as most of us know, already rampant, and has been for several years. There are contributing factors for this. One is a market that allows around only 20 Hollywood films to be released every year. Another is the premium placed on legitimate DVDs sold in emerging economies like China. As The Economist reported in August, DVDs of The Dark Knight sell for $663 a copy in India. In China, the LA Times reports, counterfeit DVDs may have more special features than the genuine article. This last point taps into what most advocates of piracy usually tubthump; piracy gives people what they want. Not necessarily just regarding price – Zeitgeist would be hard pushed to fork out $663 for The Dark Knight – but also with regard to access and to functionality of the product. At The Future Laboratory‘s Spring/Summer trends briefing earlier this year, the emphasis was on loosening control over proprietary technology, collaborating with others in order to enhance innovation and ultimately help make the product better.
The product in question in this bazaar, however, is not DVDs; “There’s essentially just one product sold here: mobile phones.” The handsets are all knock-off, counterfeit items, playing on and abusing the brand equity of established companies with names like “Sansung”, “Motorloa” and “Sany Erickson”. It brings to mind the episode of the The Simpsons when Homer is duped by brands like “Panaphonics” and “Sorny”.
The competitive advantage for these products over their authentic brethren is the price. With no need for an R&D budget, the price of a “pirated Nokia N73 [is] $85, a fifth the cost of a real N73″. The author predicts sellers get an “extraordinary” 100% return on the initial investment. This, then, is big business. Big in the terms of holistic number of customers, returning multiple times, and big in the sense of the amount of profit it turns, and the number of people employed in such activities.
“The International AntiCounterfeiting Coalition… predicts that, with hundreds of thousands of industrial workers still facing unemployment and dislocation from the global recession, China will allow more piracy in order to prop up employment and avoid potential civil unrest.”
The author contends that this kind of behaviour is entrenched in society, and owes its debt to Bernard Mandeville, who argued for liberalising the market to the extent that things like tax-dodging, piracy and overcharging were “good for society”. The pamphlet in which he extolled his virtues became extremely well-known because pirates quickly got a hold of his six penny publication and distributed it in half penny sheets. This obviously made Mandeville no profit, but it raised his profile no end and, according to the author, “gave him the opportunity to publish a new edition”. Keeping as many people employed as possible, no matter the scrupulousness of their work, he argued, would lead to a better society than one dominated with excessive rules and regulations. And it seems, prima facie, that selling pirated goods allows access to consumers who can’t afford to pay full price. The difficulty, however, lies in whether the consumer can’t afford to or whether they just don’t want to. Whether someone whom a company would initially attempt to covet and convert to a prominent customer at a later age is instead lost to a world of pirated goods, which, not being subject to the same standards as the genuine article, ultimately disappoints the buyer and pushes them away from the brand entirely.
In a tale similar to that of Mandeville, the author Neuwirth suggests similarly that were it not for piracy, Shakespeare himself would also be confined to the realms of anonymity. During production of his plays, piracy allowed for other productions to run different versions – “King Lear was remade with a happy ending”, for example. In 1709, publisher Jacob Tonson bought the rights to the complete works, publishing them at a premium every fourteen years, “enough to secure his perpetual copyright”. When one upstart pamphleteer threatened to sell the plays in sets for a fraction of the price, the argument that ensued resulted finally in Tonson flooding the market with plays sold at a penny.
“Shakespeare’s plays were suddenly available all over London at rock-bottom prices – something that had never been true even in the playwright’s lifetime. A century after his death, piracy helped make William Shakespeare a household name across social classes.”
Without deep research it is hard to dispute this intriguing interpretation, except to say that some of the adaptations of the plays may well have fallen under today’s terms of ‘fair use’, and that perhaps what this example really demonstrates is the need for a regulatory environment, one that stipulates that culture be accessible to all, rather than leaving it to excessive price gouging. Similar stories occur in the present-day as Neuwirth moves on to illustrate the situation in Peru, where “more books are sold in pirated editions than official versions”. The price for a legitimate copy of a book is too steep for most people to afford; thus the piraters are the ones that undertake market research, attend book fairs, etc. This is a dramatic fault with the publishing industry in Peru, which clearly has missed business opportunities here by not aliging prices sufficiently with customer demand. This again, then, is an example where regulators should be stepping in to correct market deficiencies. It is not necessarily an excuse for piracy to be celebrated. An absence of morality is not an imprimatur for immorality.
The Business Software Alliance affirms that in 2008, piracy cost software companies $53bn. The author rightly challenges this, writing that the BSA “assumes that every pirated program represents a lost sale at full retail price”. With relatively high prices for products like Adobe InDesign and Photoshop, this thinking by the BSA is indeed questionable. In some cases, initial access to a pirated copy, much in the same way a legitimate trial version works, might well help incentivise the consumer to purchase the full, legal product. Interestingly, the author quotes a note, hidden away in the BSA’s results,
“‘Business, schools and government entities tend to use more pirated software on new computers than ordinary consumers do’. The government – the same entity that the industry calls upon to police piracy – is actually one of piracy’s largest patrons.”
This revelation is startling as it turns the notion that it is consumers who are the wrongdoers, consumers who need the educating, on its head.
The notion of piracy contributing positively to business turnover is a tough one though. The author contends that in the world of fashion, going from a world of ‘planned obsolescence’ (a term used for things like when BMW will decide to release their new version of the 7 series), to “induced obsolscence”, where piracy “spurs demand for new styles”. This may be so in some sort of roundabout way, but the presence of piracy can surely be said to do little for the customer trying to differentiate between the legal and the illegal product, and little for the brand. Louis Vuitton et al. have surely suffered considerable losses over recent years, and invested significant amounts of time and money on combatting piracy. Though an anonymous executive of a “major sneaker manufacturer” might concede piracy doesn’t really impact the bottom line, it is debatable as to whether this is the case for those in the high-fashion world.
Ultimately, while the rise of pirated goods allows consumers more options, it also requires them to be increasingly savvy about the products they are purchasing. An over-regulated environment may stifle innovation; collaboration among multiple entities has been proven to sometimes enhance the development of a product. Quality of craftsmanship is necessarily going to be harder to discern when purchasing a pirated good, though. The trick is to create a legal framework that allows businesses to thrive, to provide their customers with a product at the right price, and to employ people who are protected under laws that they would otherwise not be granted under illegal outfits.
The British Library corrals some bright sparks and lights some fires over copyright protection.
At the Emmy Awards recently in Los Angeles, emcee Conan O’Brien bemoaned (or rather, celebrated, see above) the demise of old media, in particular his erstwhile host, NBC. While media fragmentation has played a significant role in this, many in the industry also complain of piracy. Intellectual Property Rights [IPR] are not sufficient they say. At the end of last month, the British Library published a paper under the Creative Commons license entitled “Driving UK Research. Is copyright a help or hindrance?”, in which 13 scholars, journalists and artists, all intimately familiar with IPR, advocate for a more relaxed approach to incentivising and regulating.
“There is a growing tension between laws designed to protect the intellectual property of writers and performers and their desire to capitalise on their own copyrighted material.”
The above quotation is from author and journalist Richard Donkin, featured in this report. The original purpose of copyright as set out in the United States is to incentivise people and to encourage innovation. Zeitgeist would argue that these original aims have been lost in a orgy of corporate overindulgence. As discussions continue on lengthening Europe’s current 50-year copyright term to equal the 95-year length in the US, one issue that many of those writing have difficulty with is the issues of ‘fair dealing’, more commonly known by it’s US term, ‘fair use’. According to this paper, it currently allows little scope for sampling for educational or critical purposes. As Professor Lionel Bently comments, “the publisher insists that I and my co-author have the consent of the copyright owner. But identifying and locating the copyright owner is not at all straightforward.” It is often very hard to track down the rights to a work as attributed to a particular person – especially if this person is no longer among the living. One of the contributors to this paper argues that people should be actively encouraged to register their copyright, rather than just assuming it as the work is created. This would not only give some authors the option of immediately making their work rights-free, but would also make the identification process that much simpler. The labyrinthine complications are echoed by Dr. Estelle Derclaye, who calls issues of IP law a “daily dilemma to some researchers”, constantly worried that photocopying this extract or inserting a video into a presentation would bring them (or the institution they work for) a step closer to a lawsuit.
‘Fair dealing’ also states that “[t]he copying of an image to make a presentation [on PowerPoint] is an infringement, as there is no statutory exemptions”. This is quite remarkable, and indicative of an anachronistic copyright structure. The notion is also hampered by issues of semantics. Professor Nick Cook writes that there are “specific problems” with ‘fair dealing’, one of which being that they “do not fully cover sound and film”, allowing only small excerpts to be reproduced. There is, however, no clear definition of ‘small’. This is stunningly inadequate. Until matters like this are cleared up, those creating, using and critiquing content will face confusion as to their rights. Cook continues,
“[P]erhaps the greatest problem… is ignorance of the law on the part of researchers (who frequently ask for permission they don’t need), publishers (whose copyright guidelines are often needlessly restrictive, and rights holders (a number of music publishers, for example, claim that fair dealing does not cover printed music – a claim for which there is no legal foundation.”
The danger of this last example of overprotective rights holders is that content does not find its way into the public domain and hence does not become used. Everyone from Picasso to Dizzee Rascal has used previous works to create their own content. Works “that people cannot access create no revenue for anyone”, comments Cook. This is no mere hypothetical abstraction. There are currently many, many films literally rotting away in the basements of various film studios in Los Angeles, waiting for their copyright limits to expire. Inaccessible, and not making any revenue for anyone. Journalist Mike Holderness argues that an alternative revenue stream could be set up to compensate creators of works for making their works available online and to anyone
The irrelevance or mere disdain people have for IP laws today is abundantly clear. Marshall Mateer, Education Consultant for the National Education Network, writes simply, “[t]oday copyright often becomes a barrier standing in the way of what it should be enabling”. Dr Gabriel Egan points out that the effort to get people to stop pirating content purely by enforcing Digital Rights Management software has failed spectacularly (not least because there are always loopholes in software). Taking an educative stance by trying to convince people of piracy’s moral corruptibility rather over-stated the case, and rather too late as well. Egan points out,
“Trailers in cinemas warning that copying a film is theft, akin to purse-snatching, strike most spectators as manifestly untrue. Stealing deprives someone of the use of their property, while copying something only adds to the number of copies in existence. The supposed loss to a rights holder is notional and dependent upon the untestable hypothesis that a consumer prevented from copying something will buy it instead.”
Richard Donkin, perhaps optimistically, writes that “[w]idespread disregard is often a prelude to legal reform”, arguing among other things that the copyright term needs to be shortened to around 20 years. It would be nice to see Mr. Donkin’s dreams come true.