Supporting the creative economy?

Today sees the publication of the Third Report of Session 2013-14 of the House of Commons Culture, Media and Sport Committee, titled “Supporting the creative economy”. Having read the main part of the report, with a heavy heart at times, it seems to me that a better title for it would be “supporting the copyright lobby”.

The report can be found online here. I must stress that I have only read through the main report, not through the many pages of detailed evidence that accompanies it, and these are just a few initial thoughts, not a detailed academic analysis. I would also like to stress that I am commenting only on the sections on Intellectual Property – not the parts on Olympic and Paralympic legacy, Funding and finance and so forth.

Google as the enemy….

There are a few themes that shine through – and a two particular targets that the report takes significant pot-shots at. The first of these is Google – the report pulls few punches.

“We strongly condemn the failure of Google, notable among technology companies, to provide an adequate response to creative industry requests to prevent its search engine directing consumers to copyright-infringing websites. We are unimpressed by their evident reluctance to block infringing websites on the flimsy grounds that some operate under the cover of hosting some legal content.”

And

“We are deeply concerned that there is an underlying agenda driven at least partly by technology companies (Google foremost among them) which, if pursued uncritically, could cause irreversible damage to the creative sector on which the United Kingdom’s future prosperity will significantly depend.”

Now I’m not often a great fan of Google, but in this case I fall very much on their side of the debate. Regarding the first issue, to suggest that these grounds are ‘flimsy’ is deeply problematic: blocking any site from Google should be regarded as a big step. Access to information is a human right (part of Article 10 of the European Convention), so blocking legal information should never be undertaken lightly. Google knows this – and quite rightly resists the idea that it should block access to websites without due process. The use of the emotive term ‘flimsy’ in a report like this is unfortunate, to say the least.

As far as the second point is concerned, I am even more concerned. Many of those of us who oppose the current model of copyright enforcement don’t do so as a result of any ‘underlying agenda,’ let alone one driven by the likes of Google. We oppose the model because we believe that it isn’t working, that it suggests to many people – and particularly young people – that they are ‘bad’ or even ‘criminal’ without any real understanding of what they do and why. Much more than that, we oppose it precisely because we support the creative economy – we love music, movies and games, and want to find good, appropriate and effective ways to enjoy them. We want a new model – one that balances rights, and actually supports both the creators and consumers of content.

Dismissing Hargreaves

The other depressing theme in the report is the repeated undermining of the Hargreaves report – and indeed Professor Hargreaves himself. It feels almost as though Hargreaves is being dismissed because he produced the ‘wrong’ results – results that didn’t support the copyright lobby’s vision of how the world should work. One point, in paragraph 73, is particularly telling:

“We are not convinced by Hargreaves’ implication that a facility for private copying is factored into the purchase either of music or devices that store, play or copy it.”

Can I suggest that the committee spend a bit more time talking to young people about how they listen to music, play games or watch TV and movies? Perhaps even ask their own children, rather than just listen to the industry? That, indeed, is a depressing feature throughout the report – a seeming failure to understand how people actually consume content.

Is copyright working?

At one point (paragraph 68) the report says:

“We…  …believe that generally the existing law works well.”

Really? And works well for whom? When I ask young people if they ever download music illegally, it’s a rare young person who doesn’t admit to it. When I ask them whether they think downloading music illegally is ‘wrong’, it’s a rare young person who, ultimately, believes that it IS wrong. It’s also very rare indeed for them to have been ‘caught’ for illegal downloading. Can you really say that a law that is regularly broken, is very widely considered appropriate and is rarely effectively enforced is ‘working’?

Supporting the creative economy?

Very often it seems to me that much of the creative economy is thriving despite copyright law, not because of copyright law. By pursuing this path, by almost obsessively believing in a legal system that is deeply flawed, the committee is itself in danger of causing damage to the creative economy.

Perhaps it is the whole way that they are approaching the issue that’s the problem. There is an inappropriate obsession with piracy – missing the increasing evidence that those who download illegally are also downloading legally. The report says:

“…millions of pounds are being lost by the creative industries..”

Why focus on the revenue that they think is lost, rather than the revenue that is being generated? It is a primary negative approach – instead of looking to punish ‘offenders’, shouldn’t the focus be on how to make more money? Find more, better and different revenue streams, rather than clinging onto old, outdated and ineffective ones?

The report is worried about an ‘underlying agenda driven at least partly by technology companies’ but seems to have completely ignored the much greater underlying agenda driven by the copyright lobby. If they really want to support the creative economy, they could do with starting with a good look in the mirror.

Lobbyists: who pays the piper…

A few weeks ago I experienced first hand the role of lobbyists, when I saw them do their best to start steering the CREATe project in their own direction (see my blog here). In the time since then, two more issues have come up that have highlighted their significance – and why we need to be concerned. We should be looking much more carefully at their activities.

Copyright lobbyists

To recap, at CREATe it was the lobbyists for the ‘content’ industry – what might loosely be called ‘copyright’ lobbyists – who were trying to ensure that the project, which is amongst other things looking at copyright reform, did not dare to challenge their assumption that ‘piracy’ needs to be stomped on above all things. The copyright lobby is a very powerful one indeed, and has had huge influence on the policies of governments worldwide – in the UK, they still seem to have a firm grip on all the major parties, and were the key behind the controversial Digital Economy Act. They are, however, only one of the lobby groups that we should be watching.

Advertising industry lobbyists

The second emerging issue concerns another key lobby – the online advertising industry. For privacy advocates like me, the advertising industry as often been a bit of a bête noire – behavioural advertising in particular generally works through significant invasions of privacy – but their recent activities in relation to the ‘Do Not Track’ initiative have been concerning. They’ve been fighting tooth and nail to block Microsoft’s idea that DNT should be ‘on’ by default on Internet Explorer – and according to Alexander Hanff they’ve also managed to co-opt privacy advocates to help undermine the DNT specification itself, allowing for ‘de-identified’ tracking without any kind of consent.

There’s a long way to go on this one, but I’m far from alone in thinking that they’ll manage to pretty much entirely neuter DNT. As security expert Nadim Kobeissi put it in a blog post yesterday, DNT is becoming ‘Dangerous and Ineffective’. We can largely thank advertising industry lobbyists for that.

‘Internet Industry’ Lobbyists

The third and potentially most worrying of all the recent lobbyists activities to emerge is the story of US ‘internet industry’ lobbyists working to undermine the draft Data Protection Regulations. As the Telegraph reported:

“Tory MEPs ‘copy and paste Amazon and Google lobbyist text'”

As I also experienced first hand at the Computers, Privacy and Data Protection conference in Brussels earlier this month, industry lobbyists particularly from the US are very concerned by the proposed Data Protection Regulation, partly because as drafted it would allow them to have the power to actually fine industry groups a meaningful amount of money – 2% of their global turnover – the kind of fine that would actually make a difference, and could actually make them change their activities.

Making changes….

That’s the key – indeed, the key for all three of the lobbying stories above. A resistance to change. The copyright lobbyists don’t want to have to change either their business model or their approach to enforcement. The advertising industry don’t want to have to change their privacy-invasive way of tracking people. The ‘internet industry’ companies don’t want to have to change their way of gathering and using people’s personal data. And in all three cases, they don’t seem to really care what people want or care about. In the copyright lobbyists example, as I noted in my blog at the time, they seem to be resisting even the gathering of evidence. In the other two cases, I suspect the same is true – because the more evidence that comes out, the clearer it is that people do care about privacy and don’t want to be tracked.

It’s not US vs EU

One of the most common arguments made in these cases is that it’s some kind of a Transatlantic conflict – a ‘cultural difference’ between the US and the EU. We in Europe are trying to ‘impose’ our values onto the US. Is it true? Well, the most recent evidence suggests otherwise – indeed, it suggests that people in the US care every bit as much as people in Europe do about privacy. According to a recent survey, 77% of Americans would select ‘do not track’  if it were available – putting them above many European countries, below only France. As David Meyer put it: ‘Think Europeans are more into data privacy than Americans? Think again.”

I suspect he’s right – and the divide isn’t a Transatlantic one. It’s a divide between individuals everywhere and the industry lobbyists. Lobbyists, by their nature, look out for those they’re lobbying on behalf of. Of course they do – that’s their job. We need to understand that – and act appropriately. What the lobbyists do should worry us – because they don’t serve our interests. Who pays the piper calls the tune – and it’s not us!

That’s not to say that they don’t have legitimate interests – they do! What the industries they represent do is crucial for all of us, for the future of the internet. However, it does need to be balanced, and right now it looks very much out of balance.

CREATe and the copyright lobby…

From the moment Coaliton MP Jo Swinson (she’s a Lib Dem, apparently, though from her talk she was indistinguishable from a Tory) gave the opening speech at the CREATe launch event, the tensions were apparent. CREATe (whose website is here) is a huge new project, which in its own words ‘is a pioneering academic initiative designed to help the UK cultural and creative industries thrive and become innovation leaders within the global digital economy.’ Four years, funding of more than £5 million, primarily from the Arts and Humanities Research Council (effectively government money) seven universities (including my own, the University of East Anglia) and academics from a wide range of disciplines make it something very, very ambitious – and also very important. And yet, right from the start, it’s under enormous pressure – not least from the copyright lobbyists.

Swinson’s speech emphasised money, money and more money – and particularly all the wonderful things the coalition was doing to support the digital economy. By that, from the perspective of many of the people I spoke to in the audience, what she really meant was to support the existing ‘creative’ industry… and by that she really seemed to mean to do what the copyright lobbyists have told her to do. And those lobbyists were all too obvious by their presence at the launch event. They were relatively easy to identify even if you didn’t read their name tags or know who they were: they were the ones who made a point of mentioning how evil all those pirating content were, and how we need to clamp down on those pirates before we do anything else. Sometimes they could manage a couple of relatively neutral or even positive statements before mentioning the need to clamp down on pirates, but I don’t think any of them managed to get through a comment without bringing it into play. I’d like to make it clear that by lobbyists I’m not referring to the musicians themselves, or even any of the many excellent people involved in music production that I met over the launch event. Many – most – of them understood the issues very directly, and in a way that an academic like me could not hope to. They, however, weren’t the key to the problem – the lobbyists were a different kettle of fish.

The audience was very varied. There were lots of academics from all of the universities involved, and a fair number from other universities too. There were lawyers in the field of intellectual property, there were representative of the IPO, there were people from civil society, there were people from consumer groups (including the excellent Saskia Walzel from Consumer Focus UK) and there were even some of the real ‘creative’ people, musicians, artists and writers – SF writer Charlie Stross’s excellent account of the history of the eBook was one of the highlights of the event. Another was when the keynote speaker, social entrepreneur Dr Frances Pinter made a special mention of the sadly missed Aaron Swartz.

What was particularly good was that most of the people from all these different backgrounds and interests seemed to be open minded and excited by the prospect of CREATe. Most of them – all of those that I spoke to – saw this as an amazing opportunity to do something really important, and to address a real challenge. We almost all seemed to recognise that this is a very, very difficult issue, and that we need to be open-minded and creative in looking for new ways to deal with a very thorny problem. We almost all seemed to realise that the current system doesn’t work – and that something different needs to be tried.

All of us, that is, except the lobbyists, who still seem to believe they have the solution – which is to hit the pirates harder and harder and harder. Some were open to other solutions too – but only after we’ve clamped down on the pirates. It didn’t matter what everyone else said, whether it was those wondered about the ultimate result of alienating or criminalising a generation of young people, or those like Saskia Walzel who suggested that a first point might be to provide a good, cheap, reliable, timely and user-friendly legal source of all the material, or even those who asked for any evidence that the clampdown was working….

…indeed, that last point was the real sticker, and cuts to one of the crucial points about CREATe. A key idea is that some of the CREATe projects will be gathering evidence – and attempting to determine what’s really true about what’s going on. Indeed, the first publication from CREATe is a piece about what will actually constitute evidence from the many, varied perspectives of the different groups involved – you can find it here. CREATe represents an invaluable opportunity for this gathering of evidence – to have the money, the expertise and the time for the kind of research that can really look into this is something very, very special. And yet even before the launch event had finished, not even a day into the four year project it appeared that the lobbyists were already trying to suggest that the project was likely to be unfair and biased. The question that immediately springs to mind is what are they afraid of? Don’t they want real evidence? Are they worried that the evidence will suggest that their current models both of business and of enforcement are flawed and ineffective? Are they afraid that CREATe will help put together new business models – and that the new environment will have no place for the ‘old’ content industries?

Any or all of that could be true – but only time will tell. Time and a great deal of academic research. The trouble is, from the very start CREATe is going to be put under huge, huge pressure to produce the results that the lobbyists want. That pressure is already being applied….