The government has come up with a clever answer to the digital rights problem, but Jeremy Phillips thinks it is no solution at all.
We Brits share a small problem with the rest of the world. We are caught in the middle of a struggle between lobbyists for the various factions in the digital sector.
First, there are the creators and publishers, who want to control access to their new works to maximise the money they can make from them. Then there are the carriers of information, who want no-sweat, no-liability dissemination.
Next comes the public, who wants as much content as is available, at the least cost. The public has demonstrated an enduring preference for receiving an inexhaustible supply of advertising as the price for not having to pay for the content.
Finally, there are the hardware manufacturers, which want their goods to be as convergent as possible and fear that consumers who have to pay for their digital privileges will have less to spend on digi-toys.
So, what does a government do when it is faced with an intractable intellectual-property, media-communications problem, strident lobbyists and insufficient time to listen to them?
In the 'Dark Ages' the solution was to set up a commission of inquiry and appoint a judge — neutral, harmless, good at listening, great at spotting typos and split infinitives: example, Mr Justice Whitford's report on Copyright and Designs, 1977 — to preside over it and ask each side to vent its spleen.
In a set of magisterial recommendations, the judge would decide which spleen was the more palatable. Membership of the Common Market did little to change things, other than to invite the judge to consider whether the recommendations were Euro-friendly. Lobbyists tried their luck with the European Commission, found its own agenda was longer than theirs, and promptly trotted back home again.
The 'Middle Ages' saw some modifications to this time-honoured model. The judge — old-fashioned, out of touch and law-bound — was replaced by the Good Guy, who was media-savvy, old enough to earn the confidence of the old establishment but sufficiently modern to tell his SMS from his iPod. The archetype here is Andrew Gowers's review of intellectual property, 2006.
The Good Guy's role was to demand economic evidence in support of any proposition of which his team of bright young things from the civil service did not approve; rebrand lobbyists as 'stakeholders'; make recommendations for conspicuous changes in style; and set tight timetables that would keep all warring factions gasping for breath.
However, neither the Dark Ages model nor its Middle Ages replacement ever succeeded in doing the one thing any government wants — to get the lobbyists off its back once and for all.
The present government has hit on a novel approach. If you can't silence the opposing demands — and giving in to one means listening twice as much to its equal and opposite number — the solution is to change the environment. So, the government's answer is: don't set up an enquiry, set up a digital-rights agency instead.
The proposed agency has no specific legal remit. It may be a think-tank, an arbitral body, a talking shop, a digital brothel or anything else its passengers so desire. In brief, it is a vehicle looking for a payload and will give a ride to any stakeholder who comes along.
But what specific type of vehicle is this rights agency? Perhaps it is a sort of time machine. Rather than worry about little things such as rights infringement, market barriers, price-fixing and the efficacy of collective licensing, it can start from a point in time when no-one thinks file-sharing, copying or plagiarism are wrong and build a socio-economic model around prevalent popular opinion.
Freed from the fetters of morality and the tiresome norms of international law, the agency can propose such off-the-wall solutions as social-welfare credits for composers and authors, or automatic celebrity status with the right to appear on reality TV and refunds for anyone who has paid good money through a digital-rights management system, when they could have had their downloads for nothing.
Jeremy Phillips, intellectual property consultant to law firm Olswang and professorial fellow at the Queen Mary Intellectual Property Research Institute, is a research director at the Intellectual Property Institute. He is a member of the IPKat and Datonomy blog teams.