Rights holders ponder the death of copyright

Westminster eForums are generally fairly dry affairs but, perhaps due to the passion of the creative industries, yesterday's copyright shindig was an extremely lively affair.

The debate came in the wake of the passage into law earlier this year of the Digital Economy Act. As we reported yesterday, the libertarian Tory peer Lord Lucas noted at the event that many in his noble House were keen to review the act, but that was little surprise — he was a longstanding opponent to many of its terms.

What was more surprising was the view of almost everyone there that the penalties described in the act — things like bandwidth throttling and perhaps disconnection of repeat infringers — would not work. This was a room full of music and broadcast industry representatives, civil servants and lawyers (lots of lawyers). The only ones who could muster any enthusiasm for Mandy's package were a few of the lawyers, presumably rubbing their hands in glee at the thought of the many, many looming court cases that will follow the application of the penalties.

Vanessa Barnett of BLP Law kicked off proceedings with a cheerfully downbeat assessment, comparing the current landscape with that of her teenage years, when peer pressure stopped her from copying CDs and, presumably, thus killing music.

"That's the thing that's changed — people don't feel in their hearts like it's wrong," Barnett said. "It's quite clear that we've lost the battle over hearts and minds for compliance with copyright law, and a law is only good as the society that's prepared to accept it."

"We may now need to accept that times have changed, that society now places a different value on what it is that we all do," Barnett continued, suggesting that allowing people to share digital copies of content "within a certain threshold" would be "acceptable collateral damage for the wider health of the online media industry".

Jill Johnstone of Consumer Focus also called for "a non-commercial use exception". Hospital Records' Matt Riley bewilderingly noted: "We want people to copy our music and share it, but it's a problem when people can go online and get it for free" (I see his point but try codifying that in law!).

These good folks were, however, only the warm-up acts for Peter Jenner, erstwhile manager of Pink Floyd, T. Rex, The Clash, Ian Dury et cetera:

The market is going to be pushing the price of a digital price towards zero — that is an inescapable reality. We're fighting against economic reality. There is no limit to the number of files that can be copied. Distribution is being taken away from the corporations.

Attempts to stop people copying are clearly a waste of time, and not only are they are a waste of time, they make the law offensive. It's analogous to prohibition in the 1920s. The public want new content — they have an inexhaustible demand for new content. The creators want to go on writing songs, games and books. As an industry we have to start thinking about how we rebuild that model so that the creator can make money from his or her creation, and so that people who help make a return on their investment, and that the public can utilise the technology without worrying about it.

People are sensible and by and large do not drive at 120 miles per hour on the motorways. In the same way, people do respect the fact that creators need to earn a living. We have to rethink the fundamental business models that we have. We have to rethink the fundamental ways in which we pay for the creators and we provide an investment route. We have to find a new channel of revenue.

Models for the new system, Jenner suggested, could be radio (we pay the BBC licence fee) and commercial TV (we watch adverts to pay for content)....

If we could get £1 a month from every person on this island for music, it gets us very close to the current value of recorded music. We have to start thinking radically and we have to stop thinking about copyright law and how we can adjust it. We have to think about how to rebuild copyright law in a digital realm where you can't stop copying. We need to get rid of exclusive rights and get into remuneration rights. We need to think about service not product — record companies have always been in the product game.

I do recognise my attack on copyright is a brutal attack on property rights and on capitalism, but the speed and the fundamental nature of the change is so great that it requires really radical, really serious thinking.

Cue a smattering of applause, and some disagreement over whether copyright is or is not a property law — Lord Lucas argued against, describing it instead as "a compact between consumers and the creators".

But still the anti-copyright arguments flowed, and from the heart of the industry itself. Featured Artists Coalition chief Jeremy Silver also called for "a new framework" to recognise the fact that reproduction and distribution was out of the industry's hands. He laid the case for a "compulsory collective licence", based not on Jenner's proposed £1-per-citizen-per-month, but on "monetising the P2P, monetising the illegal transactions".

"There is no silver bullet," said, er, Silver. "But there is a notion that is starting to gain ground about a central rights registry, a database that lives on a network that knows everything about the content that's out on that network. The problem about it is this need to track... consumers may not be so happy about that, as more will be known about them individually than there was before."

Make of that what you will. In any case, Silver pointed out that the rights registry could not cover the existing "back catalogue" of content. It would be about "starting fresh from today". He also noted that it "doesn't have to be monopolistic... it can be federated... we don't have to have a single registry".

"We are trying to make metadata sexy," Silver added for good measure, while also pointing out that net neutrality was crucial to such a plan.

So, more than a little food for thought, then!

Music management legend Peter Jenner earns scanty applause at the copyright/file-sharing eForum