Copyright

Record label angst

If the last three generations (five years = one generation) of music industry executives had been contestants on The Apprentice they’d all have been fired by now. So many self-destructive manoeuvres, so many technological and commercial dead-ends, so little readiness to try stuff. And I speak as a supporter of the industry: I don’t believe the whole superstructure of music production, packaging and distribution could or should be swept away or that labels and publishers and collection agencies and allied trades are evil or at some kind of Darwinian inflection point.

The 100 year history of recorded music is a glorious episode in the story of human culture and we should celebrate that. The risk, though, is that the current mess turns into some kind of terminal crisis. We might easily wind up remembering that hundred-year heyday as a story with a beginning (recording, mechanical reproduction, Caruso), a middle (CDs and the shift to bits) and a particularly grisly end. Nobody wants that.

There’s a good interview over at Paid Content with Terry McBride, one of the people who could, if the industry were ready to listen to him, help save recorded music. Real wisdom there.

I’ve been really trying to get to like We7, Peter Gabriel’s latest, ad-funded, online music business, but it’s not working. There’s a lot of good stuff there and it’s all free but the ads are utterly intrusive. There’s no way around it, they just ruin the music. Every track has a short ad inserted at the beginning and sometimes this is just bizarre (try listening to Lou Reed’s miserable classic Berlin with chirpy ads between the tracks, or to Shostakovich’s vast, mournful 13th Symphony) but it quite quickly becomes utterly unbearable.

The good news is that if you download a track you’ll find that in a month’s time you can go back to the site and download it again without the ad. It’s also pretty straightforward to remove the ads yourself (and that’s not forbidden in the site’s T&Cs). But it’s all pointless. Most current or popular stuff, such as that from Sony BMG, We7’s first major label signing, can’t be downloaded anyway—you can only stream it, which makes the ads unavoidable.

So I wonder if there’s an audience that won’t be driven crazy by the ads. Is it possible that teenagers live in such an altered musical world, for instance, that they can accept commercial messages as part of an increasingly heterogeneous audio stream? If you’re accustomed to soaking up your beats from the tiny speakers in a mobile phone, maybe ads are less of an intrusion—you just tune them out. Or maybe it’s got to do with the passing of the album—ads are not a big deal if you’re not hung up on the integrity of the carrier. If you consume music track-by-track from multiple free sources they’re not interrupting anything after all: they’re just the cost of the music you love…

Freeing content at the BBC

I had a bit of a whinge over at Speechification earlier on about the BBC’s content archiving policy. I find it frustrating to say the least that Heather Couper’s epic history of astronomy, Cosmic Quest, which has been running on Radio 4 since May, will now be withdrawn from the public domain all together.

The BBC’s standard line here—and it’s not an unreasonable one—is that the Corporation can only afford to buy ‘first run’ or otherwise limited rights to shows like Cosmic Quest and that if it was obliged to pay for ‘in perpetuity’ rights the additional cost would block the purchase of other good stuff and thus ultimately limit the choice provided to licence-fee payers.

This is undoubtedly true but also defeatist and essentially an inadequate response to the changing imperatives of the network era. The BBC needs to be braver and more committed to change. Here are a few things that could and should be done to unlock more good content for public use:

The BBC should free access to content that has limited (or zero) secondary value. That’s not to say content that’s no good: just stuff that can’t easily be sold on or exploited after it’s been transmitted. Lionel Kellaway’s brilliant Radio 4 programme about Rooks (a favourite of mine) is an asset of great beauty and immeasurable value to its listeners but, let’s face it, hardly any value in an open marketplace for audio content.

The BBC should be a rights innovator: hybrid methods of preserving public access to assets and commercial value to creators and license-holders should be developed and tested on real content. Not easy and not possible without compromise on both sides but the Corporation is uniquely placed to drive innovation that’s beneficial to UK licence fee-payers.

The BBC should be a copyright activist. Legislators should be lobbied to help redesign copyright law to preserve access to orphaned assets: content that’s not being exploited but can’t be freed because it still has a nominal owner. The Corporation should fund work to design use-it-or-lose-it laws and other innovative devices that emphasise access and public benefit over predatory and unfair protection.

The BBC should set targets for freeing content. By defining and prioritising categories of assets that should be freed, the BBC could drive the accumulation of a big pool of useful material held in the public domain permanently. Announcing in advance that certain content categories—perhaps whole channels or strands—are in future going to be purchased for permanent public access would encourage creators to get on with it and adjust their pricing and commercial terms for the new climate.

The goal should be to define and then grow the pool of free-to-use, public domain content archived at bbc.co.uk and not to apologise for the inflexibility and intransigence of rights-holders and exploiters. The potential gain for UK Plc and UK citizens could be enormous. The “there’s nothing we can do about it , guv” response must be made a thing of the past.

The BBC common platform debate

Last Wednesday’s common platform debate at Broadcasting House was a hit. We talked for nearly three hours plus time in the pub afterwards. Mike covered it (live) over at Techcrunch UK (and I know the event was recorded in some form) and other bloggers have written it up (although at least one was actually watching the football!).

The topic—the BBC’s role in a post-broadcast public service ecology—is clearly going to be a very rich and productive one. Here is my summary of the event’s interesting bits, organised under useful headings. I was chairing the event so I wasn’t able to take proper notes—this is mostly from memory. Please chip in with your own recollections if you were present.

There’s a lot the BBC could be doing.

We’re ten years+ into the network revolution and the BBC’s impact so far has been a raft of quality content on multiple platforms (like this weekend’s quite awesome Glastonbury coverage) and very little else: hardly any of the kind of gutsy innovation the nation and the economy need. We’ve seen cautious incremental change when the circumstances (demographic and economic change at home, rampant growth in our most important competitor economies, environmental change of unknown scope…) demand courageous leaps in the dark.

The BBC is the nation’s most important machine for the production of consensus: nervous, go-slow adoption of common platform goals just won’t do. Tom Loosemore, who used to work at the BBC and now divides his time between Ofcom and The Cabinet Office, provided a handy seven-item list of things the Corporation ought to be sharing which I will now crudely paraphrase and expand (Tom would want me to point out that I’ve added quite a lot to his list in case any of it is traced back to him, causing him to be thrown from a high window in Downing Street):

1. Research. The Corporation produces (and pays for the production of) huge amounts of proprietary audience research, much of it hardly used. This should be made available to business and community, preferably in a useful, nicely-tabulated form.

2. Code. All code written at the BBC should be published under a suitable Open Source licence (Azeem Azhar was conveniently on hand to rehearse his BBC Public Licence idea from 2002). There’s really no excuse for this. It’s not obvious which licence would apply but if there isn’t one out there, one should be invented.

3. Data. The BBC produces and buys lots of data: from TV listings to electoral data. Sadly, much of it is not owned outright and some has even been stupidly given away (like the TV listings gifted to Red Bee on privatisation). What data the Corporation does own outright, however, should be made available freely.

4. Tools. The BBC should be obliged to give away or at least develop nationally-useful tools. Tom’s examples were geolocation and some kind of UK blog search tool. Others came to us in the pub afterwards but I’ve forgotten them.

5. Incubation and investment. The BBC could ‘do a Channel 4’ and seed a whole layer of productive and profitable new media production and technology businesses. Production quotas should be enlarged and a framework put in place to support startups and small businesses in the sector (analogous, I suppose, to the cost-plus budgeting methods used in TV production).

6. Traffic. This could be huge. The phrase ‘trusted guide’ has been current at the BBC since John Birt discovered the Internet in 1995 but it’s never been given meaning. Institutional caution has stopped the Corporation from linking to more than a handful of external sites, and always via a forest of disclaimers. It was pointed out at the debate that the addition of MusicBrainz to the BBC’s music sites adds something like 3 million external links so that’s a start I guess!

7. The Internet. The BBC shouldn’t attempt to augment, enhance or wall off any part of the Internet. The BBC’s endorsement of net neutrality is vital. The Corporation should build on freely-available net tools and services and avoid duplication at all costs.

Rights are a big deal. And they’re not going away.

Outsiders are impatient with the BBC’s rights regime. They want uncomplicated one-stop access to BBC content (and not necessarily for free) but instead they get a spaghetti of overlapping rights owners and regimes. Only the simplest and most directly-owned content can be shared easily: one example cited was Melvyn Bragg’s In Our Time: live speech recorded in a BBC studio with expert contributions paid-for outright and no music. But a tiny proportion of the Corporation’s daily output belongs in the In Our Time category. Even historic and archive material is often encumbered by multiple rights owners (or potential rights owners) and the BBC’s own commercial arm has its own agenda and often has first call on original content.

Two lessons. First: if you’re a tech or media entrepreneur and your business idea needs access to BBC content, think again. Building-in any kind of dependency on the BBC’s rights regime will scare away investors faster than bird flu. Second: the BBC could simplify the regime and persuade (read: force) rights owners to participate, especially for old and potentially neglected material that is unnecessarily encumbered. The key here may lie with legislators who could help by reasserting the BBC’s larger purpose and agreeing to compromise the inalienable rights of content owners and creators a little in return for a more open environment (pay attention Cliff Richard).

BBC new media managers are not the problem

On the evidence of Wednesday evening’s showing, slow progress in building a common platform in Britain is not the fault of the managers building it. Tony Ageh, James Cridland, Jem Stone and other BBC staff present are evidently all passionate drivers of change (and I know many others like them inside the Beeb). In many respects they were the most forward-thinking people in the room: Tony Ageh’s suggestion that he’d like us to be able to right-click on any asset at bbc.co.uk to get a pop-up detailing its ownership and rules for use was particularly inspiring. Presumably many years spent wrestling with a highly-regulated, historically-cautious tax payer-funded monolith has produced a pragmatic approach to achieving change but there’s evidently no absence of enthusiasm for it.

Channel 4 is ready to help

It’s not all about the BBC. Jon Gisby, Channel 4’s new Director of New Media, spoke with what I’d characterise as cautious enthusiasm about the station’s status as a ‘convening brand’ (that’s a technical term. Look it up) and about its potential to provide a £50M springboard for UK tech and media businesses via the fascinating and so far enigmatic 4IP fund. More than one person used the analogy of Channel 4’s seeding of the British independent TV production business 25 years ago. Gisby nodded.

I’d certainly like to see Channel 4 function as a cheeky and innovative counterweight to the BBC in building out the common platform. The potential is clearly there in 4IP.

The BBC has a history of engineering leadership

All sorts of technical innovations were invented at the BBC and then spread into the wider industry. James Cridland put it like this: “we agree in technology and compete in content”. An organisation accustomed to sharing its production and distribution tech but closely guarding the programmes made with it will inevitably find it hard to shift to a new model. One where technology leadership has been replaced by open source collaborative methods and where content is freely shared.

Tech entrepreneurs don’t care much

On the evidence of our debate there is no real clamour for access to BBC resources from the UK tech startup industry. In fact there’s significant mutual ignorance. Startups don’t know how to access the BBC’s fund of good stuff and the BBC doesn’t know who might want it or in which formats. Entrepreneurs heard at the event said things like: “who do I talk to about access to historic news content?” and “how do I get a commercial agreement for use of programme metadata?” I think for most people—adventurous tech startups included—the BBC is part of the woodwork, practically invisible. The idea that it might function as an enabler for enterprise or community is not widespread. There’s work to be done there.

There were many other fascinating strands to our debate—the BBC’s monopolistic behaviour in some categories, market failure in others, the absence of true APIs and other easy methods of calling on BBC assets, public value tests… to name a few. I’ll try to return to some of them here. Others have covered the debate elsewhere. I’d like to see a follow-up meeting soon. I’m also planning to put up a web site (probably a wiki) for the further discussion of these matters. Do let me know if you’d like to help.

Thanks to Mike Butcher for putting the considerable weight of TechCrunch UK behind this. It was his initial post that got things going in the first place. Thanks to all the panelists, all of whom have important jobs to do and better things to be doing with their Wednesday nights. Thanks in particular to James Cridland who organised the venue, catering and lots of other stuff for us, as well as being a trenchant panelist and defender of the BBC’s honour! Thanks finally to attendees and bloggers who made the thing lively and interesting!

Creative Commons

Let me get this straight right up front: I think the public domain is critically important to human advancement, I think the net is its most important representative on this plane and I think copyright is out of control. I also think that Creative Commons is a fascinating and practical new approach to networked copyright (Danny explained it here and mirrored a useful flash presentation).

But… then let me go on to say that I dislike orthodoxy of every kind and that, in the clamour to roll back or abolish copyright law and in the profusion of alternatives, I see an emerging orthodoxy – the public domain is in crisis, creativity and innovation in peril, copyright owners returning us to the dark ages. The story neatly collapses together lots of hot geek issues – like open source, unbundling Microsoft and Web Services – and it pulls together lots of clever and useful minds – like Kahle, Lessig, Barlow and about half a million bloggers – but it’s not an open-and-shut case.

Where, for instance, is the actual damage caused by extended copyright protection for books? Who is actually suffering under the silly provisions of the DMCA and won’t the whole thing be thrown out bit by bit by various courts? Are the record labels hurting anyone with their suicidal mis-application of resources in file sharing?

I blogged the public domain in more detail in June here.

“Obscurity is a far greater threat to authors and creative artists than piracy” – Tim O’Reilly

I’ll join the throng bookmarking this cogent defense of file sharing from publisher Tim O’Reilly. Tim is the man who made a fortune by selling his early portal, the Global Network Navigator, to AOL and has been able to pursue the life of the Libertarian Gentleman Publisher ever since. His books (with their beautiful Dover Press animal woodcuts) are the backbone of the geek culture and his conferences and events increasingly organise the whole geek mindset.

Hilary’s thirteen years war

I tried to date Hilary Rosen’s battle with the demons of high-tech. Perhaps I shouldn’t have been surprised to find this Usenet reference to her 1989 opposition to Digital Audio Tape (DAT) – perhaps the only real victim in recent years of the rights owners’ zeal. DAT was confined to a ‘pro-only’ ghetto after a prolonged battle with the music biz saw the imposition of an early DRM system and an artists’ levy. DAT is long forgotten but, with hindsight, should the rights owners have learnt from developing product for an early digital platform instead of just killing it? Would those lessons have been helpful in responding to the out-of-control misbehaviour of the new generation of digital consumers? That would be a ‘yes’.

A chink of light for file sharing

The FT reports that, in one market at least, file sharing may finally be damaging CD sales. In the US, three years after downloading became widespread and a year after the total number of tracks downloaded first exceeded the number sold, CD sales are down only 5% – the jury is still out. In Germany, though, sales are sharply down (9.2% year-on-year against a European background of increasing sales) and CD burning looks like it’s become a national hobby (a quarter of households has access to a CD burner).

Assuming that the German numbers are real and that cause and effect are established (not a done deal), this is big news for the music industry in its war of attrition with the file sharers. The people of Germany are replacing their CD collections with MP3s – real, mainstream economic substitution is under way. History tells us that once a new media technology becomes popular the terms of engagement must change – from pitched battle to subtler combat and ultimately to accommodation. This has been true for all of the existential threats perceived by rights owners – from the gramophone to radio to minidisc. The people who run media businesses are not stupid and, once the customer has spoken, the damaging legal phase of the battle must end. Product and business innovation must now take over. The labels will quickly adjust to what is becoming a mainstream consumer activity. Although nothing can be taken for granted and you probably shouldn’t bet your last tenner that any viable media businesses will survive the MP3 era, precedent is eloquent. Record labels (and movie studios, for that matter) will survive, adapt and thrive.

No real good could ever have come from this period of conflict. Now that it’s coming to an end, we should see more cool applications ? an ocean of legal content organised and interconnected by the tech upstarts’ clever code ? and more humility from the RIAA. Incidentally, Universal Music just announced an extension to their downloading experiment. They’ll permit their eMusic subscription service to distribute a thousand neglected albums from the label’s back catalogue. This makes sound, undogmatic, commercial sense. Back catalogue was always going to be the starting point for the next wave of digital distribution – returns have withered and investment is long finished so commercial risk is low. It’s directly analogous to the way the movie studios created a new source of revenue by packaging movies as VHS tapes. Is this the beginning of the end of the file sharing wars? It’s a start.

(you may need to be a subscriber to see the FT article).