New copyright bill obsolete before it is written?

Sunday September 13′th is the last day make your voice heard in the 2009 copyright consultation.

One of the goals set by the Ministers is that a new copyright act should stand the test of timegiven technology and business methods change fairly quickly, whilechanges to copyright law are necessarily much slower. It is my beliefthat any copyright bill that starts from the suggestion that we shouldbe ratifying the 1996 WIPO treaties is obsolete before it is writtengiven these treaties were backward facing when they were envisioned in1995.

We should also learn from economics texts such as The Innovator’s Dilemma(When New Technologies Cause Great Firms to Fail, by Clayton M.Christensen), and allow those historically great firms and industriesto dictate policy which will harm Canada’s competitive position in theglobal economy. We should not be looking to the members of the International Intellectual Property Alliance (IIPA)(BSA members such as Microsoft, Apple and Adobe, RIAA, MPAA, etc) foradvise, but to their emerging competitors. These competitors areadopting alternative business methods, and thus seem far more likely todominate future markets: assuming governments don’t manipulateotherwise free markets to the benefit of yesterday’s companies.

It’s hard to talk about competition to the industry associationsrepresenting the old way of doing things without highlighting Google(Note: If you don’t know who they are, just Google them and find out;-). As Google grows as a company they have entered into markets thatcompete with many of the members of these older associations.

While they started out with a search engine, the way they monetizedsearch was through advertising. Google is able to target advertisementsin ways that old media companies could only dream of, and have beenable to grow a massive advertising network from this. This has allowedmany creators who might traditionally have worked as journalists forprint media publications to write online and get paid advertisingrevenue more directly through Google. This competes with traditionalprint media from both sides, with both advertisers and professionaljournalists moving from print media to online with the help of Google.

Google is about to do to both the traditional book publishing andcable companies through Google book search and YouTube what Apple’siTunes started to do with the music industry. By enabling creators toskip traditional intermediaries they will one by one be replacing thesetraditional companies, but where creators and audiences are more incontrol of their own destiny. I know I’m looking forward to being ableto get rid of my Cable TV package and replace it with subscriptions tolegal online DRM-free content. It will allow me to choose theprogramming I actually want, and far more of the money I spend (oradvertisers are spending) will be going into the pockets of thecreators.

What Google is doing in telecommunications is as interesting. Theyhave a cell phone operating system with Android which currently allowspeople to connect to traditional carriers, but their involvement in spectrum auctions and Google Voice suggest the direction they are headed in the future.

Google was already seen as a competitor by companies like Microsoft in online properties, but with the announcement of Chrome OS.While this is an operating system based on some of the sametechnologies as a Linux desktop operating system, I see the promise ofGoogle making (and marketing) their open source platform to a massmarket that traditional commercial Linux companies have not been ableto do. Targeted at lower cost (and lower power consuming) netbooks,Google has recognized something that many others in the open sourceoperating system markets haven’t yet: that the traditional desktopcomputer doesn’t matter as it is largely going away.

My brother works at a company that started out developing a desktopoperating system, but has moved into other markets including emailservers. While they dabbled in netbooks (small computers intended to beused for networking like the ASUS EEE PC), I’m told the operating system side of the company has no future. To put it in another way: “I see dead people.” “They only see what they want to see. They don’t know they’re dead. ”

It is interesting to watch what Google is doing, and compare it withsome of their old-economy competitors. Apple is helping to open upmarkets such as for portable smart computers (you may talk into it, butan iPhone isn’t just a phone), and paid audio and video distribution.One of the things that define Apple, however, is that they are a veryclosed platform: it is the trait that allowed Microsoft (then a muchmore open company) to focus on developers and leave them in the dustduring past market transformations. Now that Microsoft is as closed asApple, and both very tied to that older way of thinking abouttechnology, both will be left in the dust by companies like Google.Even with poor hardware (Google’s G1 wasn’t that great), there is a growing number of previous iPhone and BlackBerry fanatics that have moved to Android.New handsets are on their way, and I hope that this batch includesulocked GSM phones that I will be able to put my SIM card into.

Google is starting with an open platform at a time when Apple isalready being asked questions from the USA’s FCC about the nature oftheir excessive control over what owners of the devices are “allowed”to do with these locked devices (IE: Apple has the keys, not theowner). Apple’s responseis entirely of the “father knows best”, ignoring the fact that theyhave taken the keys of important communications technology from grownadults who should be treated respectfully as property owners..

If anyone wants to learn more about what Google is going, I recommend This Week in Google from the TWiT network. The August 30 episodeincluded some pretty interesting things that tie into the musicindustry. They spoke about how young people who last years asked forand received as gifts coupons towards the purchase of music. This yearthey asked for and receiving as gifts coupons towards mobileapplication stores. Mobile applications are the new content, and arequickly becoming yet another replacement for buying power thatpreviously went to the music industry. This will lead to even greaterdeclines in the recording industry than we have seen already.

As I suggested earlier this week, I believe the recording industrywould be seeing similar (if not worse) declines in their revenue evenif there was not a single copyright infringement. This should not beseen as a terrible thing for governments to “fix” given software plushardware can easily be much larger than the content industry. We shouldnot give up the larger number of jobs in these industries in order toprotect business models previously used by the content industries.

I always think of a conference where a representative of Intel saidthat they were not worried about content companies and any harm theycould cause with their promotion of legal protection for technologicalmeasures. He said that if ever these companies were lobbying for thingsthat didn’t benefit Intel (and DRM is something that benefits Intel asa DRM provider), then they would just purchase the major labels andstudios and put them back in line.

What does all of this have to do with Copyright?

As examples, Apple and Microsoft as companies are stuck in the waythings were done in the past, and have lobbied the Canadian government(directly and indirectly through the BSA, IIPA and the USTR) towardspassing backward facing legislation.

A summary of the round tables said this of the participation at the Toronto Round Table by Google’s Jacob Glick: Expanded fair dealing, safe harbours for ISPs and search engines,circumvention for non-infringing purposes, monetize P2P, copyright isnot a zero-sum game.

I recommend everyone read what Mr Glick saidand his good-news story about how Google helps content creators whoactually want to get paid (rather than want excessive control – not thesame thing). Google has been part of the Business Coalition for Balanced Copyright which has forward looking policy suggestions.

The message to the Ministers is simple: If you want copyright tostand the test of time you should be seeking advise from growingcompanies looking towards the future like Google who are trying to helpboth audiences and creators benefit from modern technology. Policymakers should not be taking advise or emotion-laden (but content free)directives from the types of companies whose associations make up theIIPA which are looking backwards to the “good old days” when they had astrangle hold on markets to the detriment of both creators and theiraudiences/customers.

Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada’s Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.

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