Events

Social Market Foundation Conference - Debate on the Gowers Review
Panel speech by Emma Pike, Chief Executive, British Music Rights
2nd March 2006

Intellectual property is no longer the preserve of an exclusive and rather small group of specialist lawyers. It has become a matter for public debate and at times in the past that debate has been polarised.

So it's really encouraging to see that we have moved beyond the "copyright or no copyright" debate and are now in a position where we can look with pragmatism at what needs to be done to adapt our intellectual property framework for the digital and global age. We have established that intellectual property is the currency of a knowledge economy and that if Britain is going to compete internationally using its creativity, and its innovation, we need to make sure that our intellectual property framework is as flexible and cost efficient as possible and that it continues to remunerate creative individuals, most of whom are freelance, on whom our creative industries are based.

Before I touch on a few of the practical areas where my community of composers, songwriters and music publishers feel there is a need for the Gowers review to focus its effort, I'd just like to say a few words about the copyright framework in general, really to respond to some of the things that have been said at other seminars this week. Anthony suggested that copyright is a blunt instrument. I agree with Anthony on a large number of things but that is not one of them!

At its most basic, copyright gives rights to creative individuals. They don't have to do anything to get those rights, it can help if they put a little 'c' in a circle at the bottom of their work, but there is no formal registration process, so therefore there is no business cost whatsoever to copyrighting a piece of work. Once creative individuals have created their work, it is completely up to them what they do with it and the rights contained in it. This makes for an incredibly flexible system which serves a multitude of different business models. And this is born out by state of the music market at the moment. Sorry to mention the Arctic Monkeys - who'd have thought that a band from Sheffield would become such fodder for copyright conferences! Perhaps we should rename their song "I bet you look good on a panel". But the Artic Monkeys as we know used a cocktail of free online distribution of their music, some radio play and a hectic touring schedule all of which put them in a position where they were able to turn down "Top of the Pops" before they even had a recording contract! Band power of this kind is incredibly exciting and copyright underpins it.

So it is not a blunt instrument - it's not a sharp instrument either - its more of a "bendy" thing - or a Swiss Army knife - and that's the beauty of it.

So returning quickly to the practical issues which I think that this review could very usefully address, for me there are 3:

1. Is the law still in line with how consumers access and enjoy music?

Short answer is no. But the next question is - well has the law ever been in line with what consumers actually do with their music? Answer again is No.

Yes, it's ridiculous that it's technically illegal to copy CDs onto an iPod - but the same was the case when people wanted to copy their LPs on to a blank tape to listen to in the car. And in the name of neatness and tidiness, there is the same temptation now, as there was then, to address this howling discrepancy between law and practice, possibly by introducing some kind of private copying exception - coupled with a levy - similar to the schemes that exist in almost all other European countries, as well as in Canada and to a limited degree in the US.

There is this temptation but I think that we need to be aware of the difficulties of levy systems too - they are an unsophisticated tool in that they are applied to hardware, devices and blank media regardless of whether the purchaser actually intends to use those things to copy copyright material. They're not too popular in Europe at the moment.

So before we go down that route we need to take a really good look at just how far reaching the changes in consumer behaviour are and on the basis of that we should change the law - or more likely, our business models to respond. What we would love is a crystal ball of consumer behaviour. If only we could identify a small demographic of people who we think represent "the future" and commission someone to interview them in order to get a snap shot into how they get their music, what they do with next and what they do if they find a copy control mechanism blocking their way. Then we would be able to see how fundamentally consumer behaviour is changing and take decisions on the copyright structure and our future business models accordingly.

But today we don't have that crystal ball. And we have to ask ourselves whether changing the law is the answer anyway. It seems that the main issue that upsets consumers is not that it's illegal to copy CDs onto iPods - hell they're doing it anyway in their droves and article 2.3 (i)(xyz) of the CDPA is not stopping them. Copy control is what is stopping them - although in very limited cases I might add. So this is not a legislative issue - it's a technological one. What people can do with music is in fact being set by technology - not the law. And this is born out by the fact that exactly the same furore over copy control is playing out in countries where fair use exceptions have been in place for years.

So if the problem is actually the sometimes heavy handed use of copy control, then perhaps some voluntary code of practice for the use of copy control is what we need. A code of practice could stipulate for example, that all copy protected products should be clear labelled to explain what usage it blocks and what usage it permits and also what kind of software would be installed on their computer in order to read the copy control to enable the permitted uses.

Consumers can then vote with their feet. If they don't like the restrictions there are plenty of other places they can go and get the same music. So I don't agree with Jill's picture of vulnerable and disadvantaged consumers - they are actually in the driving seat.

2. Rebranding DRM

The second area where I think the Gowers Review can contribute helpfully to the copyright debate is by "rebranding" and clarifying what DRM is all about.

DRM has unfortunately become synonymous with copy control when it is about so much more than that. In fact, most DRMs do not contain copy control at all!

DRM is principally about making digital services operate - there's a DRM in the cashpoint machine that reads your card and gives you money.

DRM is also about tracking music usage so that songwriters, artists and labels are paid the correct royalties.

It would be really helpful if we could clarify this and move the DRM debate on so that due importance could be attached to the role of DRM as a device enabler and a method of tracking usage and paying royalties.

We could then separate the copy control controversy out from this and promote a frank and open discussion around consumers' very legitimate concerns about copy control.

3. Copyright Education and Awareness

Finally and perhaps most importantly of all, I think that this review should give enormous support and impetus to the growing body of work within government and by industry on copyright and intellectual property education and awareness. There has been cross-departmental government support for IP education for some time. The IP Forum group that Anthony chaired produced the "Create" principles which set down the top line rules of engagement on IP policy and the successor to that group is now in contact with the CBI about promoting those principles to the business community.

James Purnell and Andrew Adonis are busy organising a seminar to look at copyright and intellectual property within the school curriculum to build on the work of the Patent Office's Think Kit.

And BMR continues to distribute the copyright lesson plans to music teachers to enable them to teach copyright as part of music education. We feel very strongly that copyright is a core business skill in the knowledge economy.

The next Arctic Monkeys need to know that they should register their works with collection societies so that the minute Radio Sheffield starts to play their music, having picked it up from an online sharing site, that band can start to receive royalty income. They need to know that music publishers offer development deals which can support their living costs while they develop their craft before they approach a record company for a recording deal.

The business community needs to understand that designs, artwork, music, film clips, all need to be licensed. It was alarming to hear that a survey carried out by the IP advisory service, Own It, which is part of creative London, conducted a survey which found that 80% of small businesses knowingly use other people's intellectual property without permission because they don't understand how the system works and where they need to go to get licences.

The financial and banking community will increasingly need to get closer to understanding intangible assets of companies that they can lend money against, and perhaps most importantly of all we need the new technology companies such as ISPs, search engines, Google and so on to appreciate why copyright is important to the creative community whose work they distribute or signpost. The Times ran a piece recently that said - if Google can deal with Chinese censorship it ought to be able to get its head around copyright - couldn't agree more!

Better understanding of copyright is absolutely crucial to developing the kind of partnership approach between different sectors - creative individuals, creative industries, digital networks and search engines - that we need if we are going to grow the knowledge economy.