Reshaping the Law for the Digital Economy – I

Google image, via GoogleLast Friday morning, I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy (Irish Times | SiliconRepublic here and here). It was hosted by Google Ireland and co-sponsored the by Institute for International and European Affairs (IIEA); and the morning was very ably chaired by TJ McIntyre (blog | Chair, Digital Rights Ireland | Consultant, Merrion Legal | UCD). There were five presentations; in this post, I’ll deal with the first two; in the next tomorrow’s post, I’ll deal with the remaining three; and in a third post, I’ll add a few comments of my own on some of the issues raised by the seminar.

First up was Johnny Ryan (IIEA | author A History of the Internet and the Digital Future) speaking on “A hinge in history: the conditions of the digital future and the need of rights reform”, and setting the scene for the debates that would follow. (Update: Johnny comments below that video of his presentation is now available). For him, we live in the age of the perpetual beta. Before Gutenberg‘s printing press, hand-transcribed manuscripts made information fluid. By contrast, after Gutenberg, the printed book fixed information in static form. But now, online, information is very flexible and plastic, again. Consider a wikipedia page: everything is open to challenge and experimentation – and perpetually beta. We are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Because of the internet, we have moved from a read-only (RO) culture to a read-write (RW) culture, a remix culture, where we can all adapt and re-invent, and this participation can be anywhere: anyone can be Andy Warhol, and the internet can be your Factory. This is the hinge in history of his title.

He argued that as we have moved from a RO to a RW culture, so can we move from RO to RW business. In a paper he wrote with Allègre Hadida “One Way to Save the Music Industry” in Bloomberg Businessweek, 29 July 2010, they argued that the music industry may find inspiration in the game industry, where the prevailing Internet-driven trends of online subscription and community participation are reducing piracy and keeping consumers actively engaged; and they argued for a new subscription-creation model by which retail for listening is dead and subscription for co-creation is the future. And in an article in Business and Finance magazine, “The death of the mainstream and the rise of the activist audience”, he argued that these developments are possible and necessary due to the hinge in history represented by the internet. Because of the original idea that the internet should be able to survive a nuclear strike, the move from centralised networks built on poles to a distributed network built on nodes means that the fundamental pattern of the internet relies on the death of the centre. This, in turn, enables individuals to reach to global niche audiences, and creates the potential for total commerce, for a marketplace of ideas, cultures and products so huge that everything can be subject to commodification.

However, he argued that the legal environment is not fit for this purpose. In particular, copyright laws preclude such developments; indeed, even with forthcoming legislative measures, it is insufficient for an era of plastic information. For example, it is very difficult to make the model he and Hadida propose to work within current framework of copyright law. He concluded, therefore, that the only sticking point for total commerce is the law.

Picking up on this concluding point, TJ McIntyre commented that “information is plastic, but laws are granite”. I tweeted this comment, and Andrew Rens immediately tweeted back “law is granite but innovation is water”. I think this very neatly encapsulates Johnny’s point: the reach of the internet is global, and its strength lies in the ease by which one idea (Johnny’s) can be developed (TJ’s comment), communicated (my tweet) and transformed (Andrew’s response).

Next up was Niall O’Riordan (Public Policy and Government Affairs, Google) speaking on “Creativity, Technology and Copyright”, picking up seamlessly from where Johnny left off. His theme was the reform of copyright law to promote digital information. He began with some numbers: 10 years ago, the global internet population was 170m, now it is 1.8b, and the numbers are continuing to grow – for example, mobile internet subscriptions in China are growing at a rate of 940% year on year. He said that Google is committed to protecting copyright, and that creative people need to be paid, and he argued that YouTube creates brand new revenue sources, especially for the music industry – in particular, the YouTube content ID system is a scalable automated service enabling rights holders to make choices about whether and how their content appears on YouTube, notwithstanding the tangled web of rights clearances typically involved. His basic theme therefore was that new technology and digital innovation do not have to be threatening for rights holders.

Then he asked: how can copyright work in the digital era, in Ireland and in Europe? Developing Johnny’s point about the legal limitations upon remix culture, he argued that where the tools of creation are available to everyone, and where user generated content often involves remixing, such creativity runs squarely into copyright problems. On the other hand, he also pointed out that online innovation and creativity depend on copyright protection. There is a tension here that needs resolving, and so copyright reform is necessary to support innovation. However, given the rate of developments in technology, it is neither possible nor desirable to turn to copyright reform at every new development. Instead, we should adopt a broad flexible framework of fair use rather than a list of specific exceptions such as fair dealings. Indeed, he described Fair Use an idea whose time has come. The remainder of the seminar explored the ramifications of this point, and I will return to it in tomorrow’s post.