Saturday 10 December 2016

Instead of locking kids up for piracy, give them more Spotify and Netflix

The head of the World Intellectual Property Organisation, who wears his Irish heritage with pride, has firm views on what music and movie companies need to do to fight piracy. Francis Gurry tells Adrian Weckler that content companies are better off creating affordable, accessible online services than locking teenagers in jail

Published 21/05/2015 | 02:30

Francis Gurry, pictured outside Dublin’s Shelbourne Hotel, gives his views on the future of music sharing and the power wielded by the likes of hit musician Taylor Swift,
Francis Gurry, pictured outside Dublin’s Shelbourne Hotel, gives his views on the future of music sharing and the power wielded by the likes of hit musician Taylor Swift,
Taylor Swift. Photo: Getty Images

On the office wall of the World Intellectual Property Organisation's director general hangs a framed plaque of an early Irish tract. "To every cow its calf and to every book its copy," reads the plaque. Attributed to the trial of 6th century Irish monk St Colmcille, the quotation is often cited as one of the earliest examples of copyright law.

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The owner of the office is an Irish-Australian who wears his ancestry prominently. Francis Gurry, former Melbourne lawyer and Oxford author, has been at the top of the world's pre-eminent body on deciding intellectual property disputes for seven years.

In that time, he has been involved in global negotiations on how to deal with mass-piracy of music, film and other intellectual property.

But big challenges remain for so-called 'content creators' in the realm of copyright and intellectual property law, particularly with new EU plans to create a single digital market.

Will such developments hurt musicians and film-makers more? Hopefully not, Gurry says: the future is brighter than many of us think.

Adrian Weckler (AW): Here in Europe, the European Commission says it wants to dismantle territorial geo-blocking for things like movies and music because it's against the spirit of a single digital market. What do you think about that?

Francis Gurry (FG): One of the difficulties I would have with the EU's proposed single digital market that is that while I understand a single physical market for goods, on the internet there are no borders. And sooner or later that single European digital marketplace has to become a global one. So I think we need to get some multilateral engagement on this issue.

On the other hand, I think most people can see that a gradual single market is where we have to go. The technology is dictating that so, in the long term, there's no choice. But creative industries may need a bit of time for that.

For example, some of the audio visual industries say that windowing or geo-zoning does have legitimacy because often it's the only way for them to recuperate their costs. But, by and large, I think we're on the way to a global single digital marketplace and we have to facilitate that.

In any case, this is something that has to be done by the private sector. It's not something that can be decreed. It's not really a legislative issue either. It's more an issue about data.

Because the marketplace is one of data. You're either buying or selling data which is music or films or literature. And the way you buy that data is through metadata or data about data. And there are legal questions such as licensing models to help it along.

AW: Patent and copyright reform have seen heated rows develop. Is 70 years too long for a creative work to be copyrighted?

FG: Well this is a hot issue. There isn't a consistent policy among the [WIPO] member states. But what I think we'll see in the future is that, in the whole intellectual property system, there'll be much more differentiation. At the moment we have a system that is essentially similar for all forms of creative works, just as it's essentially similar in the patent system for everything from agricultural machinery to molecular biology.

And there, for example, in the patent reform debates in the US, you have the IT community saying that you shouldn't be able to get an injunction enforcing a patent, because your smartphone might have 5000 patents and if you get one it would block the whole thing.

But the pharmaceutical industry says that this is essential to their whole business model and they have to be able to stop people reproducing their patented inventions.

And the answer is that they're both right. But the system at the moment doesn't accommodate that differentiation. So in a knowledge economy you might expect that knowledge rights become more sophisticated. And I think we're going to see that in future.

AW: Where is the world now in fighting online piracy? Are you optimistic or worried?

FG: I'm definitely optimistic. Five years ago, I would have given you a different answer. I was pessimistic then. But now there are signs of a rise in sales. They may not be totally compensating for the loss of previous physical sales, but there isn't as much of a fall in value any more.

Why? Because there's much greater ease of access now to simple legal models and easy accessibility encourages compliance and discourages piracy. Also, the whole regulatory approach to piracy has become more sophisticated with, for example, more use of processes such as offshore injunctions.

AW: Some very rich bands say that if they can't maximise money collection form their music then music creation will stop in future. Isn't that over-egging that argument a little?

FG: I agree that there will always be music creation and that it's not going to stop. One of the inspirations for creation, in music or otherwise, is the act of creation and the beauty of it as opposed to the financial remuneration. But I don't think that's a sufficient argument to say musicians shouldn't be paid. So even though I think there will always be music, there will be more music and more opportunities for people to create and perform music if you ensure a viable economic existence for the creators and the performers. On an anecdotal level, you have someone like Taylor Swift withdrawing from Spotify on the basis that the creators are not getting enough.

AW: What did you think of the recent Tidal launch and its backlash?

FG: I wouldn't want to comment on the specific service itself but I would say that where there is criticism of such elitism, it's probably part of a wider phenomenon. The world is now seeing a concentration of value or wealth in a small segment of the population.

You see it in the entertainment stars, the sporting stars. It applies across lots of models. But systemically, you can ask the question of who's really making the money from digital migration.

There's a fair argument to suggest that it's the distributors who are the ones really making money out of this, the Googles, the Amazons and the Spotifys. And one of the characteristics of those distributors up to now has been that they don't really invest in content creation.

In the analogue world, you did have recording companies who invested in artists. You could criticise how they did it, but basically they brought the musicians into the market and set them up. Similarly, the film companies invested in production to make movies.

Now in this transformation, we see a lot of value being concentrated in the distribution function, the new distributors, the Googles Amazons and Spotifys.

And up into now they have not been investing in content creation. So what does this do to our culture and that whole process of investment and production in creative content and curation?

AW: But Netflix makes its own TV shows and documentaries now...

FG: Yes, and you could also say that Amazon is providing a platform for authors to publish or YouTube for video-makers. It's not that they're absent from the field. But it is a different model from what we saw in the analogue world and I think the question is out there as to who's deriving the real value and are the creators being incentivised.

AW: So what's the answer?

FG: There's a lot of evidence to say that the best way to create respect for copyright is to create easy business models with ease of access.

It's a much better policy than putting teenagers in jail to ensure compliance. Most people are coming to recognise that. While you absolutely have to have enforcement, the real answer is in the marketplace with new business models. And the next stage we have to enter is to recognise that it's a global digital marketplace.

Here, the biggest issue is around technology and territorial systems. How do you create a legal global digital marketplace? How do you make it as easy to get content legally as it is to get illegally? It is very easy to get illegal content anywhere you are in the world, but that's not the case for legal content. There are all sorts of business and legal restrictions that make it much more difficult.

AW: Isn't that what companies like Netflix and Spotify are trying to negotiate?

FG: Yes, exactly. Early on, there was a lot of resistance from the traditional content industries and the music industry was on the front line there. In the second phase, we got Apple with iTunes which forced content online, but it was legal content online. But it was based on an analogy with the analogue world. You bought tracks like you buy individual songs or albums.

The phase we're in now we're sees ownership replaced by access. And I think that we are seeing digital sales rise as a consequence of these models. I don't think the ask from the consumer is an excessive one, either. It costs €30 to got to a football match. But for €5 or €10 per month you get access to the world's music collection. So it's not a big ask, even if there's a cultural change involved.

Five things – Gurry on...

Fighting piracy:

“Creating accessible legal models is better than locking teenagers up”

EU plans to ban geo-blocking:

“Creative industries will need more time to adjust”

The 70-year rule for copyright protection:

“There’ll be more differentiation in the future”

Millionaire bands as artists’ rights advocates in Tidal:

“Elitism is part of a wider phenomenon where wealth is being concentrated, it’s not just in music”

Google and Amazon:

“A lot of evidence that it is these companies who are now making the money from creative works”

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