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Living in the Age of Edited Realities
Emerging technologies have been gradually reshaping our perception of reality. This may have begun with electronic games (or perhaps early Reality TV), multiplayer online role playing games (MORPG), then came social media, fake news, and various Extended Reality (XR) technologies, including the Metaverse. The addition of AI generated deep fakes and now multi-modal Generative AI has dramatically raised the stakes and begs the question, are we now living in an age of edited realities?
Read more…Are NFTs the future of digital IP and the creative world, or just a remix of DRM and all its woes? (Part 3)
This is third in a series of posts to share some observations, opinions and conclusions from playing with this intriguing technology that sits squarely at the intersection of digital technology, creative content and intellectual property. The topic is broken down into the following parts:
- What are NFTs (and the non-fungibility superpower)?
- What has this got to do with Intellectual Property (and content protection)?
- Does it mean that NFTs are like DRM remixed?
- How does it affect the creative industry today and in the future?
- Summary observations and conclusions.
Are NFTs the future of digital IP and the creative world, or just a remix of DRM and all its woes? (Part 2)
This is second in a series of posts I drafted to share some observations, opinions and conclusions from playing with this intriguing technology that sits squarely at the intersection of: creative content, digital tech and intellectual property. The topic is broken down into the following parts:
- What are NFTs (and the non-fungibility superpower)?
- What has this got to do with Intellectual Property (and content protection)?
- Does it mean that NFTs are like DRM remixed?
- How does it affect the creative industry today and in the future?
- Summary observations and conclusions.
Olympic Rights and the IP Roller Coaster – Bolt in Focus
Last year, I wrote a post on the above topic discussing, among other things, the approach proposed by Games organisers to tackle such sharp practices as “ambush marketing” and “unfair association with the Games”. They even produced a list of restricted words and phrases (including: Olympic, Paralympic, London Games, 2012 etc) to protect brand exclusivity and sponsorship preorgatives. However, as the saying goes, a picture is worth a thousand words, and when the world’s fastest 100M athlete cheekily commandeered a photographer’s camera to take pictures of the photographers, spectators and fellow athletes, a rather interesting debate was ignited in a popular photography magazine forum, mainly about copyright and ownership rights of those pictures, which were subsequently published by the photographer in his own newspaper.
Images of & from Usain Bolt, the photographer (*see below for image sources)
The forum discussion can be found here, and it includes the following key questions:
- Who owns the rights to the pictures taken; Is it Usain Bolt, or the Photographer (i.e. owner of the camera and memory card)?
- Does the fact that the camera and memory card (including photographic data) remain property of the photographer have any bearing on rights ownership to Bolt’s pictures?
- Should Bolt have any right to the art (or computerised data) that he created on equipment he does not own? (this one prompted comparisons with a Banksy grafitti art on someone’s wall)
- Does the photographer’s publication of the picture (presumably without permission) violate Bolt’s rights as ‘artiste’, or arguably as copyright owner?
- What about the venue / organisers rules and conditions regarding accredited photographers and their works?
All very good questions, and no doubt something a good IP lawyers can argue for and / or against, depending on who is paying the fees, but suffice it to say that the best comment, in my opinion, came from a forum member who reminded others that “copyright subsists upon the creation of the art…” and that it rightfully belongs to the individual creating the art, i.e. Usain Bolt, in this instance. Furthermore, I would add that the author of an original work, even if not the copyright owner, also has the moral right to seek redress against any objectionable use of the work.
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*Images sourced, from left to right:
- http://www.telegraph.co.uk/sport/olympics/athletics/9465959/Usain-Bolt-takes-his-own-Olympic-photographs.html
- http://www.petapixel.com/2012/08/09/usain-bolt-nabs-photographers-dslr-snaps-awesome-pov-shots/ (camera owner in red circle)
- http://www.dailymail.co.uk/sport/olympics/article-2186349/London-2012-Olympics-Usain-Bolts-photos-200m-victory-revealed.html
An IP System Fit for the 21st Century
Last week, I attended a breakfast meeting at the House of Commons to discuss and reflect on practical issues around implementing recommendations of the Hargreaves Report, as well as ways in which the IP system can be evolved to better enable the benefits from 21st Century business and technology opportunities.
UK House of Parliament
This event, organised by the Industry and Parliament Trust, featured brief talks by Professor Ian Hargreaves (author of the IP Review report & recommendations – download it here), Ben White (Head of IP at the British Library), and Nico Perez (co-founder of startup, MixCloud), plus Q&A style discussions with the attending group of politicians and business people from relevant industries. Some key observations and comments are:
- London has the largest cluster of IP related start-ups, as well as the biggest hub for VCs, in Europe
- There has been a lot of international interest in the Hargreaves report and recommendations (the good professor regularly gets calls from interested observers across the globe). Also, the review findings and recommendations had good traction with the UK government.
- Digital economy versus creative economy; are they one and the same (i.e. is there and/or should there really be a difference)?
- The larger creative industry players (e.g. publishers), and their lobbyists, are not in full agreement with the review findings and / or recommendations, and remain firmly resistant to change
- According to one attendee, the interests of creative stakeholder (e.g. content creators) were not well represented or served by the review findings and recommendations
- Collecting societies act like de facto monopolies, which can make life difficult for some more innovative start-ups
- Broadcast TV players are trying to innovate and catch up with what consumers are already doing in their homes, but the current IP system is not sufficiently geared towards enabling such initiatives.
Note: Further information, comments and observations can be found in the IPT blog post about this event.
The upshot of the above points, in my opinion, is that a new / evolved IP system must really be geared towards dual targets, i.e. to help simplify and facilitate the use and reuse of IP works, especially in the digital realm. Such a focus would undoubtedly go a long way towards addressing the legion of non-technological challenges faced by most innovators, entrepreneurs and investors in the creative digital industries. For example, according to an article (see: The Library of Utopia), published by MIT technology review, “the major problem with constructing a universal library nowadays has little to do with technology. It’s the thorny tangle of legal, commercial, and political issues that surrounds the publishing business.”
These are pretty much the same issues to be found in similar ventures within publishing and other major creative industries, e.g.: Music (think cross border licensing for the much vaunted Celestial Jukebox), or a global film and image library (e.g. a mash-up of Hulu, Netflix, Corbis and Getty Images). In all cases, technology is not the stumbling block, because the bigger challenges lie with any combination of: business strategy, commercial models, legal / political / cultural mindsets, encountered along the way.
Having said that, it can be argued that such hurdles are not sustainable, for various reasons, not least of which is that individuals (or customers, casual pirates, consumers, freetards etc. – take your pick) are already way ahead of the curve in terms of digital content / technology, and will often use it exactly as they see fit.
This means that established incumbent players in the creative industries are forever playing a reactive / catch-up game, instead of pursuing or encouraging discovery of the next big thing. As a result, most disruptive propositions will invariably have a high impact on established business models, especially if and when they harness the natural instincts of individual users. An interesting example could be the recently launched Google Drive, complete with built-in OCR capability (which will enable users to digitize and search scanned content). Could this ultimately lead to a user generated version of Google Books?
To conclude, an IP system worthy of the 21st century is an urgent necessity, but there is also pressing need to keep in mind the big picture, which is that the Internet is a global enabler / platform, therefore any new IP system must likewise be global in scope. The UK, with its wealth of creative talent, plus such efforts as the IP review and recommendations, may be in a unique position to provide some leadership on the best way forward for IP in this 21st century.
The ISP Dilemma Continues
Some time ago I wrote a post about the challenges facing Internet Service Providers (ISPs) over whether they can afford to be the police of the Internet, with respect to helping find and stop persistent abuse of content, and other illegal online activities by their users. This is still a serious issue today, particularly in light of the cloud, hence the urge to revisit that post here.
The biggest challenge then was around the growing perception of ISPs as de-facto gatekeepers of the Internet, which effectively added another layer of complexity to their traditional / core business. As a result, not only do ISPs have to deal with existing and non-trivial issues (e.g. declining markets, convergent evolution via multi-play business models, and issues around increasing broadband / bandwidth consumption), they also have to contend with the fact that:
- Content owners still want ISPs to play a more central role in preventing, detecting, monitoring and punishing illegal file sharing (e.g. via schemes like the infamous three strikes proposal).
- Various initiatives by governments around the world, such as the UK’s Digital Economy Act, are put in place to help provide much needed governance and teeth to the need for ways to monitor and combat illegal activities including copyright infringement.
- There still are also signs of lack of trust by ISP customers over service quality / charges, and potential invasion of privacy
These all add up to a severe headache for ISPs, and may be made even worse when you throw cloud services into the mix. Some of the options, or combinations thereof, that ISPs have used or considered using to deal with these key challenges include:
- Targeted advertising schemes – preferably via opt-in models as a way to help subsidise the cost of service. In some cases even extending to much cheaper or even “free” access, for your usage information, of course.
- Industry self regulation – Still not easy to do, but one that would benefit the entire industry, and help address the pressures from content owners
- Network Controls – Invest in better ways to track, monitor and control or “shape” network traffic, in order to deliver better quality of service, promote fair use, and support law enforcement
- Partner with content owners – To explore new and more flexible content business models. E.g. a survery found that music fans might actually prefer ISPs as their music supplier. However the advent since of cloud based music and streaming services may have changed that landscape somewhat.
In any case, it is still advisable for ISPs to bear in mind the following three points in trying to deal with this dilemma:
- Do not alienate or irritate the customer – protecting the customer relationship and keeping their trust is still key to future success
- Resist excessive external pressures – Content owners need ISPs as much as ISPs need them, and perhaps even more so
- Take the initiative – ISPs should be more proactive in creating customer-pleasing, regulator-friendly propositions and business models (perhaps by working closely with consumers and content owners)
Overall, there is no easy way to slow down the natural evolution of the Internet, and cloud services, therefore ISPs need to do more to understand, evolve and embrace what is really a critical niche in the digital content ecosystem. The cloud is here for all, and it is here to stay.
Note: This post is brought to you in partnership with Intel(R) as part of the “Technology in tomorrow’s cloud & virtual desktop” series. For more information please click – HERE
Citius, Altius, Fortius and the Intellectual Property Roller-coaster
Next year’s Olympic Games mean that both the City of London and global coverage of the events will be awash with logos, slogans, brands and other sponsorship paraphernalia come summer 2012. As the competing athletes get busy completing their training, so too have a particular group of learned athletes, otherwise known as IP lawyers, kept busy by flexing their legal muscles in preparation for an epic battle. Whoever wins in the end must indeed go faster, higher and stronger in that blood sport known as IP litigation.
I was kindly invited to a seminar on brands and Intellectual Property (IP) at Wedlake Bell, a London Law firm, which helped to bring into sharp focus the current state of the IP landscape, (i.e.: Copyright, Trademark, Designs and Patents), and their legislation or regulation in the UK and Europe. The half day seminar touched on several interesting and notable IP related developments, regulation or litigation outcomes including:
- The Cookie regulation – Or The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 which requires websites that use cookies to have clear, detailed information about its use, storage, access etc., as well as opt-in consent from the end-user.
- London 2012 Olympics – Covered the looming London2012 games and all it entails, e.g. the need to defend against such tactics as Ambush Marketing, as well as the introduction of a specific right to prevent unfair association with the games called the London Olympic Association Right .
- Freedom of Expression vs. Privacy – Discussed the tension between these two strange bedfellows, as well as highlighting the bright line boundary of commercial or state secret infringement versus the blurred line of private information made public (i.e. intrusion of privacy). Not quite the same thing it seems!
- Copyright Issues – Looked at the challenges facing copyright law and its modern use and interpretation such as the vexed question of just what constitutes a “substantial part” in copyright infringement. Oh, and by the way, newspaper headlines may be copyright too!
- Social Media and the Law – this final session showed how, despite evidently wide-held belief to the contrary, the law can, and does, apply to social media users. Seven types of social media usage, and some resulting litigation, were used to illustrate how the law can impact unwary users of social media, e.g.: insults, uploading, marketing, employees, litigating, gossip and jokes. Also the memorable analogy of just how social media users are very like London cyclists, (i.e. an explosion in great numbers of modish, largely anonymous individuals who may assume the law does not apply to them), helped to bring the point home.
In conclusion, this seminar provided an excellent update on the state of play with IP and brands; litigation and legislation; as well as historical challenges and emerging trends and usage scenarios. It is the sort of useful event, and time well spent, which I would recommend to any person or organization with even the least exposure to IP, digital social media and the laws and regulations that govern their use. With that in mind, perhaps the toughest contests of the London2012 games may well be fought in courtrooms across the land. IP athletes to your starting positions.
Publishing, Intellectual Property and Private Equity: A Tale of Three Events
It’s not often one gets an opportunity to attend three compelling events in one evening, but as luck would have it, the stars were aligned and I managed to do just that in a mad scramble from one venue to the next. Such are the benefits of living and working in a great city like London, but less so were the thorny issues under debate at each of the three events.
It took a minute to digest and process various messages from these events, but as promised / tweeted, below are three key points, take-away or opinions:
1. Publishers must embrace multi-platform models as business-as-usual (Publishing Expo 2011)
It was standing room only at the Multi-Publishing & Digital Strategies Theatre in a packed final session on “the future of multi-platform publishing”. According to one of the speakers, “the bleeding edge of multi-publishing model is one third print, one third digital, and one third live events.”
Publishing Expo 2011: Future of Multi-Publishing
My Comment – Never mind multi-platform, it sounds more like a multi-model approach will be necessary for the entire creative industry, in my opinion.
2. But how do you value Intellectual Property? (IP For Innovation And Growth)
This has to be one of the thorniest questions for IP, because consistent and intelligent valuation of IP is at best confusing, or non-existent. IP is really just an economic mechanism, so a fundamental attribute should be the ability to establish an agreed value for the property in question, but this presents a severe problem because current valuation are highly subjective and always dependent on the buyer or seller’s points-of-view. Throw in the ability to effortlessly copy and distribute works via digital technology, and you’ll get the somewhat muddy picture.
The RSA: IP For Innovation and Growth
My Comment – There is a clear opportunity here to create a dynamic and transparent IP valuation model or approach, which can produce the right valuation for IP, based on the buyer / seller relationship and context
3. And does a cash economy make IP any less relevant? (Private Equity Africa)
Apparently, it’s all about cash in Africa which leads me to wonder if and how global IP will work in a cash economy. This event does not immediately appear to have much in common with the others on IP or the creative industry, and even one of the speakers afterwards, said he considered Intellectual Property in Africa to be, and I quote, “nothing more than intellectual masturbation”. However, when you think of the thriving industry and market for music and filmed entertainment (e.g. Nigeria’s Nollywood), it is easy to see how IP can provide an important boost to developing economies. Therefore, even if there is little point in enforcing IP Rights locally, all developing economies must be interested and involved in any discussion relating to global IP rights and digital distribution / piracy.
Private Equity Africa
My Comment – when it comes to content and IP, it is a level playing field as all jurisdictions and stakeholders struggle with the impact of digital technology
Overall, one clear trend I can see emerging from the above is that such tough questions / issues will need even tougher answers and resolutions to overcome. For example, they may well be pointing to the same underlying problem – i.e. a flawed and inflexible concept of economic value – but perhaps that is rightly the subject of another blog and blogger.
Creative Commons: Addressing the perils of re-using digital content.
Do you still dream of owning an iPad? If so, you are one of millions of people salivating at the thought of using such a sexy device to create and consume all manner of digital content e.g. books, pictures, music and video. Indeed such devices promise exciting times for all digital content creators; and even entire industries, (e.g. news and magazine publishers), can hardly contain their excitement at the prospect of a device that just might single-handedly revive their ailing fortunes. But this is not another gushing product review, instead it is meant to highlight the challenges that this, and other such devices, will surely pose to the already embattled system of Intellectual Property or Copyright. Namely, how can you be sure that the content you create, re-use and consume on your device does not infringe another party’s copyright?
This is a burning question in the minds of many professional and non-professional creators and re-users of digital content, (e.g.: authors, bloggers, photographers, film-makers, illustrators, web-designers, as well as teachers and students); especially in light of new governmental instruments like the Digital Economy Act1. The right answer must provide, at the very least, a clear and simple method by which anyone can legally create, distribute, use and remix digital content without fear of inadvertent copyright infringement. This article examines one such method, which is increasingly being used by many creative people to get around this difficult issue, and it’s called the Creative Commons.
What Is The Creative Commons?
According to their website2, the Creative Commons (or CC) is a non-profit organisation devoted to increasing the amount of creative works that are free and legal to: share, use, re-purpose and remix by the general public (aka “The Commons”). The CC was established in 2001 by an eight strong group of experts in such relevant fields as cyber law, Intellectual Property (IP), computing and education. The first version of CC Licences were released in 2002, and since then over 130 million works have been licensed under this, and subsequent versions (it’s currently at version 3.0). Furthermore, CC licenses have now been ported to over 50 countries or jurisdictions internationally, with more coming onboard every year.
How Do CC Licenses Work?
The Creative Commons provides free, legal tools that enable content creators to grant: clear, simple and more liberal copyright-based permissions for the use of their works. It operates alongside existing copyright laws, but instead of the default copyright position of “all rights reserved”, CC allows content creators to specify a more flexible proposition with only “some rights reserved”. This is achieved via a multi-step gradient of pre-bundled permissions which bridge the gap between binary positions of copyright (i.e. all rights reserved) and the public domain (i.e. no rights reserved).
There are six commonly used types of CC licenses, which are shown, in order of increasing restrictiveness, as follows:
Creative Commons Licenses
Figure 1: Creative Commons. Source of CC License Symbol / Images3: http://creativecommons.org/about/licenses/
All CC licenses are represented in three levels, which are easily accessible for: computers (i.e. Machine-readable digital code, or metadata); lawyers (i.e. the “Legal Code”); and ordinary people (i.e. the Commons Deed).
What are the Limitations and Pitfalls of Using CC Licenses?
CC is by no means perfect for every situation, especially since it doesn’t cover every single type of rights and privileges related to content. For example, CC licenses do not affect the rights of content creators or consumers in areas like: Fair Use or Fair Dealing, Moral Rights and / or Privacy. The latter aspect of Privacy has been in the spotlight on a few occasions, most memorable of which involved a minor whose image was used in an advertising campaign without her knowledge or permission4, and which ultimately led to charges of violation of her privacy, (notwithstanding the fact that the photograph in question had been posted on Flickr.com under a CC-By-Attribution license!)
Furthermore, the global scope of CC and the Internet only adds to the complexity and geo-political implications of such allegations. For example, the minor and photographer in the above case were both based in the USA, but the ad campaign took place in far away Australia. In light of this and other similar cases, Maria Kessler5, President of the Picture Archive Council of America, advises caution in all uses of digital images, even those under CC license, due to the many subtleties / unintended consequences of digital image rights and their usage.
In Conclusion
The rise in digital content, fuelled by ubiquity and relative ease of digital content creation, remix and distribution emphasises the urgent need for a more flexible approach to usage rights and permissions under copyright. This need is fulfilled to a large degree by the Creative Commons system described above, in spite of the mind-numbing complexity and subtlety of copyright (i.e. the various rights / privileges / restrictions that are attributable to content and their authors). In summary, the key messages to take away include:
- CC is probably the best thing we currently have to enable the legal use / reuse of digital content that would otherwise be legally inaccessible to users under full copyright. This is because CC simplifies and facilitates content use / reuse / sharing for the benefit of all (and not just for commercial stakeholders or content rights owners)
- The widespread popularity and adoption of CC clearly points the way to how we might evolve, or remix, the global copyright system into something that can better cope with the relentless relentless pace of change driving the digital economy during this crucial transition period in human cultural evolution
- Finally, as with most other things, CC is not a silver bullet. The subtleties of copyright versus individual rights are a minefield, even for the best of legal experts; therefore extreme caution is highly recommended when considering the use of CC licensed works in a commercial way.
Please Note: This article has been submitted and accepted for publication in a forthcoming edition of ITNow Magazine
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References:
- The Creative Commons website can be found at http://www.creativecommons.org and the UK version is at: http://www.creativecommons.org.uk. More information on other jurisdictions can be found at: http://creativecommons.org/international
- Digital Economy Act – More on the debate over this bill can be found on the BCS DRM blog, including comments, at: http://www.bcs.org/server.php?show=conBlogPost.1606
- Creative Commons Images: The CC license buttons and graphics remain the property and trademark of the Creative Commons. More information on their use and reuse can be found at: http://creativecommons.org/policies
- More information on this lawsuit against Virgin Mobile and the Creative Commons can be found at: http://creativecommons.org/weblog/entry/7680
- Conversation with Maria Kessler who is also Senior Vice President of Image Rights (http://www.imagerights.com), an Image monitoring services company.
Augmented Reality: You Must Be Seeing Things!
Augmented Reality (aka AR), looks increasingly set to play a major role in shaping the future of mobile computing, commerce, education and advertising. It isn’t far wrong to think of this as “electronic data mist” laid over mundane physical reality, but my main concern, as ever, is what happens when Intellectual Property Rights get thrown into the mix?
Specifically, who has the right to display what content over which physical area? Will it get to a point of digital saturation, i.e. the prospect of infinite virtual content over finite physical space? Also, how do you filter out the digital noise? I’m sure each of these questions presents immense opportunities for some digital entrepreneurs to make a killing over the next few years, i.e. if they’re not already doing so.
More to the point, I saw some fledgling offerings, precursors to a future AR industry that promises a wealth of content and applications, at last month’s BCS event on AR which featured two excellent speakers (a UCL professor, and the prominent blogger/founder of augmentedplanet.com) on the topic. Suffice it to say that they presented a feast of possibilities and opportunities for any far-sighted entrepreneur or venture capitalist to grab a stake in this potentially explosive space.
However, as with most things concerned with digital content versus physical reality, there is still a lack of clarity on governance, or rules-of-engagement, for when “digital meets physical” (sic). In light of the numerous battles fought by the music, film and publishing industries over digital content misuse or piracy, it is clear that the opportunities presented by emergent capabilities like AR will also bring its own unique challenges e.g.: privacy, limitations-in-technology, and the prospect of falling down an open manhole, or bumping into a lamp-post as your reality becomes increasingly over-augmented (for more info, you can read this excellent post about “the case against Augmented Reality”)
In spite of the above, the prospect of augmented reality applications becoming more common-place and making a real impact in the fields of medicine, education and commerce is indeed very exciting. I sincerely hope that AR will grow and flourish, overcoming the challenges that face it, in order to become an indispensible tool for this and future generations.
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