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at the unbelievable way the bill was pushed through parliament as the country went into an election. The final contents of the Bill were not known until hours before the legislation was passed, and the effects of it are beginning to sink in. This is an Act which raises many questions and provides no answers.

I am reminded of the warning that a government official informally gave me that the record companies should be careful what they ask for as they might get it. Alas that seems to be what has happened, and we are beginning to look at the full
impact.

Ofcom now has to develop a code of conduct in weeks to be put to consultation,
government then has to decide on it within months and then submit it to the EU
in September and after getting a clear (!?!?) decision from Europe to then put
it into legislation.

Then we have to measure the benchmark for current p2p infringement so that initial actions can be shown to have had – or not had – any effect on the rate of infringement (initially this will be just through writing letters). All this action and bureaucratic activity has to be paid for, including the first round of actions (letters).

Appeal processes have to be set-up, criteria for measuring activity without infringing privacy or data protection have to be arrived at, all in a climate of intense hostility from consumer organisations and sullen lack of enthusiasm from the ISPs.

By the way, noone knows what to do about encrypted activity, nor what to do about intranet based infringement, nor what to do about lockers, exchange of memory devices, e-mail attachments, bluetooth, or how to deal with all the hotels, restaurants, internet cafes etc. I am not sure whether anyone knows how to differentiate between the exchange of a legal file and an ‘offending file’, nor how to decide who is responsible for its arrival.

Every step of the process will be accompanied by armies of lawyers. The Digital Economy Act is likely to do a lot more for the economy of the legal business than for any section of the digital music economy.

There is  nothing that I can see in the act which will do anything to put money into the pockets of any section of the recorded music business. Recent research even seems to indicate that some of households that are the heaviest users of ‘illegal’ services are also the households that spend the most on recorded music. This will provide the triumph of unintended consequences as the labels set about threatening and offending some of their best customers. That is, of course, if the legislation ever gets beyond vacuous ‘naughty boy’ letters in the long run. The hurdles are immense, the threat of legal challenge enormous, the costs indescribable, the effectiveness at increasing revenue totally speculative, and , finally, the probability of generating further hatred of the recorded music business incredibly high.

Is this a sensible way to treat our present and future customers ?

If only the energy put into lobbying for repressive legislation were put into finding easy ways of licensing music for digital services which delighted the customers and paid all creators properly, as well as the corporations. If only we could start by accepting what the new technology makes easy, and then work out how our customers can use that technology and all the creators hope to get paid.

Then we can work with the ISPs and the music services so that they too can be able to make an honest living with the minimum of aggravation from their recorded music suppliers. In short, how can we build our music business models so that along with the digital technology suppliers, programmers and service providers, we can all use music to build our businesses together?

I can only conclude that there are sections of our industry who have forgotten why they went to war in the first place, but now they are there in the battlefield, and with all the casualties they can’t admit that it is a mistaken and now lost war. All tactics and no strategy make for a disastrous war, the major record companies and their satellites and allies need to remember this, just as our politicians would do well to do the same in Afghanistan.

Two last thoughts:

  1. What happens to copyright when you cannot control the right to copy ?
  2. How does anything in the Digital Economy Act, and ‘Hadopi’ in France, put any
    money into anyone’s pockets ?

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About Author

James Martin

James Martin is Head of Social Media for Midem organisers Reed MIDEM. This includes defining and rolling out Midem's social media strategy, editing midemblog, influencer outreach, developing Midem's fanbase of 75,000+ music professionals and more.

2 Comments

  1. Thanks Mr. Jenner. Always a pleasure to read you. Much as been said but we need to reassess the following…
    Reidenberg and Lex Informatica (1998) – underlining the role of technology and middleware applications to help policymaking in the context of digital environment.
    The importance for copyright collectives to educate rights holders on proper metadata tagging and putting together accurate data exchange process instead of protecting an old economic model based on the make available right.
    The fact that consumers are aware that the infrigment of copyright harms the creators and are only waiting for a viable proposition to be made to them.
    The fact that ISP’s cannot allocate free time to act as policy enforcement agents and should rather participate to measures of compensation based on bandwith consumption.
    The fact that the interest of each segment of the economic chain must be weighted in any decision : creators and rights holders, on-line services, access providers and consumers.
    Best regards, Jean-Robert Bisaillon, Canada

  2. There are other business models for the exchange of intellectual work, other revenue mechanisms that enable a musician’s thousand fans to offer money in exchange for the release of a new music recording, e.g. 1,000x$10=$10,000. Unfortunately, no-one wishes to fund these new mechanisms (such as I’ve been working on, like http://contingencymarket.com ), because too many people still believe there’s life left in the 18th century privilege of copyright (a monopoly in copies granted to the Stationers’ Guild).
    Until people give up the idea they can sell copies that cost nothing to make by prohibiting anyone else from making them, the enforcement legislation as directed by ACTA will get ever more draconian.
    I can tell you how to sell your intellectual work to a large number of people for a lot of money, but I can’t tell you how to sell copies of it, given people can produce copies themselves for nothing (irrespective of any compunction about infringing a copyright holder’s 18th century monopoly).
    The other thing I can’t explain is why lobbying for ever more draconian legislation to prohibit unauthorised copies is so much more attractive to wealthy publishing corporations than investing a fraction of the effort in developing facilities to exchange intellectual work.
    If intellectual work is expensive and valuable, why are so few working on how to sell that, instead of copies of it, that (as we all know) we can make millions of for nothing? It appears that manufacturers of copies only know how to make, distribute, and retail copies. They certainly know how to buy intellectual work, but they haven’t got a clue how to sell it.

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