A few weeks ago I had the opportunity to participate, as chair & speaker, at a BCS Entrepreneurs event discussing the role and value of Intellectual Property for start-ups and entrepreneurs. As you might imagine this was a well attended event with so many different questions foremost on the minds of various attendees.
Given the focus on my favourite topics of IP and entrepreneurship, it didn’t take much persuasion for me to sign-up and chair the event. Furthermore, I was in the company of two legal experts on: EU IP law (Jonathan Exell, from William Powells) and employment law (Bob Fahy, from Veale Wasbrough Vizards) respectively. Also the attendees were certainly not shy to engage and they took some delight in systematically dissecting the trickier aspects of entrepreneurship and the start-up vs. IP challenge in a changing landscape.
As introduction and kickoff, I provided a quick overview of some of those key challenges facing startups with respect to IP. This was mainly based on a previous post and article I’d written and published about this same topic.
The first speaker followed through with a thorough recap of the legal position on IP particularly with regard to the EU and Brexit. Key message: it’ll likely be business as usual for IP in post Brexit UK, at least in the near term. Also, it is highly unlikely that the UK will deviate too radically from the increasingly aligned position on IP which most of the world enjoy today.
The second legal perspective provided some insights on key challenges and opportunities facing anyone trying to manage the IP risks and issues associated with employees, disgruntled or otherwise. Here the lines become somewhat blurred between contract vs. employment vs. IP laws. It was interesting to observe the number of questions relating to how founders should approach the challenge of establishing who has what IP (and / or portions thereof) when their start-up fails, flounders, or even flourishes!
To say this event was informative and enlightening would be an understatement because the second part of the seminar consisted of 1-to-1 mentorship sessions, with experienced BCS mentors exploring attendees individual circumstances in order to provide specific guidance based on the topic at hand. Pure value delivered, if you ask me. As an exercise in giving back, I can think of no better way to spend an evening than by learning, interacting and exploring various start-up IP challenges with enthusiastic entrepreneurs, mentors and experts from within and outside of the BCS.
One thing I love about my work is how it affords me unfettered opportunity to give back, by providing dedicated time (and a measurable objective) to undertake pro bono activities, such as this one, which is aimed at helping others in need of expertise or guidance for projects, worthy causes or personal development. Pure Ohana!
In line with my previous theme of Intellectual Property (IP) and the digital economy, this post looks at a recent Position Statement which I helped to draft for the BCS Chartered Institute for IT.
As you may know, one of the core values or mission of the BCS is to advance the role of IT in bettering society, business, education and the economy, and what better way to do this than by suggesting ways in which IP could work better in the evolving digital economy.
Some key issues highlighted in the position statement include:
- The rapid pace of technology change often leaves behind the Intellectual Property (IP) construct which was created to provide economic benefit for the creators, authors, inventors and owners of related IP
- An enormous amount of money is spent annually on IP related litigation (particularly when IP is viewed and used as a tactical weapon). This could be better spent building the right system in the first place
- According to BCS feedback from the 2013 Parliament and Internet conference, intangible and virtual goods online extend to more than just music, written word or software – I’m thinking about the Internet of Things too
- Also, The EC announced an initiative to define a position on taxation of the digital economy – this gets very interesting when you try taxing something like Bitcoin!
- Creating a feedback mechanism to regulate the impact of IP changes on the digital economy, in a transparent manner.
- Developing fast, automated and dynamic IP mechanisms to cope with blurring boundaries of IP (e.g. for emerging trans-media content), and surge in high-volume / low-value transactions online.
- Keeping everything in context, because society is still at a very early stage in understanding and adapting to changes introduced by digital technology – digital IP is in a period of transition without any appreciable end state to speak of.
2. BCS understands the need to ensure all 5 digital stakeholder groups (i.e. the creator, commercial, consumer, technology and governance stakeholders) are consulted, engaged and involved in the creation of digital IP structures for the future. BCS has representative groups and forums that cover all 5 stakeholder groups of interest.
I came across a blog post about electric automaker Tesla’s recent move to open up its patents by making them free to use by anyone, including competitors. According to founder, Elon Musk, “Technology leadership is not defined by patents, but rather by the ability of a company to attract and motivate the world’s most talented engineers.”
I believe that while this move may have multiple strategic intent, (i.e. Tesla could have other IP cards up their sleeve), it also highlights limitations in the current systems of Intellectual Property, and it’ll require a fundamental shift in philosophy to fully appreciate where such trends could take us.
Obviously, I admire Tesla’s creativity and innovation, not least because their eco-friendly cars do not remind me quite so much of badly constipated turtles, but because their sheer guts and willingness to take risks (aka multiple leaps of faith) puts them ahead of the curve.
If technology leadership is no longer defined by a sizeable IP portfolio, then this presents some very real challenges to various foul strategies and current sharp practices for IP, such as: “weaponised IP”, Patent Trolls, industrial espionage, and so forth. According to author Don Peppers’ blog post on the topic, such “open source” and “free revealing” (aka free sharing) of otherwise competitive IP assets actually drive innovation “while patents, copyrights and other legal mechanisms seem to be holding us back.” He goes on to say: “This is big, everyone. If you don’t know how big this is, you haven’t been paying attention.”
In my opinion, a mindset of “share first then ask questions after” is vastly superior to the usual scarcity based approach to wealth creation, (i.e. “mine, mine, all mine” is not real wealth, just an illusion). True wealth, which is firmly based in abundance, actually favours the sharing mindset by motivating and empowering bright creative people to continue to do and share what they do best. Such a system fosters innovation, and is ultimately self replenishing, because it forces organisations to ensure they maintain the right ingredients to continue being innovative.
In such a world, an organisation may be deemed a failure when it no longer has the ability to innovate, regardless of the size of its bank balance, market capitalisation or IP portfolio. Instead, successful organisations will be ones which can establish and demonstrate a self-perpetuating culture for creativity and innovation. Such bold claims do however raise some serious questions over IP, e.g.:
- Should IP be granted with implicit right for others to use and reuse by default, (along with fair recompense or royalty to the owner)? And if this were feasible, would everyone play by the rules?
- Are we likely to see a situation whereby IP may be rescinded from organisations that do not actively use them to innovate? I can already imagine Patent Trolls, and their IP lawyers, screaming in anguish at the thought.
- If free sharing of IP became common practice, will it ultimately diminish the value of IP, and its raison d’etre, (i.e. a means to provide direct economic reward for creators and owners of IP)? Bear in mind that creators and owners of IP are not always one and the same.
These and other similar questions easily rise to the fore when you extrapolate the developing trend for free IP sharing and their implication for both individuals and organisations. The preceding points / questions are not solely relevant to organisations. Individuals, particularly those in the creative arts (e.g. authors, musicians and other artistes), are also affected especially as they increasingly chose to explore alternative funding models to finance their works.
TV presenter and author, Kate Russell (of BBC Click fame) takes it a step further by advocating the creation of new IP models based on crowd funding in her recent BCS blog post. Her exact words were: “With the online world still in freefall about how to solve digital rights protection and make sure artists get paid fairly for creative works, I genuinely believe that crowd funding could form the groundwork of a new intellectual property model”. In my opinion, this is another example of the shifting mindset that will ultimately bring about the evolution of a more suitable IP system for the digital world of today and tomorrow.
Over the past few months, I had several opportunities to engage in the conversation about the role of Intellectual Property (IP) in the new world of Digital, and in so doing, I’ve managed to tease out certain key questions and concerns surrounding this topic, e.g.: What challenges and opportunities does IP bring to the Digital feast? How does the ‘sharing’ economy affect established notions of IP, and how effective are current efforts to update and harmonise IP in the digital age? The answers are slowly revealing themselves, but the following observation points will hopefully highlight the way.
What is Digital?
The term “Digital” means different things to different people, (including those that consider it an extremely irritating term for something old repackaged as a new ‘buzzword’). In my opinion, the term Digital can be used to describe various new and emerging products / services / processes / user behaviours etc., that are enabled by digital technology. It works equally well in describing innovative, disruptive trends (e.g. big data and predictive analytics) and / or re-imagination of pre-existing technologies (e.g. Cloud).
How does IP figure into it?
Intellectual property is the concept and mechanism through which creators and owners of “works of the mind” may derive economic benefits from their works (e.g.: inventions, designs, works of art, and trademarks). By its very nature, IP is constantly challenged by those self same things for which it was designed – e.g. printing press, audio-visual capture, playback and distribution technologies, and even this new fangled 3D printing. The Digital world merely amplifies an age old problem which reappears with alarming regularity with each new shift or breakthrough in technology. However, this particular incarnation also begs the question of whether the concept of IP is intrinsically flawed in a digital universe
Key Trends in society / technology / business
In any discussion on this topic (i.e. IP and the digital economy), you’ll invariably pick upon certain trends as key catalysts for change, which typically fall into any of following groups: socio-economic trends, technology trends and business trends. If you don’t believe me, then go ahead and give it a try with any of the following trends e.g.: social media, aging population, real-time dynamic pricing, predictive analytics, digital transformation, 3D printing, and even “sharing economy”. Such trends are redefining how we live and do business in a digital world, but are they all merely symptoms of the same phenomenon?
How will law and regulation keep up?
Not very well, I’m afraid. How can we best apply governance to emerging phenomena such as Digital? To say it is very difficult would be an understatement, considering that these changes also affect the law, and law makers, too. This is a perfect example of what city planners and business school professors consider to be a “wicked problem”. Existing rules of society and international law struggle to encompass the global reach and impact of digital technologies whereby information can spread, at the speed of light, to all corners of the world heralding the lofty dawn of unified global thought, sentiment and action, or anarchy. In order to remain relevant and useful, the concept of IP needs a major rethink and rework to align with a dynamic digital landscape. However, this is not the preserve of a few sovereign governments, and more needs to be done (at an international, collaborative level) to even begin nursing any hope of having an impact on Digital and human cultural evolution.
Digital transformation and business model innovation
In my opinion, the future of business lies in the ability to reinvent itself and take best advantage of the constantly emerging game-changing technologies, products, services, and usage paradigms. One such avenue is via business model innovation – a technique that makes use of a simple business model canvas to articulate any business model, in a fast and dynamic way. Technology is no longer a barrier to entry, therefore the true measure of fitness must have to do with a business model’s flexibility and adaptability (for competitive advantage) in the digital universe.
In summary, and regardless of where I’ve held these conversations (e.g. at the Copyright and Technology Conference, or Digital Economy and Law Conference, and even at the BCS, Chartered Institute for IT), these same questions and concerns have become a recurring theme.
Ps. I will look to delve into these topics at my next speaking event, on the 22nd of January 2014, and hope to provide further insight and provocative questions on digital economy and IP. Also, we’ll get to hear a speaker from one of the world’s foremost organisations at the forefront of Digital. Don’t miss it (or at least come by and say hello), if you happen to be in London on that day.
Last month’s conference on copyright and technology provided plenty of food for thought from an array of speakers, organisations, viewpoints and agendas. Topics and discussions ran the gamut of increasingly obvious “business models are more important than technology” to downright bleeding edge “hypersonic activation of devices from outdoor displays “. There was something to take away for everyone involved. Read on for highlights.
The Mega Keynote interview: Mega’s CEO Vikram Kumar, discussed how the new and law-abiding cloud storage service is proving attractive to professionals who want to use and pay for the space, security and privacy that Mega provides. This is a far cry from the notorious MegaUpload, and founder Kim Dotcom’s continuing troubles with charges of copyright infringement, but there are still questions about the nature of the service – e.g. the end-to-end encryption approach which effectively makes it opaque to outside scrutiny. Read more about it here.
Anti-Piracy and the age of big data – Mark Monitor’s Thomas Sehested talked about the rise of data / content monitoring and anti-piracy services in what he describes as the data driven media company. He also discussed the demise of content release windows, and how mass / immediate release of content across multiple channels lowers piracy, but questioned if this is more profitable.
Hadopi and graduated response – Hadopi’s Pauline Blassel gave an honest overview on the impact of Hadopi, including evidence of some reduction in piracy (by factor of 6M-4M) before stabilsation. She also described how this independent public authority delivers graduated response in a variety of ways e.g. from raising awareness to imposing penalties and focusing primarily on what is known as PUR (aka ‘Promotion les Usage Responsible’)
Auto Content Recognition (ACR) and the 2nd Screen – ACR is a core set of tools (including DRM, watermarking and fingerprinting), and the 2nd screen opportunity (at least for broadcasters) is all about keeping TV viewership and relevance in the face of tough competition for people’s time and attention. This panel session discussed monetisation of second screen applications, and the challenges of how TV is regulated, pervasive and country specific. Legal broadcast rights is aimed at protection of broadcast signals, which triggers the 2nd screen application, (e.g. via ambient / STB / EPG based recognition). This begs the question of what regulation should be applied to the 2nd screen, and what rights apply? E.g. Ads on TV can be replaced in the 2 screen, but what are the implications?
Update on the Copyright Hub – The Keynote address by Sir Richard Hooper, chair of the Copyright Hub and co-author of the 2012 report on Copyright Works: Streamlining Copyright Licensing for the Digital Age, was arguably the high point of the event. He made the point that although there are issues with copyright in the digital age, the creative industries need to get off their collective backsides and streamline the licensing process before asking for a change in copyright law. He gave examples of issues with the overly complex educational licensing process and how the analogue processes are inadequate for the digital age (e.g. unique identifiers for copyright works).
The primary focus of the Copyright Hub, according to Sir Richard, is to enable high volume – low value transactions, (e.g. to search, license and use copyright works legally) by individuals and SMEs. The top tier content players already have dedicated resources for such activities hence they’re not a primary target of the Copyright Hub, but they’ll also benefit by removing the need to deal with trivial requests for licensing individual items (e.g. to use popular songs for wedding videos on YouTube).
Next phase work, and other challenges, for the Copyright Hub include: enabling consumer reuse of content, architectures for federated search, machine to machine transactions, orphan works registry & mass digitisation (collective licensing), multi licensing for multimedia content, as well as the need for global licensing. Some key messages and quotes in the ensuing Q&A include:
- “the Internet is inherently borderless and we must think global licensing, but need to walk before we can run”
- “user-centricity is key. People are happy not to infringe if easy / cheap to be legal”
- “data accuracy is vital, so Copyright Hub is looking at efforts from Linked Content Coalition and Global Repertoire Database”
- “Metadata is intrinsic to machine to Machine transactions – do you know it is a crime to strip metadata from content?”
- “Moral rights may add to overall complexity”
As you can probably see from the above, this one day event delivered the goods and valuable insights to the audience, which included people from the creative / content industries, as well as technologists, legal practitioners, academics and government agencies. Kudos to MusicAlly, the event organiser, and to Bill Rosenblatt, (conference chair), for a job well done.
I remember once when the mere mention of DRM stirred up such a frenzied reaction of blood boiling anger, outrage and disgust, from even the meekest of the meek. Thankfully those days are long gone, and DRM has been largely forgotten, or has it?
Sadly no, because DRM recently reared its dramatic head yet again following a decision by the World Wide Web Consortium (W3C) to bring video content protection into scope for discussion in their HTML5 Working Group. So what does this mean? Well, it depends on who you ask of course, because the usual pros vs. cons battle lines, championed by various organisations and pundits, have opened up with distinct perspectives on the matter. The following are summary points, culled from a quick web search on the topic.
Some viewpoints in support of the decision:
- Sir Tim Berners Lee on Encrypted content and the Open Web – reiterated that W3C staff remain passionate about the open Web, and indeed abhor certain forms of content protection and DRM. However, he went on to explain how putting content protection in scope for discussion is the lesser evil, given that exclusion of this topic from the HTML WG discussions will not necessarily exclude it from anyone’s systems.
- W3C Encrypted Media Extensions (EME) Editor’s draft 17th September 2013 – According to the abstract, “the proposal extends HTMLMediaElement providing APIs to control playback of protected content.” Also, the specification does not define any particular content protection or DRM system, but instead it defines a common API that may be used to discover, select and interact with various such mechanisms / DRM solutions.
- ArsTechnica “DRM in HTML5 is a victory for the open Web, not a defeat” – In this post, Peter Bright argues that EME will happen, one way or another, especially given how some important companies (i.e. Microsoft, Google and Netflix) are actively developing the specification. Furthermore, distributors of protected video content already use DRM, albeit outside the Web (e.g. via Microsoft’s Silverlight, Adobe Flash and / or mobile Apps). Finally, he concludes that EME will provide a way to deliver protected content via the Web instead of just using proprietary applications and plug-ins. .
Other viewpoints against the decision:
- The Electronic Frontier Foundation (EFF), “Lowering Your Standards: DRM and the Future of the W3C” – The EFF strongly objects to the inclusion of “playback of protected content” into the scope of HTML Working Group’s new charter, stating that such a move would mean the controversial Encrypted Media Extension could be included in the HTML5.1 standard, which would effectively cede control of browsers to 3rd parties (i.e. content providers). Furthermore, they argue, this could ultimately damage the W3C’s reputation / perception as guardian of the open Web, and that other media formats (e.g. images, fonts and music) may push for equivalent content protection standards, over a rapidly fragmenting Web.
- Boing Boing “W3C’s DRM for HTML5 sets the stage for jailing programmers…” – Cory Doctorow discusses how the decision will open the possibility of punitive fines or imprisonment for programmers who dare to attempt improving web browsers in ways that displease Hollywood.
- DefectiveByDesign “Tell W3C: We don’t want the Hollyweb” – Calls for the W3C to reject the EME proposal, stating that it would damage freedom on the Web and enable unethical, restrictive business models, as well as proliferation of DRM plug-ins needed to play protected media content.
Regardless of which side you take in this debate, it is probably disingenuous to think that DRM ever went away, if anything, it has in fact been thriving in various digital content services and technologies, well outside the limelight and notoriety it had in the past – perhaps until now. One of the key things I learnt during my sojourn into the DRM debate over the last decade, was that most content businesses are ultimately pragmatic in nature, and they now understand that suing customers (or casual pirates depending on viewpoint) can be suicidal, hence the move away from dramatic headlines and into developing services that users actually want to use and pay for. The saying holds true that the only good DRM system is invisible or transparent to the end user or consumer.
It could be argued that this current debate has arisen because the Web is designed, and perceived by many, to be open and universal, but it is this selfsame universality that allows even potentially restrictive models to have a place on the Web. In fighting for its own survival, and by openly considering inclusion of something like content protection, the W3C is actually living up to the open and universal remit of the Web. However, a real danger remains that commercial interests (aka content businesses) will almost certainly seize this opportunity to compete using flawed and restrictive business models, which will only throw DRM in the faces of their users, and possibly restart litigious campaigns against their users, once the latter decide again that unrestricted (and literally free) content is best. Truly, those that don’t learn from past mistakes are only doomed to repeat them.
In conclusion, although this is probably more than a mere storm in the proverbial teacup, the signs portend that this too shall pass into the annals of DRM aftershocks, in the grand scheme of things. I say this with some confidence because whilst the DRM battle rages on, the world of digital content, copyright and the Internet continues to evolve new opportunities and challenges that will reshape the digital landscape. A recent example concerns the IP value of curation, e.g. playlists, as a candidate for copyright (e.g. see Ministry of Sound versus Spotify)
BTW: I will be moderating a panel session, discussing Over the Top (OTT) video content protection, at the Copyright and Technology 2013 London conference, later this week. My panel of experts will most likely have something interesting to say about DRM and the Web. Why not join the debate at the event, if you are in London, otherwise I’ll keep you posted on this blog.