Copyright enforcement for the digital age q1 2013

Copyright enforcement for the digital age

POLICY RECOMMENDATION

COPYRIGHT ENFORCEMENT PRINCIPLES | Public | © Ericsson AB 2012 | 2012-11-01 | Page 2

Agenda

›APOCALYPTIC TECH ADVANCES

›FACTS AND FACT BASED›WE THINK: GUIDING ENFORCEMENT PRINCIPLES

›CONCLUSIONS


Professional Media Industry- Continued TRANSFORMATION

Content type

Function

Audiovisual

Audio

Photo

Text

Information Education Entertainment

AcademicJournals

Books

NewspaperConsumerMagazines

Radio RecordedMusic

TV Film

Gaming

Source: The Internet and the Mass Media, Kung, Picard, Towse, 2008

• Digitization• Miniaturization• Screens• Storage• Processing• Networks• Broadband access• Business models• Falling transaction costs• Media Convergence• Online behaviors

Expect continued changes in business conditions


MEDIA industry owes its existence to technological advances

Film

MusicRecordingTelephony

Telegraph

Print Media

RadioFM

Radio

TVColor TV

Satellite TV

Text TV

VCR

Digital TV

CDCassette MP3 Streaming Audio

Internet Radio

Digital Radio

Videotext

E-mailFTP

WWWHTTP

P2PBlogXML

DVD

Streaming video Internet TV

MTVIPTV

Source: The Internet and the Mass Media, Kung, Picard, Towse, 2008


There is nothing new under the sun

*

* Music industry refers to Record Music IndustrySource: Lucy Kung, 2010


The apocalyptic advances of technology in creative industry

1906: Advent of the music recording industry threat:

i.e. gramophones (today CD-players and DVD-players), players pianos and talking machines. The technologies threaten to negate the value of sheet music and the future of creativity; Composer John Phillip Sousa to the US Congress: “…these machines are going to ruin the artistic development of music….the vocal chord will be eliminated by process of evolution, as was the tail of a man when be came from the ape”

1920: Advent of the FM radio industry threat:

“recording industry fears the new medium that would provide close substitutes to buying records”.

Source: Arguments before the US Commission on Patents of the S & H.R, Conjointly on the Bills S 6330 and H.R. 19, 853 to Amend and Consolidate the Acts Respecting Copyright 1906.Source: Harvard Business Review File-Sharing and Copyright, Felix Oberholzer-Gee and Koleman Strumpf, May 2009


The apocalyptic advances of technology in creative industry

1960: Advent of the cable-TV industry threat:

Broadcasting industry (terrestrial TV) complained that CATV operators neither need nor deserve a free ride at the expense of copyright owners and the activities of “CATV operators constitute a clear moral wrong”. In 1975, the Film Industry describes cable industry as a “huge parasite that is feeding and fattening itself off local television stations and copyright owners”

1980: Advent of home recording industry– the VCR threat:

Stanley M. Gortikov, president of the Recording Industry Association of America (RIAA), explained in hearings before a House committee on 14 April 1982, “I’m scared, and so is my industry. Changing technology today is threatening to destroy the value of our copyrights and the vitality of the music industry. Our nemesis is home taping.”

Source: Tim Wu “Copyright’s Communication Policy” 1043 Mich. L. Rev.278, 313 (2004)Source: Harvard Business Review File-Sharing and Copyright, Felix Oberholzer- Gee and Koleman Strumpf, May 2009


Monocausal explanations are simply not true …

› The MPAA* has discursively portrayed the digital

transition, in the press and in policy circles, as a zero-sum

situation with only two possible outcomes:

– the elimination of control, through piracy; or

– the perfection of control, and hence the protection of

creativity and property rights

› It is time to demystify the false zero-sum doctrine and put

it to the past.

*Source: (Vaidhyanathan, 2001, 2004) quoted in Currah, Andrew(2007) 'Hollywood, the Internet and the World: A Geography of Disruptive Innovation', Industry & Innovation, 14: 4, 359 — 384


Going digital is not a zero-sum game : Norwegian CASE

› Total annual industry revenues grew from 1.4 BNOK to 1.9 BNOK which is + 36%

› Number of Music artist increased by + 28%

› Per Capita inflation adjusted annual artist income has increased by +66%

Source: The Norwegian Music Industry in Age of Digitalization, Bjerke & Sorbro, BI Norwegian School of Management, Oslo 2010


The Economist reports half year results (2011)

› The Economist Group’s consistent growth has been built on the Group’s long-term investments in both the editorial content and digital distribution.

› This approach reflects the business’s view that new technology such as e-readers and tablets are significantly changing reader behavior

› Economist is discovering great opportunities in digital. For us, as for many publishers, digital is not a zero-sum game.”

Source: The Economist


The Economist group Experience – digitization not a zero-sum game

Source: The Economist


Agenda



›CONCLUSIONS


Fact based approach - Hargreaves report

› No one doubts that a great deal of copyright piracy is taking place, but reliable data about scale and trends is surprisingly scarce.

› A detailed survey of UK and international data finds that very little of it is supported by transparent research criteria.

› Meanwhile sales and profitability levels in most creative business sectors appear to be holding up reasonably well.

› Many creative businesses are experiencing turbulence from digital copyright infringement, but that at the level of the whole economy, measurable impacts are not as stark as is sometimes suggested.

Source: An Independent Report by Professor Ian Hargreaves, page 6 May 2011


Fact based approach - Hargreaves report

› Such research as exists indicates that we should be wary of expecting tougher enforcement alone to solve the problem of copyright infringement.

› Instead, Government should respond in four ways: –by modernizing copyright law; – through education; – through enforcement and –by doing all it can to encourage open and competitive

markets in licensed digital content,

› which will result in more legitimate digital content at prices which appeal to consumers.

Source: An Independent Report by Professor Ian Hargreaves, page 6 May 2011


Displace “free” with lawful digital services !

Base: Spanish on-demand (streaming & downloading content) users (513 users out of 1000)

Base: US on-demand (streaming & downloading content) users (591 users out of 1000)

Spain

US

New & old content Attractive pricing User friendly & simple

BASE: Spain & US [On-demand users that watch streamed or downloaded video content at least several times per month]Source: Ericsson ConsumerLab TV Video Consumer trends 2011 & 2012


displace FREE with LAWFUL Digital Services

Study from Norway (Norwaco/Synnovate Report 2011 for 2010):› The Norwegian Collecting Society NORWACO findings over the last

few years, are quite remarkable. › From 2008 to 2009 the number of illegal copies of music fell

dramatically› In 2008/9, > illegal copies down - 40%› In 2009/10 > illegal copies had gone down even further - 13%› No enforcement measures; threes-strikes or graduated responses

were introduced during this period. › Spotify , a legal digital music service (among others) was introduced in

2007/8

Source; http://norwaco.no/nor/content/download/7259/83338/version/2/file/Synovaterapport+2010.pdf

http://norwaco.no/nor/content/download/7259/83338/version/2/file/Synovaterapport+2010.pdf


Sheer count of lawful services is not relevant

We need to move away from a sheer count of lawful services and look more closely at factors determining the successful adoption and growth of lawful digital services.

Factors that define the level of success are:

timely availabilitythe range and depth of titles available, business model (subscription, download to own, advertising)ability to time/format/device shift content, payment methods (credit card, pre-paid), easy of use and affordable price points.


Declining physical sales (MUSIC)

› Format shifting (LP-CD) peaked around year 2000

› Lawful digital services displacing physical sales (Korea, Norway, UK, Sweden)

› Increased competition from other platforms, Music (CD sales) migrating to TV (X-factor, Idol and Gaming)

› Increased competition from Live Performances

Sources: GOA United States Government Accountability Office, Report to Congressional Committees, Intellectual Property, April 2010. See also: Harvard Business Review File-Sharing and Copyright, Felix Oberholzer-Gee and Koleman Strumpf, May 2009, Digital Opportunity, a review of intellectual property and growth, Ian Hargreaves, May 2011 UK


Content ACCESS BARRIERS – copyright not the only barrier

› Access barriers are barriers to unhindered consumption of content, the presence of which often results in the personal consumption needs of consumers being unmet.

› WIPO identified following access barriers:– Consumer barriers (affordability)

– Content exclusivity and limited competition

– Deliberate non-availability of content (windowing, territoriality)

–Policy and regulatory barriers:

› Content regulation

World Intellectual Property Organization, Twentieth Session, Geneva June 21 to 24 2011, or access: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_20/sccr_20_2_rev.pdf


The market supply failure of lawful “on-demand/digital” content

Source PWC Global Entertainment Outlook 2012


Agenda



›CONCLUSIONS


we think – Guiding principles

› Continued educational efforts are necessary› Reasonable expectations need to be accommodated

› Enforcement is just a part of the solution› Balancing the interests of innovators and intermediaries

› Governments must stimulate growth of lawful digital content services– Reform copyright – but not liberalize file sharing


we think – Continued educational efforts

› Educational and awareness raising campaigns on the value of intellectual property should be encouraged and promoted.

› Education about appropriate user behaviour, on one side and enforcement measures on the other, are certainly part of the solution, but they are not enough.

› More compelling lawful digital offers must be allowed to enter the market.


›TIME SHIFTING›DEVICE SHIFTING›PLACE SHIFTING›PRIVATE SPHERE›LAWFULLY ACQUIRED

In combination with a legal system that

promotes availability of

digital licensed content and

efficient licensing

we think – reasonable expectations must be met


we think – direct enforcement by rights holders

› Direct enforcement by rights holders is an undisputed right to enforce private property rights.

› Rightly so, this right is undisputed and available option to rights holders to act on infringements.

› The primary and often the sole beneficiary of private enforcement is the private rights holders.


we think – indirect enforcement

› There is a serious and important difference between requiring intermediaries to pass allegations of infringement on to end users

› And requiring intermediaries to take action to impose sanctions on their users for alleged infringement

› Intermediaries are obliged and must respect the right to privacy, freedom of communication and presumption of innocence



› The rights holder is the primary and often the sole beneficiary of preventive infringement actions

› Accordingly, it is appropriate for the rights holder to cover the costs of the action (including ISPs) and also bare any associated risks



› To the extent that enforcement action of rights takes place, relying on the evidence provided by a rights holder, the rights holder should take responsibility for the consequences of the action

› There is great variance in the accuracy and trustworthiness of automated systems that are employed (quality of alleged infringements)



› No outsourcing of law enforcement to intermediaries should take place.

› Any sanctions should remain the prerogative of the courts.

› Only due legal processes can ensure that allegations are properly evaluated, defences adequately considered, and proportional punishments imposed .


we think – innovation is also essential

› As technologies and business models continue to develop, limitations of intermediary liability through safe harbour regimes and explicit defences play an extremely important role in enabling innovation.

› While placing increased liability and responsibility for copyright infringement on intermediaries can assist in making enforcement more efficient, such moves must always be considered in light of the impact on the intermediaries and investments in new innovations.

› Innovation should not be limited on the basis of conventionalism or apocalyptic rhetoric or narrow interest.

Source: Josh Lerner, Jacob H. Schiff Professor of Investment Banking at Harvard Business School, Harvard University, Cambridge, MA. In the paper titled; “The Impact of Copyright Policy Changes on Venture Capital Investment in Cloud Computing Companies, 2011


›Increasing availability of lawful digital/on-demand content

›Decreasing technology specificity of copyright/licensing/exceptions

›Minimize transaction costs

We think- stimulating lawful digital services – should be the main focus of policy reforms

More information available : Digital Content Promotion


we agree with - RIAA statement 1 Dec. 2011

“To be clear, no legal efforts are a panacea — compelling legal

consumption options are the most important”

Source: The Tennessean, 1 December 2011, RIAA largely succeeds in goal of bringing piracy under control


Agenda



›CONCLUSIONS


conclusions› Digital creative transformation is our common

destiny

› Digitization is not a zero-sum game

› Adequate enforcement is just a part of the solution

› Fact based enforcement policy approach is necessary

› We need a Digital Copyright Reform to:

› Stimulate the growth of lawful digital market

› Formulate a sustainable approach to displace illegal access and grow industries


Conclusions- Adequate enforcement is

1. Fact based2. Balanced3. Focused on end user demand4. Respects the right to privacy5. Supports continued

innovation6. Promotes growth of lawful

digital services7. Respects the relative nature

of copyright8. Avoids outsourcing of

enforcement to private third parties

Documents

Copyright enforcement for the digital age q1 2013