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The tide is rising: copyright and intellectual property

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The issue of copyright and intellectual property (IP) has raised its head again. Some news reports have suggested that the new Government may rekindle talks on anti-piracy measures. While more recently the Trans-Pacific Partnership has grabbed headlines with its intellectual property chapter. Although it’s difficult to make an informed comment on that report given its non-transparent nature (and industry haven’t been invited to take part in those discussions) the general debate that has been sparked demonstrates that copyright and intellectual property remains a hot topic.

The issues surrounding copyright and intellectual property are something that I’ve covered before on the iiNet Blog. And although that article was written over a year ago, not only did the sky not fall, but when it comes to the distribution and consumption of content, the tide has actually risen. With increasing access to faster speeds courtesy of the NBN, we have found that customers’ usage actually increases. Content in the form of video, music, books and more are being consumed in greater numbers than ever.

This has consequences for everyone involved from consumers, to creators of content, to those who wish to curate or control it.

Consumers

A lot has been said about people who aren’t willing to pay for content. But surely there’s nothing worse than paying for content you can’t access. I’m a paid up member of an Australian sporting team and a subscriber to their online coverage of games, and I was incredibly frustrated at not being able to stream a live away game, recently. The subscription service is heavily promoted as “See every game live!!”  It didn’t show live and 10 hours later it still wasn’t available. Both my ‘feedback’ and tweets have been ignored.

And how about accessing that paid content in ways that are more convenient? Whether it’s streaming to your phone or tablet, watching from your laptop in the backyard or in front of the flat screen – it is reasonable for consumers to decide for themselves how, when and where they consume the content they’ve purchased. If I buy a DVD why shouldn’t I also have access to stream or download the same film, if that’s more convenient?

It can also be frustrating depending on where you live. Sure US TV series often have “world-wide” releases but there is a caveat on who can access that content based on where they are in the world. Fans of Breaking Bad outside the US lamented the fact that they could not access the final series as soon as their American cousins could. Or who could forget the online hype that surrounded the Red Wedding episode from Game of Thrones? Dedicated fans avoided news sites, blogs, social media and even members of their own family, for fear of being exposed to spoilers.

New models for a new era with new habits

The people that curate and control content need to recognise what is happening in their own backyards. They might not like it for obvious reasons. As Stephen Langsford, founder and CEO of Quickflix, has said: “When you’re a big traditional player, you want to ignore the new models because you want to protect your legacy system.”

But some industries are actively listening to fan feedback and they are reaping the benefits. Legendary games developer, Valve Corporation, created Steam: a platform that allows them to distribute content directly to their fan base.  The company also recently introduced the Linux-based SteamOS which it hopes will “facilitate closer relationships between game developers and players, and encourage more of a community among players”. They understand their community and are responding to rather than dictating the way forward.

An interesting phenomenon that has attracted notice is the idea of ‘binge-watching’. This occurs when viewers gain access to an entire TV series, for the first time, and might find themselves struggling (at one in the morning) to convince themselves to watch “only one more episode”. (Apparently, a binge is defined as watching three or more consecutive episodes in a single sitting – Colour me ‘binged’.) It’s a practice that has helped boost sales for shows like Breaking Bad, and launching them into cult TV status.

Watching content, in a form other than the way the broadcaster has planned, is now a serious issue that US-based content distributors like Netflix and Amazon are facing. In-season binge-watching affects both the value proposition of their advertising model and also the way fans engage with content. This means that the marketing framework constructed to fund the product is premised on one kind of behaviour, while the consumer is acting quite differently.

It seems that those who sell content don’t always get their act together at the same speed at which their audience is morphing – a risky strategy. This industry risks ignoring the lessons of the past (hint: torrents) and may be doomed to repeat them.

Content creators

Those who create content are also caught up in the current upheaval of changing content distribution platforms. Brian Robbins is founder and chief executive of Awesomeness TV. Launched in 2012 as a YouTube multi-channel network, it has around 25 million subscribers with nearly 2 billion views. “What’s happening online today is very similar to what happened in television 25 years ago. Just as branded cable networks like ESPN, CNN and MTV and Nickelodeon transformed television, a new generation of online channels is going to do the same thing,” he said.

There has been a dramatic increase in the number of “made-for-web” and “free-to-watch“ series being produced, sidestepping the traditional middlemen. The Guild was one such series sponsored by Microsoft. Episodes are free to watch online, while fans can also purchase DVD series and merchandise through the website.

Some musicians have also taken arms against online music platforms. Radiohead frontman Thom Yorke recently called Spotify the “last desperate fart of a dying corpse”. Harsh words but obviously spoken by someone who feels very strongly about the way musicians – new and established – are being treated by industry “gatekeepers”.

The old model is broken

Researcher Rebecca Giblin, from the Faculty of Law at Monash University, recently published a paper on the use of ‘graduated response’ regimes, which attempt to curtail on-line copyright infringement by creating new obligations for ISPs.

She reviewed the effect that this approach has had on a number of well-publicised examples around the globe. Overall, Rebecca’s paper concludes that there is a startling lack of evidence that a ‘graduated response’ regime helps achieve any of the copyright law’s underlying aims, never mind the objectives of the badgering rights-holders.

Some key points from Rebecca’s paper:

  • There is no evidence demonstrating a causal connection between ‘graduated response’ and reduced infringement. If ‘effectiveness’ means reducing infringement, then it is not effective.
  • There is little evidence that any of the varieties of ‘graduated response’ increases the size of the legitimate market.
  • There is no evidence claiming a causal link between increased legitimate sales and ‘graduated response’.
  • ‘Graduated response’ schemes do very little to actively require, or even encourage, beneficiaries to make more content than they otherwise would, or to distribute it more widely.

What now?

At present, the Attorney General’s Department appears to have decided against any new roundtables until after the AG gets a report from the Australian Law Reform Commission (ALRC) on the Copyright Act. This is interesting, given that the terms of reference for the ALRC specifically excluded reviewing on-line infringements…“In undertaking this reference, the Commission should:…not duplicate work being undertaken on: unauthorised distribution of copyright materials using peer to peer networks”.

Fans are people who love to engage with their choice of content. They want to be able to access and enjoy it in a way that suits them otherwise (by definition) it is not enjoyable. Content creators spend a lot of time, energy and money to create amazing shows that people will love. Doesn’t it make sense to distribute that content in such a way that it helps to nurture and sustain that positive engagement?

16 comments

  1. Elaine says:

    Fantastic article. so “on the mark”. With the absolute “crap” being dished up to us on free to air tv is it any wonder we have to download to remain sane!

    [Reply]

  2. Arron says:

    You forgot the most annoying thing of all. Buying an official Bluray / DVD with enough copyright warnings, trailers and other garbage to make me think twice before buying it at all. There is often enough time to stick a Bluray into your machine and make a coffee. However to really ratchet up the frustration you often need to duck back in a couple of times and press a key or two so it (finally) gets to the content you have paid through the nose for.

    I cannot be the only one considering it may be better to “rip and replace” the menus so the product is fit to view next time.

    [Reply]

  3. Steve says:

    You didn’t mention the recent parliamentary committee that found that US content is priced in Australia much higher than in the US, and that the only believable reason advanced was that “the market can bear it”. If copyright laws are only used to inflate prices in Australia why shouldn’t the consumer circumvent them if he can?

    [Reply]

  4. Concerned says:

    I for one would gladly pay for content if available, especially if Netflix or Hulu were allowed in Australia. Everyone should have the right to watch any content they choose at any time they want and not be subjected to network schedules or the huge cost of viewing on Pay-Tv. And they wonder why Australia has copyright issues. Come on get with the 21st century and embrace change. Otherwise Australia will be left further behind the US and Europe.

    [Reply]

  5. Ian Hodgkiss says:

    I should have kept the little speech I wrote yesterday about the TPP on the Avaaz.org site. The TPP appears to be all bad, and all wrong. It appears to be promoted by established US corporations to control their ability to profit at the expense of sovereign control. The rules on copyright, pharmaceuticals and agriculture are all being discussed in private and without discussion by relevant stakeholders (aka the users). Monsanto will ban the use of even native plant species if it means they can get GM plants introduced (for GM – read crops that can survive a dose of roundup). Copyright will be more draconian and controlled by a small handful of US corporations. Same with pharmaceuticals. It may be conspiracy theory, but why are the discussions being held in total secrecy without outside involvement? Sign the petitions on avaaz – even if it is only to force more discussion about the impending changes before they are introduced forcibly on sovereign states such as Australia. Even iinet should be creating an open discussion on what is about to happen and demanding questions be asked and answers given before the signatures are inked in.

    [Reply]

  6. Sean says:

    How about they make content with ads freely available for download, like tv shows. How about they stop paying actors $50m for 1 movie then tell me they are poor and need me to buy their dvd. Heres the reality, if a movie looks awesome then ill go to the movies and watch it. But what have a paid for? The rights to view that movie? If i go home and download it is that wrong? They keep breaking profit records for movies through box office, if it doesnt make money they blame piracy. They should all get over it. You wanna stop illigal downloading, hire hackers to take down torrent sites.

    [Reply]

  7. Andy says:

    I think the other business model you need to look at is your own Movie Rental system over the Fetch. I don’t use it because it’s not competitive with the local video store unless you are hiring blue-rays possibly (don’t own one), and you don’t really compete with the weekly hire prices. So I don’t use it and hire the odd video from time to time. You also don’t make it easy to find just the $3.95 videos, so I don’t both bother (show me $3.95 rentals filtered by a genre sorted by newest release first). Let’s not forget the holidays are upon us and those 10 for $10 weeklies are a God-send with the kids on holidays.

    So here’s a few suggestions:
    * Keep your current prices for HD if you must.
    * For SD make the price tiers $2.99, $3.99 and $4.99. That’s gonna save me at least 2 bucks on a new release DVD and that’s my mental “it’s now worth it” line in the sand not to drive 5 minutes down the road.
    * Make it easy for me to find movies in the price range I want.
    * Give me loyalty points for watching movies and let me cash them in for a free rental.
    * Give me a discount when hiring in bulk.
    * Let me hire, say, up to PG-rated for a week over the school holidays (couple that with a bulk discount and you are on a winner).

    Anyway, those are some thoughts.

    [Reply]

    Amy Pearce Reply:

    Hey Andy!

    Some great feedback here, thank you.

    The iiNet Fetch team have a dedicated mailbox for all Fetch TV suggestions and comments.

    Feel free to email them, FetchTV@iinet.net.au

    Cheers,
    Amy.

    [Reply]

  8. Glenn says:

    Steve,
    You need to promote this essay where the younger generation have access to it, say on Triple-J’s discussion forums. You’ve hit the nail on the head with “protection of existing revenue streams” and that’s all it amounts to.

    [Reply]

  9. Hyperman says:

    Great article.

    Scary we have a government secretly doing deals without our knowledge of terms until its imposed on us.

    Cheers

    [Reply]

  10. Kaye says:

    As a content creator and a consumer, I am very interested in the issues surrounding copyright and IP in such a volatile media landscape. I found your article insightful and articulate. Thanks for sharing.

    [Reply]

  11. KBM says:

    Well researched and put Steve. Thank you.

    I wholeheartedly agree. By not keeping up with demand and changes in viewer habits these “gatekeepers” are not only doing a disservice to the viewers but also the creators of the content and the content itself.

    I’m personally infuriated by the delay in content both online and the physical release of DVDs in Australia. Then there’s the ramped up costs – in some cases it’s actually cheaper to purchase o/s and have shipped than to buy in-store or even in iTunes.

    It’s a very disappointing state of affairs. I honestly believe that pirating would not be so popular if the content was 1. available in a timely manner and 2. not a blatant attempt to turn a hefty and unreasonable profit at the viewers expense (which it clearly is when compared to o/s markets for the same content).

    [Reply]

  12. Josh says:

    Great article and a refreshing amount of honesty for such a contentious topic, especially from an ISP. Speaking as someone from the creative advertising and comms industry, I can promise you that there’s plenty of dinosaur marketing models and infrastructure still being sold to traditional clients, most of which is completely ignoring the exact kinds of consumer behaviour you’re describing. The amount of conversations I’ve had with people of all ages who question the very need for a ‘television’ when all they really want is a ‘giant monitor’ should be seen as a massive opportunity for new growth in manufacturing and marketing for TV makers, content producers and digital advertisers alike.

    [Reply]

  13. Paul Hammond says:

    Great article!

    Evolution is so successful because it does not depend on protection with intellectual property rights, whether in the tangible of the species or the intangible of a language.

    [Reply]

  14. Sean says:

    This seems to be written from the point of view of someone who profits from selling bandwith…
    Didn’t see the word “theft” used there.

    [Reply]

  15. Timothy says:

    This reminds me of a time 15-20 years ago when I used to buy books online from the US and get them shipped (6-8 weeks shipping time) into Australia. I’d pay around $2.99-4.99 for books and Authors that I couldn’t get in Australia and if I could would be around $12-15. Sometime the publisher would publish the first book in a series then because of lack of interest not bother with the next 3-4. Look at the dire straights the pysical publishing world is in at the moment in Australia they still sell books for $20+ and yet books are availble in the US for $8. This price disrepency has been going on for decades and the retailers are still complaining about people buying overseas and bringing into Austalia because it affects the big Companies profit marjins (Managerial Bonuses) – screw your consumers and don’t bother listening to them when something isn’t working or right.

    [Reply]

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