ORGCon and the tentacle in your pocket

“H.P. Lovecraft taught us that you shouldn’t be worrying about the tiny tentacle extruding into our world, but the great big Elder God that it’s attached to.”
– Cory Doctorow

Yesterday I was at the Open Rights Group conference at City University. Julian Huppert, the new Liberal Democrat MP for Cambridge proved to be a bit of a star as one of the keynote panellists, although he mysteriously failed to turn up for the Lib Dem session he himself had organised.

James Boyle and Jennifer Jenkins, from Duke University law school, spoke about the effect of copyright law on our culture; Cory Doctorow talked about Digital Rights Management; and a cross-party panel of MPs looked at where we go from here politically. Pretty much all of what I write below is taken directly from their mouths (verbatim, in the case of all metaphors and aphorisms) and possibly infringes their copyright, but I hope that they would be indulgent in the circumstances.

Jennifer Jenkins argued that the conditions of creativity today are fundamentally different from the past, because we have deprived ourselves of our contemporary culture. The use and quotation of other works has been central to creativity through history. Brahms’ first symphony is known as ‘Beethoven’s tenth’, so much does it owe to its creative influences. Today, even tiny fragments of music – an arpeggio, even a few notes – are copyrighted, with only artists with lawyers and corporate backing able to afford the up-front fees to clear samples for use. The default setting of the law is that contemporary works are off limits to us for exploitation, reference, and even parody. What was true for Beethoven and Brahms, or the giants of jazz or rock and roll, isn’t true for us today.

James Boyle, spoke about the ‘Twentieth Century Black Hole’– a whole century of creative culture that has passed beyond the event horizon of copyright law.

Only a tiny percentage of the stuff in the British Library is commercially available, even in the era of Ebay and Amazon resellers. The majority of works exhaust their commercial viability after five years, and then disappear. The majority of twentieth century culture is caught in ‘orphan works’ for which the copyright owner cannot be identified or contacted. Copyright is a strict liability system, meaning that these can’t be used or reprinted. They are lost to us.

According to the Gowers Review of Intellectual Property:

“Estimates suggest that only 2 per cent of all works that are protected by copyright are commercially available. In 1930, 10,027 books were published in the USA, but by 2001 all but 174 were out of print. The British Library estimates 40 per cent of all print works are orphan works.

“This is a large problem for many users, including those who wish to make copies for archiving or preservation and need to seek permission. The Chair of the Museum Copyright Group, Peter Wienard, believes that from the total collection of photographs of 70 institutions (around 19 million), the percentage of photographs where the author is known (other than for fine art photographs) is 10 per cent. In a British Library study to get permission to digitise 200 sound recordings, researchers were unable to identify the rights holders for almost half the recordings”

Copyright law does a good job of creating incentives for innovating and creativity, but in the UK works are currently held in copyright until seventy years after the death of the author. As the Gowers Report , commissioned by the Government in 2006 but largely ignored by Labour Ministers, has shown, allowing the estates and heirs of performers to be able to block usage rights is bad for consumers and actively harms creativity and innovation. The Gowers Report suggests that extending copyright beyond 50 years is purely harmful. The ideal period may be something like 14 years.

The extension (and extension and extension) of copyright has only ever been about Governments helping the rich protect their profits.

The creative industries (with the emphasis here very much on industries) have for a long time been using law to screw consumers. The war against their customers is only intensifying as modern technology hastens their inevitable decline.

Cory Doctorow spoke, as eloquently as ever, about Digital Rights Management – the technologies that restrict how people can use the data they own, make devices take orders from people other than those who own them, and stop devices doing what the owner would like them to (like Apple not allowing software on iPhone and iPads that competes with products of Apple or partner companies).

Technical DRM can only ever be a temporary solution. If you alienate your customers they don’t come back – especially when there are more open competitors, or anyone can download for free a copy without any annoying DRM. It’s a bit like the creator of a bookshelf deciding what books you can keep on it, or a dishwasher that requires you to have a certain sort of crockery. Everyone knows that it’s gross.

Cory Doctorow has said that there he doesn’t really care about the grandees of the old system, and it’s hard to disagree. Radio killed the vaudeville star; video killed the radio star. Some blacksmiths became Model T mechanics, and some became old drunks. The railways made the people who stitched horse feed bags redundant. Technology giveth and technology taketh away.

New technology means that more and more people are able to make art and music, but the current business models of the creative industry may not weather the storm. Technology just makes things too easy to copy, and there is absolutely nothing nothing nothing that software developers can do about it. Short of an Orwellian police state there’s nothing the Government can do about it either.

But to prop up the dying business model, the Labour Government bequeathed us the Digital Economy Act and the quixotic chase after peer-to-peer file sharers – with its option to cut families off the ‘net and its easily-abused siteblocking option.

The most intriguing part at the conference, for a politico, was the panel discussion with Julian Huppert MP, Tom Watson MP, and ex-MP John Grogan, titled Digital Economy Act: What’s Next?

The last Labour Government rushed the sprawling rag-bag of a bill through in the wash-up, with no time for scrutiny or amendment. It was the first ever controversial bill that had its second reading after the Prime Minister had already been to the Palace to dissolve Parliament, and so was pushed through by whips on MPs who were apathetic about the issue and who were already in election mode.

The Act was pretty much drafted by industry lobbyists, perhaps on a yacht in Corfu with Peter Mandleson. Grogan and Watson recalled how Westminster was flooded by lobbyists – more than they’d seen on any other issue. It was an abuse of democracy – bad law, forced through with dodgy constitutional tricks. Tom Watson noted that the same lobbyists are already back in Westminster, taking new MPs out for lunch.

So far so much a plagiarised summary of what everyone who already cares even a little bit about this issue already knows. In January 2009 Alix Mortimer wrote:

“I’m probably one of the few people in the political blogosphere who doesn’t regularly read tech blogs as well. I am very much your plug-in-and-play blogger.  So far as technology goes, I am a classic rearguard early adopter, last in line of the nearly-cool kids. It’s a burden.

But it does have the advantage of making me my very own canary.

If I suddenly start to get something, start to perceive a development, or start to read up on something to do with the world of tech, it means something BIG is about to happen. And this is the development I perceive:  increasingly, as the government’s designs on our personal freedoms grow ever darker and Jacqui Smith’s boots grow ever shinier, tech bloggers’ concerns are becoming our concerns as politicised liberals.”

But ORGCon was, by any description, a big hall full of geeks. Penny Arcade and XKCD t-shirts. More iPads than I’ve ever seen in one room (three). Introductions that ran, “Hi, I’m Jo. Jo5000 on Twitter.” A giant, obnoxious twitter feed projected onto the wall behind the speaker. Twitter is nothing more than an echo chamber, and it was everywhere.

But a lot of the chatter at the ORGCon workshops was about how we create a “citizens’ agenda” – actually get people interested enough to lobby their MP and create a groundswell. I think everyone at ORGCon recognised that this hasn’t even begun to happen yet. Ms. Mortimer is clearly too sensitive a canary.

As James Boyle said, Intellectual Property law used to be something for industry to worry about, not for individuals. It used to be really hard to break copyright law – you’d need a printing press or a movie studio. Now we all have the technical ability to break copyright, so we are all being subject to laws that were intended to govern businesses.

It affects everyone. It’s Apple tying customers into the bad deals that monopolies always bring. It’s Amazon deleting books from your kindle. It’s access to the whole internet – and everything that implies in our society – that can be cut off without proof, conviction, or a judge. It’s the whole of Twentieth Century culture trapped in amber because of our lack of sensible Orphan Works legislation. It’s corporations extending artificial monopoly rights to milk money out of us consumers even after the authors are long dead. It’s stifling the creative potential in everyone that modern technology has unleashed.

We have a new Government, with Vince Cable in a position to make a change. It’s not just geeks that should be interested.