There's been a whirlwind of announcements, commentary and downright bad blood beginning to steam up around the Associated Press' moves to position news content from its own reporters and its member organizations more effectively in the online environment. The latest developments in the war for news organization survival were kicked off by the AP board's announcement that it would be moving aggressively to identify and to challenge Web site publishers that were using unlicensed AP content illegally. The "why" of this move, largely ignored by media reports, is contained in the rest of the announcement: AP is introducing a new schedule of lower fees for its member news organizations that will make it easier for them to participate in AP distribution and news use. Faced with having to respond to the revenue crunches experienced by most news organizations this year, AP has no choice but to ensure that their online revenue streams from organizations consuming AP content can be captured as effectively as possible.

From the perspective of public relations, any constructive aspects of the latest AP moves appear to have been lost in a sea of furor rising up from bloggers, Twitters and other online voices. TechCrunch viewed AP's moves as being akin to the RIAA's moves to prosecute consumers for downloading relatively meager quantitites of music on to their PCs - legal moves that have backfired in many ways both from a legal and public relations perspective for the music pubishing industry. TechCrunch also highlighted a cease-and-desist order sent by AP to a Web site using AP-posted video from YouTube in an embedded video player. Of course YouTube videos are made for embedding in other Web sites, and the site that happened to be using it was that of WTNQ-FM, already an AP affiliate member. Google CEO Eric Schmidt commented in the wake of these PR fiascos by AP that it's a good idea not to "piss off your customers"- especially those who are doing their very best to abide by fair use policies for the reuse of copyrighted content. AP could certainly take some lessons from Google's efforts to get publishers to swallow some of their own bitter pills with much kinder and gentler approaches to public and professional-level communications.

The question is, though, what is really the most effective path towards revenue growth for AP at this time - and are they handling the rollout of new strategies in a way that will help those new revenue streams to materialize? From the looks of things, AP is still struggling to find answers to that question. Certainly pursuing legal enforcement against blatant content pirates is one possible route, and it's not without its merits. Data published by Attributor indicates that nearly half of the Web sites taking content from major publishers are copying more than 90 pecent of the original text of articles. Knocking out parasite Web sites that copy unattributed content strictly for the purpose of sucking up ad revenues that would go otherwise to the original publishers would do the bottom lines of all online publishers a great favor. It's a shame that AP's initial efforts along this vein have resulted in embarassing misfires - it's an important goal that should not be sidelined by a mishandling of the policies built on top of the underlying copy detection technologies.

But the larger concern is whether AP is really "getting" how to make money in the online publishing environment. The AP board announcement included a statement indicating AP's intent to build a search portal that would feature only content from "authoritative" news sources. While this is a constructive goal of sorts, we've had such search engines for years already. The Topix search engine focuses primarily on traditional media sources, and, for that matter, Yahoo! News and other major portal news services have focused on aggregating and searching mainstream news even longer. Both are good efforts in their own ways, but they're not floating the boat for most online news publishing revenues and they're not growing in any significant way. Why would yet another search portal wind up being the solution to news publishers' concerns?

The future that AP needs to embrace can be summed up in a fairly simple phrase: get news content that people really want to read to where it can make money. In broad concept that's pretty much what AP's mission has been all along, but in insisting that that mission cannot be expanded or altered significantly in light of how news is created today is holding back both AP and its member organizations from surviving and thriving in online news markets. Media organizations need to become better at aggregating sources of news more agnostically: if someone is streaming live video via Qik from their mobile phone at the site of a plane crash, then AP should be the natural source to which news organizations would turn to find such content as breaking news, not "i-reports." The idea of "authoritative" news need not always be synonymous with editorial and news-gathering methods that grew up in the era of printing presses. With today's publishing technologies editorial values can be implemented in many ways that can expedite the most compelling information getting to the right audiences at the right time.

This recognition that its own members need better agnostic aggregation of news sources is key to AP supporting the economic performance of those news organizations. Thomson Reuters CEO noted recently at a conference, "Why does The New York Times need to have 600-700 journalists? Why not 30 journalists with 30 apprentices?" In other words, if the economics of news have shifted permanently, why try to justify subsidizing jobs that need to move elsewhere in the news economy simply because you want only specific people in specific organizations producing news a specific way? With billions of people around the world equipped with real-time news publishing tools, including increasingly successful independent journalists, the world's attention span has permanently embraced this "Content Nation" as a source of information that they trust. That's a fact that will simply never go away. Trying to make it go away is about at pointless as anyone who tried to sift the tea thrown overboard in Boston Harbor back in 1775. Even if you could do it, who would want to drink it?

Instead of arguing with people who are both consumers and sources of news, AP needs to take a deep breath and think about how they can power the profits of today's news organizations using whatever content - news, metadata, links, video, anything - will help them to make money. In some instances this may mean new members and approaches to membership, in other instances it may mean playing a very different role with existing members and in how they participate in its editorial efforts. This can be a hard thing for any organization with a venerated history as rich as AP's to do, and I know that they are trying their best to move in that direction. But if they were able to leave the confines of Rockefeller Center behind to set up shop in dot-com West Side digs, one would hope that AP could help to carry both its traditions of excellence and of innovation to new levels of performance in the news industry that take it in directions that others have yet to dare to imagine. The time to dream a new dream at AP has come. I do hope that they start to envision and to realize that dream aggressively some time soon, both for its own sake and for the sake of its members.

Labels: AP, associated press, Attributor, copyright, Eric Schmidt, Google, News, techcrunch, thomson reuters, tom glocer, Web search engine, Yahoo, YouTube

I've tried to remain low-key about the Associated Press action against the Drudge Retort, a parody of the famous Drudge Report political Web site, but given the furor out there I think that a post on the topic is worthwhile. The AP has raised "takedown requests" claiming violations of the Digital Millennium Copyright Act (DMCA) and other laws in unlicensed use of its content in seven of the Drudge Retort's blog post. Not only is the Drudge Retort being challenged on its own use of AP's content but as well for people in comments sections that quote paragraphs from AP content. The Drudge Retort's Rogers Cadenhead commented on the takedown letter on his own weblog and provided a summary of each of the takedown requests, citing the examples.

Similar to the lawsuit raised by AP against Moreover for their use of AP headlines and ledes to provide links to AP content the concern of AP seems to center on the use of headlines and ledes as copyrighted content. Unlike the AP/Moreover suit, though, this takedown letter focuses on only seven items rather than a bulk use of AP headlines and ledes. And unlike the AP/Moreover suit, some of the headlines on the Drudge Retort site were not AP headlines but headlines rewritten by the site's staff. Also notable was that the sections of text from AP stories were quite small. In all of the sections posted by the Drudge Retort itself they were either just a lede sentence or a lede plus a quote from someone at a public event.

The Drudge Report appears to have complied with the takedown order and AP's Jim Kennedy promises guidelines for bloggers using AP content, but awareness of it spread quickly through social bookmarking services and weblogs and has ignited a widespread reaction from major bloggers and mainstream commentators. TechCrunch's Michael Arrington offered one of the stronger statements, claiming that his prominent weblog would no longer reference AP content. Others were more inflamed in their rhetoric, including this gem from Matthew Ingram:

I don’t want to be accused of succumbing to Godwin’s Law, but I would argue that a dialogue with the AP has about as much chance of being “constructive” as Chamberlain’s discussions with Hitler over the fate of eastern Europe.

The New York Times' Saul Hansell tries to steer a calm course through the AP challenge in their Bits blog but in the era of sub-millisecond delays of information transition used to power most large-scale trading of financial securities his citation of the century-old "Hot News" New York statute is shaky at best. If someone is linking to a story that's already minutes, hours or days old on the Web, much less in investment banks, how "hot" can that news be? And since to get the story in full one must still go to the licensed source, the licensed source is going to benefit financially from more public awareness of their having a story available.

The clear benefit of inbound links and short, fair use-style citations can be seen in the impact that social bookmarking has had on AP licensors. Looking at the data at right from Compete.com, news Web sites that are major licensors of AP content do not appear to have been harmed by the growth of social bookmarking sites such as Digg, which provide similar small snippets of content and headlines from AP and other sources. In fact, one could argue by such a trend that much of the growth at news sites in recent years has been due to the attention that weblogs and social bookmarking sites have paid to their content. Social media is the news world's best friend at this point, providing an editorial capability that curates high-value content from professional media organizations that would otherwise be ignored.

But the real point seems to be whether AP can gain financially from this exercise. Facing a dwindling number of mainstream media companies available to purchase its content AP its struggling to come up with a way to build a broader base of revenues in an environment in which their audience has become a far greater source of content curation than their traditional client base. Whatever the validity of AP's legal citations - they seem to be to be quite weak and awaiting only a decent lawyer in opposition to them to have them swept away - they are alienating the very marketplace that is driving growth for their existing licensors at a time when that marketplace needs AP content less than ever before. It is all too unfortunately like the RIAA-led lawsuits against consumers of online music, which have done little to change the fate of music publishers who have lacked a coherent marketing strategy to deal with the power of online music consumers to drive both tastes and sales.

As valuable as AP content may be, for most news stories that people will link to and comment upon online there are readily available substitutes from other wire services. AP's position as a service bureau complicates their ability to counter the power of proprietary wire services such as Reuters and Agence France-Presse, but clearly the problem is one of having only so many popularly-tracked newsworthy events to cover that will result in real "hot news" that others lack. In the meantime weblogs and other emerging publishing outlets are creating new sources of news and newsworthy opinions that could be syndicated by AP into their distribution network far more aggressively.

From a marketing perspective the real issue for AP, like the music business, seems to be far less about protecting an existing product line and far more about what needs to be done to rethink both the product line and the marketing rationale for the core product. Instead of resorting to lawsuits and takedown letters as a primary strategy to enforce the value of AP content on the Web, tactics that could create both legal confusion and a potential dilution of the value of the AP brand in the eyes of consumers, AP needs a "win-win" strategy that looks upon the drivers of economic value in online publishing more realistically - and that begins to incorporate new sources of content worth distributing to its worldwide subscribers and more valuable services.

A more refreshing approach to the opportunities available from social media is definitely in order. Simple example: instead of thinking about charging people for using AP headlines, why not PAY people for the click-throughs that they bring to subscriber content and charge higher rates to subscribers for the service? Hmm, maybe those bloggers are pretty good folks after all.
In the meantime, perhaps that nice linear relationship between social media growth and sites using AP content may not be looking so linear for a while.

Labels: AP, blogs, copyright, DMCA, drudge retort, fair use, michael arrington, News, techcrunch

The first OnCopyright event from Copyright Clearance Center held in New York this week was a forum established to probe the value copyright in an era of electronic distribution and how to profit from it. Panels ranged from technology, legal and publishing issues across the board. You'll find below links to our events blog here as I complete entries and below that a summary analysis posted after the conference.

• Technology Confronting the Tools of Disruption
• Shifting Perceptions of How You Can Use Copyrighted Materials
• The Lawyers Probe the Enduring Search for Balance
  
• Remixes - Art, Creativity and Ownership

In sum it was an excellent event with really meaty panels, which, though a bit rambling at times, managed to delve deep into very important topics relating to copyright and intellectual property law. At the end of the day I had a chance to speak with Suzanne Vega for a few minutes to ask her about how her cooperation with remixers helped her to extend her brand. She said that it was very helpful, a point that did not come out in the panel and a point that it at the core of what copyright law seems to be missing in general: copyright is not building brand value for original works creators as effectively as it used to.

Ultimately it's not the distribution of copies that's at issue as much as the fact that we have a copyright system that still focuses on the right to distribution of a copy as the primary key for determining when and how the value of content is realized. With essentially free distribution to and from billions of points worldwide this concept no longer scales well as a relatively simple tool to manage content commerce given the traditional method for establishing licensing through contracts negotiated through legal departments.

This problem was underscored in a conversation at the conference with SLA CEO Janice LaChance. Janice defended her panel from the Buying and Selling eContent conference in which prominent corporate librarians bemoaned publishers doing little to address many key issues regarding their business models, especially how they related to copyright. Put simply, the publishing industry has enormous vested interests in managing copyright through traditional legal and business channels, preferring the intricacies of case-by-case dealmaking to the risk of distributing content to the wrong people under the wrong terms.

This emphasis on legal departments as key elements of publishers' fundamental revenue models and opportunistic lawsuits that argue for copyright enforcement on increasingly arbitrary grounds has created an utterly balkanized landscape of kludgey deals and half-considered rulings in dozens of courts that in essence has dismantled much of the value of the once common and simple concept of copyright.

In the meantime the online economy has prospered, not by corrupting copyright but by creating value out of content in legitimate derivative works and in new sources of original authorship which in sum dwarfs the output of traditional publishing outlets. Services such as those from the conference's sponsor Copyright Clearance Center are facilitating the ability of people to apply copyright effectively online in a far more automated fashion for specific items of content. Providing value in context is the true value of publishing, a concept that is conflicting more and more with the mass manufacturing model that drives the production of much of today's copyrighted content. Much of the value of online content for a given audience where infinite supply reigns is fleeting, highly contextual and oriented more towards executing business deals or building relationships.

The fundamental concept of copyright - that creating a temporary monopoly for a publisher based on the premise that control of distribution will sustain publishers - is becoming far more limited in its effectiveness to deliver value. The question is not whether someone should have a right to license their content for use under copyright but rather how they should license it. This is why I have suggested for several years that publishers focus on the concept of context rights rather than copyright. In other words, once content has been distributed, it finds its value most easily. The fleeting moments and contexts in which it becomes valuable are difficult to predict in advance in an online environment and the relationships that will result in those moments harder yet to predict.

What the copyright industry needs to adapt to is a different view of what technology will help rights holders to make the most of content that benefits most from unfettered distribution. I believe that this will lead towards is a new style of licensing that is more fully automated and which uses a variety of predefined models to compensate content creators for their works. The rewards may be smaller overall in many instances in terms of money exchanged, but offering more exploitable brand value over time as people discover not only the value of a particular work but the value of a relationship with the creator of the work.

I applaud Copyright Clearance Center loudly for the courage that they exhibited in assembing this event. It brought together many important players with very intelligent thoughts about copyright and the challenges that it faces. An institution such as CCC needs to embrace the future of licensing content boldly at this juncture to ensure both its own future and the future of compensation mechanisms that can encourage and reward the creation of value through publishing.

Labels: copyright, Copyright Clearance Center, intellectual property, oncopyright

There's been quite a rumble in the publishing community in the wake of this week's ruling by the U.S. District Court in Arizona in favor of Pamela and Jeffery Howell, defendants against a lawsuit raised by the Atlantic Recording Corporation for their alleged role in copyright infringement. Atlantic, with RIAA backing, was seeking a summary judgment against the Howells claiming that they had put music files on the KaZaa file sharing service, and by doing so violated Atlantic's rights to distribution under copyright law. That word "distribution" turns out to have become the pivotal point in a key decision that puts copyright law in its true perspective.

The key finding by U.S. District Judge Neil Wake is a simple but fairly profound observation. Wake notes that although statues and court precedents state clearly that a distribution of content is a publication, not all publications are distributions. Specific to file sharing, the defendants claim that they did not put any music in the KaZaa file folder designated for file sharing - and that the record company's claim that more than 4,000 files had been designated by them for download was due to a glitch in the KaZaa software that made their music files, present in a folder not designated for sharing, identifiable by others in the KaZaa network. So although these songs were made to look as if they were available for distribution by KaZaa, they were not by any intent of the defendants. The Howells also pointed out that their computer was accessible by others who could have made their files exposed to the KaZaa network.

The judgment reasserts that copyright is really not about the right to make copies but rather about the right to distribute copies of protected works for use by others. Implicit in that position is that individuals or institutions making copies for purposes other than distribution are not subject to copyright law. In other words, if you're using copies for your own licensed purpose, you're not a distributor: distribution is when you willingly make a work available for distribution and it's actually distributed. In the instance of the Howells, the judge perceived that through whatever happenstance an index saying that copies were available for distribution was not the same as saying that any specific person was actually distributing copies.

Though there is already a growing body of legal decisions that seem to be weighing against RIAA efforts to discourage individual consumers from copying content, the Howell decision is notable in that the judge went to particular pains to delve into the technological "hows" of file sharing as well as into legal precedents. In doing so, Judge Wake has challenged publishers pursuing such suits to recognize that the more that they go into these suits the more that they create a wide portfolio of rulings that begin to flesh out the full reality of electronic content use - a portfolio that over time has weakened rather than strengthened their claims to inhibit content copying. Put simply, the more that these suits continued, the more circumscribed their claims become and the more that their presumption of complete power over copying will weaken.

Already many in the music industry have recognized that trying to inhibit copying per se is counterproductive, as it weakens their ability to build brand value with consumers swapping from one platform to another at will to consume content. If your customer gets a new mobile phone, do you really want to hassle digital rights management issues when they try to transfer their music files to the new phone or do you want them to still be able to love the artists that you have in your stable? Increasingly being able to sustain passion for a brand is winning out over the absolute right to prevent copying. Distribution enables a relationship with a content brand: once that relationship is established, the relationship becomes more marketable than the content itself over time.

Music publishers are beginning to get a far stronger sense of building marketable relationships with audiences as the key to their future profits. Digital watermarking techniques are one key element of moving away from fortress-like content packaging and towards being able to understand the value of the relationships being formed with content as it moves from one context to another. If a CD is copied but nobody cares about it, that's probably a bigger problem in the long run than someone copying a CD and discovering that people care about it very much - and will give you opportunities for revenue that spring from that distribution. Managing copyright via asserting distribution rights is still a very key mechanism for enabling revenues, but the future is in recognizing that you're far better off in the long run taking advantage of free distribution to get content into the hands of people who are likely to be your most valuable customers. Once it's there, have your content packaging ready and able to start the value conversation.

Labels: copyright, distribution, legal, RIAA, suit

As Google tries to trumpet its new YouTube system for identifying copyrighted video materials you'd think that they would be getting some slaps on the back from commercial video producers. Instead Google's YouTube initiative, which was eagerly awaited only a few months ago, constitutes in the minds of many media companies only a partial and proprietary solution to the question of how to manage copyrighted materials in social media outlets. Google itself recognizes this when it notes in its description of its new service:

No matter how accurate the tools get, it is important to remember that no technology can tell legal from infringing material without the cooperation of the content owners themselves. This means that copyright holders who want to use and help us refine our Video ID system will be providing the necessary information to help us recognize their work. We aim to make that process as convenient as possible.

So how best to handle managing copyrighted materials across social media environments? Several media and technology companies have joined together to define "User-Generated Content Principles," an online document that provides a general framework of requirements for managing copyrighted materials in social media services. Although not a binding legal document the language of UGCP is clearly legally oriented, with the typical onerous one-sided expectations that any corporate legal team is likely to insert in terms of unconditional legal surrender. Moreover, if one tries to abide by this framework a social media service provider must consider the following claim in the UGCP:

Copyright Owners should not assert that adherence to these Principles, including efforts by UGC Services to locate or remove infringing content as provided by these Principles, or to replace content following receipt of an effective counter notification as provided in the Copyright Act, support disqualification from any limitation on direct or indirect liability relating to material online under the Copyright Act or substantively similar statutes of any applicable jurisdiction outside the United States.

In other words, even if you do everything that we ask you to, don't expect that copyright holders still won't give you a hard time. There's comfort for you.

The main rub in the UGCP document is that while it is broad enough to provide a general requirements framework to develop more universal copyright management services it does nothing to ensure that copyright holders will provide any significant standardization of copyright identification technology, filtering processes and reference materials referenced in the document. In essence it suggests to social media sites that they must be ready to institute whatever technologies that any number of publishers find to be acceptable to their needs. Given that Microsoft is one of the technology companies that has signed on to the UGCP one can imagine that there may be some proprietary interests in play on this front.

The UCGP document does cite some good best practices for managing copyrighted content in a social media environment, but it's far from clear that it brings the content industry any closer to a significant agreement on how copyright should be managed in online materials. Even as Google gets slammed by some for rushing to get some sort of filtering and identification system in place on a rapid basis we are no closer to copyright holders agreeing to a common framework for them taking on some reasonable portion of the burden of implementing tools that will make the universal identification, filtering and referencing of copyrighted materials simple and reasonable to manage.

To some degree the rise of digital watermarking and identification schemes that eliminate onerous DRM packaging are pointing towards a more workable solution. Being able to allow publishers to identify their content using reports from social media sites and their own scanning tools can help them to determine when the reuse of copyrighted materials is worth pursuing as a legal matter or as a business development opportunity. But until these technologies are implemented more broadly it's unrealistic to expect social media outlets to respond aggressively with their own solutions if the see Google getting slammed by UGCP members for its efforts. We seem to be creeping towards open solutions that will enable publishers to get around the copyright conundrum without huge proprietary investments but don't expect the pace to pick up until some publishers have proven how to do it cheap, simply and in a way that won't be irksome to the creative talents that are driving online content value.

Labels: Best Practices, copyright, Google, Social Media, YouTube

The Associated Press' position in the news world is in some ways stronger than ever, building on both traditional newspaper portals and the growth of online-only news venues such as Yahoo, Google and social news outlets. But it's also a challenge for AP and other wire services to define a path towards long-term growth as the variety of outlets that can generate and distribute news on the Web outside of their purview accelerates. An earlier lawsuit against Google for their use of news from AP on member sites yielded a settlement in AP's favor, so it's no surprise that AP is trying again with a new lawsuit against Moreover, Verisign's content mining service for media and enterprise clients.

In the AP statement on the suit AP notes that AP discovered the extent of Moreover's practices while negotiating with it to provide content management services to the AP's members. Oops. The main bone of content seems to be that, like Google, Moreover is fairly efficient at harvesting news from AP from member sites for its clients, claiming that headlines could be appearing in Moreover within two minutes of their hitting a news Web site. This hits a little too close to AP clients who want to be the source for breaking news headlines. Adding to AP's perceived pain is Moreover's revenues gained from ad-supported and subscription services, including what AP claims is Moreover's use of story texts and photos.

Cleverly the suit claims that Moreover's uses of headlines violate fair use laws by merely copying them instead of transforming them into a unique form and format. Given that fair use is used primarily for publications to use limited direct quotation of sources in news articles and other original works this seems like a stretch at best in relation to fair use law. By this definition any page of search results would be suspect, even though one could argue that each page of search results represents an original work of authorship through its organization of content into a unique compilation as proscribed under U.S. Copyright law. Search engine companies have been reluctant to test this concept in courts, however, as globally the interpretation could vary significantly. So this type of threat has been an effective tool for brining technology companies to the bargaining table for AP.

Although AP's suit covers no apparent new legal ground it's use as a negotiating tool targeting a content harvesting company is an important new wrinkle. Although Web mining technology is in many ways little different than search engine crawlers its use to build applications beyond mere search results means that more value-add applications based on these technologies are becoming targets for copyright enforcement. It opens up many questions for both Web miners and providers of mashups and embedded content services. Services such as Sphere, which serve up embedded link references through its own crawling services, have become very popular with publishers trying to provide value-add content links to their sites, and these could become potential targets for AP-like lawsuits as well. Notably AP is targeting relatively mature businesses but with its use of the Attributor content tracking technology any service could become a target potentially.

While AP may have some legitimate foundations to their concerns at the end of the day this is yet another company with distribution at the heart of their content business model struggling to understand how to position itself in a marketplace where distribution is in essence a free service. Like music publishing companies trying to position the value of their services for potential clients AP's aggressiveness in monitoring and pursuing potential copyright infringement provides them with a legal enforcement angle to their content licensing services that can help to justify premium prices for their services. But also like music publishers may come a point when the talent recognizes that they're pretty good at making money without distribution-oriented middle men.

But AP is far smarter than music publishers in pursuing licensing deals through their surveillance efforts with companies that are likely to be able to pay in proportion to the commercial value of their services. Notably Moreover was an early entrant into content harvesting so its relatively mature base of enterprise and media clients gives AP a reasonable target to pursue that's more likely to settle on commercial terms than to go to the mattresses to defend matters on principle alone. In this sense AP is approaching situations like the Moreover suit as a rather aggressive business development effort - one that's not likely to endear AP content to the burgeoning embedding industry but one that may have some commercial effect for now but which may erode interest in AP as a business partner over time. In the meantime the stage is still wide open for virtual aggregation services that manage copyright issues effectively for both enterprise and media services to keep suits like AP's from becoming licensing nightmares.

Labels: aggregation, AP, copyright, fair use, harvesting, legal, mining, Moreover, suit

These are not the salad days for many Digital Rights Management providers, with major music producers such as Universal eschewing proprietary copy protection in an effort to blunt efforts by Apple and others to control music distribution and pricing. But just because you are enabling open copying doesn't mean that you have to give up on copyright. PC World covers a new digital watermarking technology from Activated Content that enables music producers to track copying of music via standard audio file formats. The technology in Activated's watermarking algorithms is very powerful, but because it does not prevent access to the music itself there's very little motivation for the average music consumer to crack the code. This is very much along the lines of what we've been encouraging for some time, analogous in some ways to what Attributor is doing with hypertext-based digital content.

The key to success in digital content distribution in an era that values the context that content finds itself in as much as the content itself is to not use access control as a mechanism for copyright enforcement. For those such as movie producers who have not yet come up with effective contextual monetization models DRM will be with us for quite some time, though, as evidenced by the prevalence of Blu-ray format DVD discs driving HD video sales. When your focus is more on an uninterrupted performance with a high-level technology component DRM may still be able to carry the freight. But as contextual advertising makes its way into video distribution as well (pre-rolls as in move theatres today) we may begin to see some loosening of DRM for video also, especially as it will find itself competing more with increasingly ad-driven game content for audience attention. All content producers concerned about copyright in an era that increasingly values user-initiated content distribution need to consider how watermarking technologies may be able to help further revenue streams beyond their traditional models.

Labels: copyright, DRM, Trends, watermarking

CBC News reports along with many others on recent comments by Microsoft general counsel Thomas C. Rubin, an associate general counsel at the annual meeting of the Association of American Publishers in New York. Key quote: "Companies that create no content of their own, and make money solely on the backs of other people's content, are raking in billions through advertising revenue." This is, of course, just the kind of sabre rattling that the AAP membership wants to hear, so they got their money's worth from Microsoft's more publisher-friendly approach. Google seems to want to keep out of direct confrontation on this issue as much as possible: offered the chance to send a representative to this week's ASIDIC 2007 Spring Meeting to talk about how to position premium content in search engines Microsoft picked up the challenge to speak to this publisher-friendly audience but Google declined.

Rubin's "red meat" speech grabbed plenty of headlines but it did little to advance any new concepts in the debate as to how publishers should approach copyright in a search-oriented online distribution environment. As a major holder of copyrighted intellectual property themselves Microsoft gains strong allies with publishers at their side in arguing for upholding strong commitments to eliminating any threats to existing business models leveraging highly protected intellectual property.

While wanting to play to a partisan crowd is an understandable temptation the characterization of Google as the copyright bad guy is oversimplified. Google's real challenge to publishers is not around copyright, which it claims it protects carefully, but rather centered on U.S. fair use policies for copyrighted content. Google has been walking a line in exposing "snippets" of copyrighted content that they claim are in line with fair use doctrines in U.S. copyright law. Their aim, they say, is to protect the right of people to know what original works of authorship are available for their use, not to duplicate those works of authorship for consumption. Immense productivity gains - and significant increases in revenues going to many publishers - stem from search engines such as Google exposing copyrighted content via fair use guidelines.

By contrast Microsoft and other publishing partners have been hard at work developing technologies designed to protect copyrighted content without fair use capabilities built into their designs. The results so far are not working well, as admitted even by Microsoft Chairman Bill Gates. Typical DRM packages ignore fair use rights under copyright and hence circumvent the real purpose of copyright: to ensure that society is serviced by innovative ideas that will reward both those receiving those ideas and those creating those ideas.

As the U.S. Congress considers a bill introduced by representatives Rick Boucher (D-VA) and John Doolittle (R-CA) to make some nominal concessions in the Digital Millenium Copyright Act on copying content for personal, non-profit and journalistic uses there is a glimmer of hope that technologists will recognize the fundamental importance of fair use and move away from attempts to choke it off. All this can do is to stifle innovation - and hence create a less productive society that has fewer people able to afford proprietary intellectual property. Let's hope that Rubin's remarks are just the echoes of an outlook from a fear-based approach to new outlets for intellectual property and that innovators continue to respect both copyright and fair use as means to progress a profitable and effective publishing industry.

Labels: ASIDIC, copyright, fair use, Google, Legislation, Microsoft, Trends

Information World Review recaps the recently signed declaration of major scientific, technical and medical journal publishers regarding pending E.U. legislation pushing to move towards free and open access to scholarly research after a limited time of private publications. The "Brussels Declaration on STM Publishing" has been gaining signatories over the past few weeks from major publishing houses and academic institutions. The ten-point document is a carefully crafted list of statements that attempts to justify the value of current publishing models to the scholarly community and institutions consuming their research. The statements range from the relatively innocuous - "The mission of publishers is to maximise the dissemination of knowledge through economically self-sustaining business models" - to the provocative: "Open deposit of accepted manuscripts risks destabilising subscription revenues and undermining peer review."

In sum the intent of the declaration is to counter the movement towards government-mandated open access to papers deposited in publicly accessible online repositories. There are some compromises in the points designed to whittle away some who may be looking for ways to find some room for compromise - "Raw research data should be made freely available to all researchers" - but in sum the declaration is a statement that says, in effect, that scholarly publishers and the peer review process that supports their publishing processes work just fine and should not be challenged significantly. This is not unexpected, but it is disappointing nevertheless.

Scholarly publishers have recognized rightly that their trade is at a major crossroads given the pending E.U. legislation. Pushing forward with government-mandated open access without clear methods to support peer review processes required to generate that research may indeed pose a hazard to the integrity of academic research. But in truth this will be the case regardless of whether the E.U. open access initiative is passed or not. Existing publishing models for scholarly research may be sustainable indefinitely, but the open access movement has created already an important beachhead in the marketplace that questions not just the profit motive but the exiting peer review process. In essence the publishers are saying, "Let's keep our current inefficiencies because this is the only way that we can guarantee monies to sustain peer reviewing of papers." Yet as the demand for print journals diminishes and as more interactive peer review processes unfold through the open access initiative the necessity of high-priced journals pricing to maintain existing peer review methods is likely to be challenged strongly in the open marketplace.

Scholarly publishers are so tied to their existing revenue models that they fail to see even greater opportunities for profits in the processes that lead up to final publication. Although access to finalized juried publications is important, it's more important overall to researchers wishing to stay on the edge of important scholarly work to be a part of the discussions and modifications that lead up to the finalization of a paper. The peer review process as it exists today exposes new ideas to too narrow an audience for critique and enhancement prior to final publication. Instead of using today's print-based inefficiencies as the basis for journal pricing publishers should consider developing access to pre-publication materials through community-based online publishing as the basis for premium pricing. This will ensure better input from topic-oriented communities and relieve both publishers and governmental agencies from the need to focus on protecting copyright of finalized materials as the basis for scholarly publishing profits.

In an era in which Wikis, weblogs and other social media are demonstrating the ability of community publishing to be monetized effectively content producers of all kinds need to adjust to the idea that controlling copies of content is not as important as managing the communities that generate it and consume it. Copyright still has an important place in publishing but increasingly it will revert to a secondary role as licensing access to private communities whose communications are at least as valuable as finished works of authorship gains center stage. In the marketplace of ideas, people will gravitate towards being in on the key conversations far more than they will the minutes of those conversations. By focusing too intently on the threat to existing monetization models scholarly publishers are likely to be bypassed as other well-funded efforts move past the copyright model and towards more dynamic ways to generate value from scholarly publishing. The Brussels Declaration will to little if anything to change these realities.

Labels: Brussels Declaration, copyright, open access, scholarly publishing, Social Media, STM