From the Field and into the Maze

I have spent the first six months of 2015 travelling to London and conducting my fieldwork

London Calling...  I came, I interviewed, I left.  Image available by Karen Roe under CC BY 2.0

London Calling…
I came,
I interviewed,
I left.
Image available by Karen Roe under CC BY 2.0

which involved an exciting mixture of interviews and observations of the work of some creators’ organisations (COs). I conducted my first set of interviews with representatives from COs in the publishing industry: the Society of Authors, the Authors’ Licensing and Collecting Society and the Writers’ Guild of Great Britain. In April I then shifted my attention to the music industry and went on to interview representatives from PRS for Music, the British Academy of Songwriters, Composers and Authors, the PRS for Music Foundation (an independent charity committed to supporting new music talents) and the Musicians’ Union. I have conducted a total of 24 interviews amounting to nearly 30 hours of recorded conversation, which I am currently in the process of transcribing. I have also spent a couple of days with ALCS, PRS for Music and the Musicians’ Union which has enabled me to observe some of their day-to-day activities.

At the heart of my interviews were themes and questions aimed at understanding the work of creators’ organisations. I was interested in their role in applying the law -be it through the negotiation and application of collective bargaining agreements, through contract vetting, or through the establishment and maintenance of various licensing schemes as well as through copyright enforcement activities. I also wanted to understand their involvement in policy making and prompting change – through lobbying, campaigning and an active participation across various fora.

Beyond simply mapping the wide range of roles that these organisations assume and the services that they provide, I also explored how creators’ organisations have reacted to the way their industries have been and are continuously being transformed by the advancements in digital technologies. How has digital media challenged what creators’ organisations do? Has it made it easier or more difficult to represent creators’ interests? What have new business models meant for the balance of power in the music and publishing industries? How have these models changed contractual and industry practices, the value of copyright works and the way rights are being transacted?

Last but not least, it was my objective to not only explore the law in action but to also grasp and record the process behind the law in the making. To do this, I studied the various actors and their relationships to other industry bodies and to UK and EU policy makers. I took a closer look at the different fora in which they convene, the umbrella organisations through which they sometimes act and the considerations that underpin some of their actions.

@Edinburgh: not a field...but it will do for scenery Lovely image of Arthur's Seat available by David Monniaux under CC BY-SA 3.0

@Edinburgh: not a field…but it will do for scenery
Lovely image of Arthur’s Seat available by David Monniaux under CC BY-SA 3.0

Over the summer, I will complete the transcription of all my interview recordings with a contingency plan in place in case I need to follow-up with some interviewees to clarify any aspects of their accounts. At the same time, I am continuing to monitor relevant industry news updates, blogs, the organisations’ websites as well as social media for additional publicly available documents that may feed into, enrich or challenge my interview data.

Once I have completed these stages, I will finally leave the field behind and delve into the maze of coding and data analysis….

It is time... to take on the data! Image available by magnifulouschicken under CC BY-NC-ND 3.0

It is time…
to take on the data!
Image available by magnifulouschicken under CC BY-NC-ND 3.0

Do check back on the Copyright and Creators Blog as I will be offering updates and more substantive glimpses into some of my thematic findings as my work progresses. I will also dedicate a post on the lessons learned from the field which will almost certainly have a sequel looking at the lessons learned from data analysis.

Technological Tools in the Legal Context: A New Approach to Legislative Enforcement?

By Guest Blogger: Jesus Manuel Niebla Zatarain

In today’s digital society information technological tools play an increasingly major role in everyday life. By the end of 2013 as many as one fifth of the global population owned a PC and the number of people with access to the internet worldwide is rapidly approaching three billion.

The legal framework has been forced to adapt as society has increasingly been inclined to use technological implementations to perform acts that, in the past, had solely been carried out by humans. As the use of computers grew so both did the need for laws to govern these emerging uses and for technological devices that could allow the law to be enforced.

For creators, information technology has correspondingly become a key part of their business reality. Digital sales in books, music, and videogames have all outstripped their physical counterparts over recent years and around the world laws have been enacted and technical means attempted to help protect their creators legal rights. With these approaches struggling to have an impact, however, could information technology tools help creators in another way by allowing the law to develop a more effective approach?

Internet Backbone

The internet can be a beautiful thing … Image available under CC BY 2.5 by The Opte Project

The idea of using technological devices to improve the way in which law is implemented is not a new one: The field is called legal informatics and, as Erdelez and O’Hare explain, it draws upon an interdisciplinary approach:

“The American Library Association defines informatics as “the study of the structure and properties of information, as well as the application of technology to the organization, storage, retrieval, and dissemination of information.” Legal informatics therefore, pertains to the application of informatics within the context of the legal environment and as such involves law-related organizations (e.g., law offices, courts, and law schools) and users of information.”

As a branch of legal science problems are solved in legal informatics by the application of those legal criteria which are considered to be accepted, relevant and comprehensible by the legal community. Where legal informatics goes beyond traditional legal approaches and is through the use of electronic devices that it can address to problems that are unreachable through common legal standards.

In today’s world parliamentary legislation has increasingly become just one amongst many sources of legal regulation and has faced a number of criticisms as a potential source of protection. Legislation is static and slow to adapt in the face of a swiftly changing technical realities; national in the face of an increasingly global world; and is created by political bodies lacking the necessary technical, economical, and legal competence to address the increasingly complex problems that arise as a result of technology.

computer-problem-152211_1280

… but technology can sometimes cause problems. Image available in the public domain by OpenClips

Some scholars have however argued that information technology is not just a problem that legislators have to grapple with but can also be part of the solution. The fact that legislation needs to coexist with other sources of the law does not make it less important and less central, rather it is in these kinds of situations where the co-operation between law and technology can be exploited at the highest. Information technology tools could potentially help make the law more responsive by enabling legislation to anticipate technical development at a fundamental level and legislators to anticipate the results of potential changes in advance. Such tools can also improve the ability of non-experts (such as creators) to take advantage of the law by making legal information more accessible and enabling greater participation in the legislative process.

Such an approach is not without its challenges however. Legal informatics is a discipline which deals with the use of information technologies to process legal information and support legal activities: namely the creation, cognition and application of the law[1]. These are however activities which involve processes related to human reasoning such as decision taking, problem solving and learning. The use of information technologies in these contexts therefore requires the development of AI software that is capable of emulating features that are closely related to human intelligence in order to be able to solve problems and create logical replies – a challenge indeed!

Also, even if effective AI can be developed for these purposes it is worth mentioning that human operators would still be required to play a role in the enforcement and evaluation of the law. While information technology tools could improve the quality of the legal decision making their use will depend of their operator’s will to do so.

Overall, there are many possible implementations of informatics to the legal world which could potentially improve legislation such as copyright but there are still challenges that must first be overcome. Information technology tools could ensure that legislation and legislators are better equipped to cope with technological change whilst also making it easier for stakeholders such as creators to engage with the law more effectively. However their full and effective use is dependant upon the development of robust and flexible AI systems.Despite the challenges however it is clear that legal informatics offers the potential for interesting things in the future.

Back of(f) the net? FIFA, football, and online streaming

As many readers will undoubtedly be aware, the most expensive football World Cup to date kicked off recently in Brazil with thirty two teams competing over the course of a month for football’s biggest prize. Millions of fans are expected to travel around Brazil in pursuit of World Cup festivities while billions more around the world follow the matches live on TV. In today’s digitally connected world many of these fans will tune in online, leading to predictions that this year’s World Cup will set new online records for the streaming of content.

For such a huge (and financially lucrative) event the organisers FIFA understandably aim to ensure that fans stick to legal, licensed broadcast avenues. In an effort to achieve this online as well as off FIFA have reportedly sent letters to the owners of prominent streaming websites, warning them of the potential consequences of allowing their sites to be used for illegal match streams.

In their letters however FIFA not only ask site owners to do all that they can to remove copyright infringing content but also ask them to put in place pre-emptive measures during the World Cup to make sure that this can be done swiftly. Allegedly this includes demands that both sites have staff present during each and every World Cup game to take down material and that they provide FIFA’s own enforcement company with the tools to remove any infringing streams directly.

With online streaming presenting an ongoing problem for many football rights holders (and with streaming increasingly becoming an important source of revenue for many other content creators) it is worth exploring whether the copyright enforcement measures demanded by FIFA can in practice be enforced. Can creators and rights holders really demand that intermediaries grant them control over content and commit to take-down times in the minutes?

waterfall-284392_640

These aren’t the kinds of streams that FIFA is worried about… Image is in the public domain by mandy

As a starting point to any such discussion it is important to establish whether online streaming infringes upon copyright at all. Fortunately, the European courts have provided some guidance in this area. Copyright grants its holders a number of exclusive rights including, most notably for streaming purposes, the right to restrict communication to the public of the protected work. The European courts were invited last year to consider whether online streaming qualified as a ‘communication to the public’ for these purposes and, in their judgement, came to the conclusion that it did. As such streaming a work falls within the exclusive rights of the copyright holder.

In the UK implementation of this decision however there is an important caveat that may undermine its impact. Section 73 of the UK Copyright, Designs and Patents Act provides a defence against copyright infringement for those who re-transmit by cable the content of a wireless broadcast made by any of the listed ‘qualifying services’ (a list which includes, in particular, TV broadcasts by the BBC or channel 3 – the two channels who, unfortunately for FIFA, will be broadcasting the 2014 World Cup games in the UK). The UK courts in this case found that streaming websites are able to take advantage of this section when re-transmitting live TV over the internet, although only to the extent that they are streaming to users in the region to which the original broadcasts were made. As a result, demands that streaming sites remove these channels may face difficulties on this ground.

soccer ball

It looks like a lot of people will be spending the upcoming month watching these very closely… Image made availble under CC BY-SA 2.0 by Glenn Harper

Outside of this particular exception however rights holders generally will have the right to prevent streaming websites making their content available to the public without permission. Nonetheless, while rights holders would be within their rights to demand the removal of their content by site owners what is not clear is whether they can insist upon the level of co-operation and access that are being sought by FIFA in their World Cup letters.

That infringing content appears on streaming websites does not automatically mean that rights holders can require these sites to take any action that they desire to prevent or remove it. A series of previous European decisions, concerning the filtering of copyright infringing content, has established that courts must strike a balance when considering the appropriateness of copyright enforcement measures between the intellectual property rights of the copyright holders and the protection of competing fundamental rights for the businesses and individuals affected.

scales-of-justice

Image is in the public domain by Jon Sullivan

In particular the courts have noted the need to weigh effective enforcement against the right of the intermediary to conduct a business and against the freedom of information of internet users. Demands such as FIFA’s must therefore be considered in this context.

In FIFA’s favour fall arguments that events such as sporting matches are time-sensitive and, as a result, the value of enforcement diminishes significantly if it can’t be carried out before the event is over. If the removal of links is delayed until hours or days later the majority of the loss from this will have already been suffered by the rights holder.

On the other hand, however, the owners of streaming sites could argue that requiring take-down times measured in the minutes (as FIFA’s demands would appear to require) would create such a burden on their resources that their business would struggle to survive. FIFA’s alternative – that site owners allow enforcement companies to take down content directly – is arguably even worse, as it would give a third party substantial control over the content of the site and allow them to govern what information flows through it.

Finally, any balancing act would have to take into account the availability of alternative means of protection. A large number of sites have been blocked at an ISP level in the UK and the Premier League has already demonstrated that it is possible to get streaming websites blocked as well. It may therefore be hard to convince a court that the burdens of the suggested enforcement actions are necessary while working alternatives exist.

Overall therefore it would appear that, while creators may often have the right to have their unauthorised copyrighted content removed from streaming websites, any demands such as those made by FIFA would be subject to a balancing test by the court: A balancing test that, it could be argued, they would struggle to pass.