What are the advantages and disadvantages of intellectual property in the digital age?
Intellectual property (IP) is an umbrella term that covers copyright, patents, trademarks, designs, circuit layout rights, plant breeders’ rights and confidentiality and trade secrets. Each of these terms covers a different type of property that is made up of knowledge. Many of these terms cover physical objects, however it is the idea behind them that counts and needs to be protected. The above terms are all for different types of intellectual property; patents are for products, trademarks are for works such as smells, logos and pictures. Design rights are for the shape of something. Copyright is for literacy, for example music, film, multimedia and computer programs. Circuit rights are for the way electronics are set out. Plant breeders’ rights are for new plants. In Australia for all of the above intellectual property terms, apart from copyright and circuit rights, you must apply for the licence and have it approved by the appropriate people and groups. The reasons these’s laws need to change is because people are stealing large amounts of IP in the form of music and movies, and the culture of the new generations has become one of internet surfing, peer to peer (p2p) downloading and hacking and because of that there are many advantages and disadvantages to intellectual property laws and how it is used in the digital age. All of this means that governments and interests groups are making lots of attempts to move intellectual property laws with the times. Some of these include The Australian Copyright Amendment (Digital Agenda) Act 2000 (Act No. 110 of 2000) and in the US The Digital Millennium Copyright Act Of 1998. Both of these have had some success in combating the illegal downloading and distributing of intellectual property. However, with the speed of the Internet age, it is almost impossible for the laws to keep up. On the Electronic Frontiers Foundation (EFF) website they say “IP serves important public purposes: encouraging creativity (copyrights) and innovation (patents and trade secrets) and protecting the public from being defrauded by misleading advertising (trademarks). At the same time, IP must be carefully limited to protect your rights to create, access, and distribute information, as well as to develop new ways to do so.” When the EFF mention ‘IP must be carefully limited to protect your rights to create, access and distribute information.’ They are talking about fair use which is a part inside the IP laws which allow normal everyday users to legally use/ distribute/ change are small part of someone else’s IP.
A big part of intellectual property is money. The original concept of intellectual property was that everyone who had played a part in creating something that is in the mind makes some sort of profit. Due to illegal file sharing the Motion Picture Association of America (MPAA) claims that $2.3 billion was lost in the US alone from pirates (1). However this maybe in part untrue because giving away intellectual property such as movies can sometimes mean more profit for the seller. For example peer to peer (p2p) file sharing protocols, such as Bit Torrent, offer movies at about a 320px X 240px size, which equates to around a 900mb file for a 2-hour video. This is nowhere near DVD quality (720px X 480px) and if someone really enjoyed the movie then they would be likely to go and buy it. The other example is music people may want to download an album from artist, to find out whether or not they want to buy the artists new album.
While Intellectual Property appears to be protecting the creators of the music, this is sometimes untrue due to the way the music industry works. Because of the popularity of music there are lots of small local bands that are formed. The recording industry has a lot of choice when it comes to choosing the band it signs, and the ones that they don’t. This means that bands get unfavourable contracts, which signs way most of their intellectual property rights and gives it to the recording company. According to Steve Albini, an independent and corporate rock producer from http://www.negativland.com/albini.html, a recording balance sheet for a band may look like this. (All below cost $US)(5)
Bands Initial Cost and Profits
Manager’s Cut -$37,500
Legal fees -$10,000
Recording Budget -$150,000
Producer’s advance -$50,000
Studio fee -$52,500
Drum Amp, Mic and Phase “Doctors” -$3,000
Recording Tape -$8,000
Equipment Rental -$5,000
Cartage and Transport -$5,000
Lodging while in studio -$10,000
Tape Copies, Reference CDs, shipping tapes, misc expenses -$2,000
Video Budget -$30,000
Processing and transfers -$3,000
On-line Editing -$3,000
Stage and Construction -$3,000
Copies, Couriers and Transportation -$2,000
Director’s Fee -$3,000
Album Artwork -$5,000
Promotional Photo Shoot and duplication -$2,000
Band Fund -$15,000
New Drum Kit -$5,000
New Guitars x2 -$3,000
New Guitar Amp Rig x2 -$4,000
New Bass Guitar -$1,000
New Bass Amp -$1,000
Rehearsal Space Rental -$500
Big Party for Friends -$500
Tour expenses (5 weeks) -$50,875
Crew x3 -$7,500
Consumable Supplies -$3,500
Tour Income +$50,000
Agent’s Cut -$7,500
Managers Cut -$7,500
Merchandising Advance +$20,000
Manager’s Cut -$3,000
Lawyer’s Fee -$1,000
Publishing Advance +$20,000
Manager’s Cut -$3,000
Lawyer’s Fee -$1,000
Bands Costs and Profit Once CD has Hit the Market
Record Sales (250,000 @ $12) $3,000,000
Retail Revenue Royalty (13% of 90% of the record sales +$351,000
Less Advance -$250,000
Producer’s Points (3% minus advance [$50,000]) -$40,000
Promotional Budget -$25,000
Buy out from small independent label the band started out with -$50,000
Total Band Royalty -$14,000
Record Company Income
Record Wholesale Price ($6.50 x 250,000) +$1,625,000
Artist Royalties -$351,000
Deficit from band Royalty -$14,000
Manufacturing, Packaging and Distribution ($2.20 x 250,000) -$550,000
Total Record Company Profit $710,000
The Final Balance Sheet
Record Company $710,000
Previous Label $50,000
Band Members $4,031.25
A common form currently of digitally protecting copyrighted material is called Digital Rights Management. Digital Rights Management (DRM) can be found all over the place. It is the thing that stops you playing music bought of the Bigpond Music Store on your Apple iPod. It is the thing that stops you ripping DVD’s. It’s also the thing that stops some CD’s being ripped (2). However the real problem with DRM is that if someone wants to get past it they can. Things like the Hymn Project break the DRM on iTunes music. The only people that the DRM really holds back are the normal every day consumers as anyone who really wants to listen to something or to share it over the Internet knows ways to do it.
Intellectual property also affects the person/persons holding the license because it means that things cannot be advertised as well. Many shows have been revived and have become popular due to illegal practices online. Battlestar Gallactica looked like it was going to be axed after one session but when was put on a Bit Torrent site, American Bit Torrent users got to watch it before it was broadcast in the US. It then became popular and when the Sci-Fi channel finally broadcast it lots of people were watching it, to either see a better version or because of the hype from other people who had already seen the show via Bit Torrent. Shows like Saturday Night Live, The Daily Show and The Colbert Report have all been helped by being distributed by You Tube and other video sharing sites in small skit segments. Once people have bits of the shows they are more likely to tune in for the full show. So while broadcasters miss out on some of the adverting because You Tube unloaders get rid of it. The broadcasters gain viewers later on and there for actually gain revenue from You Tube viewers. However, all of the videos have been taken down from sites like You Tube, by the broadcasters due to IP laws thus the broadcasters do not get to receive the benefits. Apart from the monetary benefits the IP licence holder is encouraged creatively.
Many people are sued by big groups like the MPAA and the Recording Industry Association of America (RIAA) for not following IP laws. This is not a very good thing because groups like the MPAA and the RIAA don’t really think about whom they sue. They use unfair claims and questionable legal tactics to sue anyone who they think may be infringing on copyright. This has included dead people, and 12-year-old kids. The point of IP laws are for the musicians and people making and writing the music to get money so they can be more creative. However, groups like the MPAA and the RIAA draw their revenue from the works of the artists and make their money from collecting money. When suing people they change the charge of the song from 70c (US) (cost on iTunes Music Store) to $750 (US) per song, which is 1070 times more, then the consumer would have bought it for (7). They also invade everyday people’s privacy with complicated End User License Agreements (EULAs), which most people click through. For example, Amazon has recently released a movie watching service called Unbox, which allows people in the US to download and watch movies. But to buy these movies must agree to a EULA, which allows Amazon to have software on your computer that monitors your every move, and report it to Amazon. Even by removing the Unbox software they will still be able to track you. If you remove the Unbox software all your movies are removed as well and there is no way, apart from re-purchasing them, to get them back. If you travel overseas from the US with your computer you also will not be able to watch the movie because of geographical restrictions in the EULA. On top of this Amazon have the rights to change any of these terms at any time, without your prior knowledge.
The way the Internet moves it is almost impossible for the law to change and evolve so that it works with the Internet, because law has a lot of due process and has to be approved by many people. This is very different to how the Internet works. A couple of people can change the way the file sharing world works. This has been recently highlighted by an announcement by the Pirates Bay Bit Torrent site (3) and subsequent interview on the Bitlord Show (4). They mention something that is ‘coming’ while there are no real details on what this could be. This again could change the p2p world forever, thus throwing the record and motion picture groups into even more chaos.
A solution was mentioned on a recent episode of Diggnations (6) Kevin Rose and Alex Albrecht, the hosts of the show, talked about how they downloaded a CD from a Bit Torrent and really enjoying the music. They then went to a concert of the band, and while they were there they gave $30 each to the band. This is a much better method as it means that the money goes directly to the artists instead of going through the middleman and the middleman taking some of the profit. I think this method is good to some extent it realises on trust and it means you can give as much or as less as you want for the music you listen to.
IP is a necessary part of the digital culture and digital creativity, however the way that we are currently going about enforcing it is wrong. This has something to do with the ever-changing atmosphere of the file-trading network, but also because people try to take advantage of the law. This issue is very complicated and any solution has to be flexible enough to cope with future technological advances.
Syverson, C., TWiM 55: Going by the Code (27th May 2007) [Podcast] ”. Pixel Corps. Available at <pixelcorps.com/> Podcast url <thisweekinmedia.libsyn.com/rss> accessed 29th June 2007
(2) Moose. (2005). OSX won’t recognise my music CD??????. Available: http://forums.mactalk.com.au/archive/index.php/t-5207.html. Last accessed 11th July 2007.
Wikipedia. (2007). Intellectual Property. Available: http://en.wikipedia.org/wiki/Intellectual_property. Last accessed 29th June 2007.
World Intellectual Property Organization. (). What is Intellectual Property?. Available: http://www.wipo.int/about-ip/en/. Last accessed 1st July 2007.
IPAustralia. (2006). What is Intellectual Property?. Available: http://www.ipaustralia.gov.au/ip/introduction.shtml. Last accessed 1 July 2007.
Jane Bingham (2007). Internet Freedon: Where is the limit?. Oxford: Harcourt Education. 4-5, 8-15, 50-53.
Steve Barrett, Chris Jenkins. (2003). Music Piracy War Unleashed on Web. The Australian. 22/10/2003
Ellen Whinnett. (2003). Music Copyright Battle. The Mercury. 19/5/2003
(1) Katie Cincotta. (2007). Going For a Song. Available: http://www.theage.com.au/articles/2007/07/11/1183833529685.html?page=fullpage#contentSwap2. Last accessed 12 July 2007.
IPAustralia. (2006). What is Intellectual Property? Copyright. Available: http://www.ipaustralia.gov.au/ip/copyright.shtml. Last accessed 12 July 2007.
IPAustralia. (2006). Business Stratergies International Protection. Available: http://www.ipaustralia.gov.au/strategies/international.shtml. Last accessed 12 July 2007.
7125ELEA argument United States District Court Southern District of New York. (2006). Electra Entertainment Group INC v. Denise Barker; Before HON. Kenneth M. Karas. Elektra v. Barker Oral Argument. 05 Civ. 7340 (KMK)
US Copyright Office Summary. (1998). The Digital Millennium Copyright Act of 1998. Copyright Office Summary. 2860 (112), 105-304.
Office of Legislative Drafting and Publishing, Attorney- General’s Department. (2007). Act No. 63 of 1968 as amended. Copyright Act 1968. 28 (63),
Office of Legislative Drafting and Publishing, Attorney- General’s Department. (2002). Act No. 110 of 200 as amended. Copyright Amendment (Digital Agenda) Act 2000. 110 (63),
The Internet Corporation for Assigned Name and Numbers. (2007). Intellectual Property. Available: http://gnso.icann.org/intellectual-property/. Last accessed 12 July 2007.
The Intellectual Property Constituency of the GNSO. (2005). IPC. Available: http://www.ipconstituency.org/. Last accessed 12 July 2007.
Gregory Heller on behalf of the Free Software Foundation. (2006). What is DRM?. Available: http://www.defectivebydesign.org/what_is_drm. Last accessed 12 July 2007.
Gregory Heller on behalf of the Free Software Foundation. (2006). About Defective By Design. Available: http://www.defectivebydesign.org/about. Last accessed 12 July 2007.
Electronic Frontier Foundation. (2007). Intellectual Property. Available: http://www.eff.org/IP/. Last accessed 12 July 2007.
Electronic Frontier Foundation. (2007). Deeplinks. Available: http://www.eff.org/deeplinks/archives/005352.php. Last accessed 12 July 2007.
Tony Smith. (2001). Uk Campaigners Call for Anti ‘anit-rip’ CD Day of Action. Available: http://www.theregister.co.uk/2001/10/04/uk_campaigners_call_for_anti/. Last accessed 12th July 2007.
Jiff. (2007). The Issue. Available: http://www.anti-dmca.org/. Last accessed 12th July 2007.
Michael Geist. (2007). 30 Days of DRM: 30 Things You Can Do. Available: http://www.michaelgeist.ca/index.php?option=com_content&task=view&id=1447&Itemid=125. Last accessed 12th July 2007.
Decland McCullagh. (2006). Congress Readies Broad New Digital Copyright Bill. Available: http://news.com.com/2100-1028_3-6064016.html?part=rss&tag=6064016&subj=news. Last accessed 12th July 2007.
Newsferatu. (2006). RIAA Sues Family Without A Computer. Available: http://knac.com/article.asp?ArticleID=4548. Last accessed 12th July 2007.
Jon Newton. (2005). To Fight RIAA Lawsuit Solicits Donations. Available: http://184.108.40.206/stories/5002/donations.html. Last accessed 12th July 2007.
Jon Leach Johansen. (2003). IP Justice Launched. Available: http://nanocr.eu/2003/02/25/ip-justice-launched/. Last accessed 12th July 2007.
Richard Koman. (2003). Robin Gross Seeks International IP Justice. Available: http://www.oreillynet.com/pub/a/policy/2003/02/20/robin.html. Last accessed 12th July 2007.
Jon Leach Johansen. (2007). Nanocr. Available: http://nanocr.eu/. Last accessed 12th July 2007.
Smaran. (2007). TPB: The MPAA are “rabid, obsessed lunatics”. Available: http://torrentfreak.com/tpb-the-mpaa-are-rabid-obsessed-lunatics/. Last accessed 12th July 2007.
Smaran. (2007). The Pirate Bay, Featured in Vanity Fair. Available: http://torrentfreak.com/the-pirate-bay-featured-in-vanity-fair/. Last accessed 12th July 2007.
Steven Daly. (2007). Pirates of the Multiplex. Available: http://www.vanityfair.com/ontheweb/features/2007/03/piratebay200703. Last accessed 12th July 2007.
(4) Bitlord. (2007). The Pirate Bay Interview. Available: http://www.bitlordshow.com/ep8.php. Last accessed 12th July 2007.
RIAA. (Unknown). For Students Doing Reports. Available: http://www.riaa.com/faq.php. Last accessed 12th July 2007.
Musicthing. (2007). FAQ. Available: http://www.musicthing.org/faq.htm. Last accessed 12th July 2007.
(7) Roy Rogers and Ray Beckerman. (2007). How the RIAA Litigation Process Works. Available: http://recordingindustryvspeople.blogspot.com/2007/01/how-riaa-litigation-process-works.html. Last accessed 12th July 2007.
BelYaun. (2007). A Fair(y) Use Tale. Available: http://www.youtube.com/watch?v=CJn_jC4FNDo. Last accessed 12th July 2007.
(5) Steve Albini. (Unknown). The Problem With Music. Available: http://www.negativland.com/albini.html. Last accessed 12th July 2007.
Cameron Parkins. (2007). Creative Commons. Available: http://creativecommons.org/. Last accessed 12th July 2007.
Jenny Toomey, Kristin Thomson, Michael Bracy, Justin Jouvenal, Jean Cook, Chhaya Kapadia. (2000). The Future of Music Manifesto. Available: http://www.futureofmusic.org/manifesto/. Last accessed 12th July 2007.
Jenny Toomey, Kristin Thomson, Michael Bracy, Justin Jouvenal, Jean Cook, Chhaya Kapadia. (2000). The Future of Music FAQ. Available: http://www.futureofmusic.org/about/faq.cfm. Last accessed 12th July 2007.
(3) bkp. (2007). Maybe. Available: http://thepiratebay.org/blog/63. Last accessed 12 July 2007.
(6) Kevin Rose and Alex Albrecht. (2007). Diggnations. Available: http://revision3.com/diggnation. Last accessed 12 July 2007.