tag:theconversation.com,2011:/fr/topics/digital-rights-management-11865/articlesDigital rights management – The Conversation2022-11-29T19:10:32Ztag:theconversation.com,2011:article/1912632022-11-29T19:10:32Z2022-11-29T19:10:32ZAs more biometric data is collected in schools, parents need to ask these 10 questions<figure><img src="https://images.theconversation.com/files/497797/original/file-20221128-26-1ysvrd.jpg?ixlib=rb-1.1.0&rect=28%2C28%2C4805%2C2493&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>A Sydney high school recently introduced fingerprint technology to “<a href="https://www.abc.net.au/news/2022-09-06/moorebank-high-school-fingerprints-students-going-to-toilet/101410544">help narrow down</a>” students who were vandalising school toilets. </p>
<p>Under the plan, students needed to to scan their fingerprints to get access to the toilets or <a href="https://www.9news.com.au/national/moorebank-high-school-introduces-fingerprint-scanning-technology-to-stop-graffiti-and-anti-social-behaviour/e9fd3dc4-3420-4a58-a04d-e40f88c2f91d">pick-up a swipe card</a> if they opted out. </p>
<p>Some parents were supportive, but other parents and <a href="https://digitalrightswatch.org.au/2022/09/07/nswdet-letter-biometric-surveillance/">digital rights advocates</a> raised privacy and security concerns. The NSW Education Department <a href="https://www.news.com.au/lifestyle/parenting/school-life/sydney-high-school-backs-down-on-fingerprint-scanning-for-students-to-use-toilets/news-story/818cdce419c79fef50f6fbe9fe06da49">has since noted</a> the school is still considering how it will handle anti-social behaviour and the community will be “consulted”. </p>
<p>While the fingerprint plan appears to have stalled, it shows how easily biometric technology can be introduced into schools. </p>
<p>This debate may seem new to Australian parents but it is set to become an increasing issue, thanks to a rapidly growing education technology (“edtech”) sector. </p>
<p>How is biometric data being used in schools and what questions do parents need to ask? </p>
<h2>Biometric data in schools</h2>
<p>Biometrics measure a person’s unique physical or behavioural characteristics to identify them. This could be a fingerprint, face, iris, voice, or the way you walk, type, behave, or express an emotion.</p>
<p>Biometric technology was first introduced in schools in the United Kingdom around 2000. It has since become a <a href="https://defenddigitalme.org/research/state-biometrics-2022/">routine part</a> of school life. Fingerprints and facial recognition are used for things like the canteen payments, library borrowing, door access, photocopying, locker access, vending machines and laptop access.</p>
<figure class="align-center ">
<img alt="A student walks through library shelves." src="https://images.theconversation.com/files/497799/original/file-20221129-12-nq66tz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/497799/original/file-20221129-12-nq66tz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/497799/original/file-20221129-12-nq66tz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/497799/original/file-20221129-12-nq66tz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/497799/original/file-20221129-12-nq66tz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/497799/original/file-20221129-12-nq66tz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/497799/original/file-20221129-12-nq66tz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Biometric technology is used for regular school activities like borrowing books, buying canteen food and registering attendance.</span>
<span class="attribution"><span class="source">Redd F/ Unsplash</span></span>
</figcaption>
</figure>
<p>It is <a href="https://www.tandfonline.com/doi/full/10.1080/17439884.2020.168601">often argued</a> these technologies save money, time, are efficient and can respond to students’ individual needs.</p>
<p>In the United States, fingerprint technology was introduced in some schools around 2006. Schools also use palm scanning and facial recognition technology, although a small number of states have laws regulating the use of biometric technology in schools and Florida has banned it completely. </p>
<p>We don’t yet have a clear sense about the extent to which biometric data is collected in Australian schools. But in 2018 <a href="https://www.theage.com.au/national/victoria/minority-report-crackdown-on-facial-recognition-technology-in-schools-20181005-p5080p.html">concerns were raised</a> over trials of facial recognition technology to mark the roll in some Victorian schools. In 2015, parents <a href="https://www.adelaidenow.com.au/news/south-australia/east-para-primary-school-pupils-to-have-fingerprints-scanned-as-part-of-new-student-attendance-recordkeeping-program/news-story/6623d38216455a7d4db7482c8b695aad">raised privacy concerns</a> when a South Australian primary school asked students for a fingerprint to “register” for the day.</p>
<h2>Why is this a problem?</h2>
<p>The UK’s <a href="https://www.gov.uk/government/people/fraser-sampson">commissioner for biometric material</a> Fraser Sampson is calling for a <a href="https://defenddigitalme.org/research/state-biometrics-2022/#foreword">ban of biometrics in UK schools</a>. As he said in a report this year: </p>
<blockquote>
<p>Harm is already very real […] Further risks to the rights and freedoms, and full and free development of the child, may not be fully realised yet.</p>
</blockquote>
<p>This is similar to other calls in France and Sweden. We do not have enough independent research or a broad enough understanding of potential harms, which could range from privacy to security, identity theft, and infringements upon children’s rights and freedoms.</p>
<h2>The rise of edtechs</h2>
<p>Meanwhile, biometrics are part of a booming edtech sector, which is about using technology to improve teaching and learning outcomes. They can be used for school management as well as in the classroom. </p>
<p><a href="https://www.pwc.com.au/government/government-matters/education-tech-edtech-revolutionise-education-institutions.html">According to PwC</a>, edtech is the second largest startup community in Australia (behind financial technology) and has more than doubled since 2017. Globally it is estimated to be worth US$250 billion (A$376 billion). </p>
<p>But while edtech companies collect information about students, we still don’t have a good understanding of how this is then used. Or adequate regulations to protect this information. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/edtech-is-treating-students-like-products-heres-how-we-can-protect-childrens-digital-rights-184312">Edtech is treating students like products. Here's how we can protect children's digital rights</a>
</strong>
</em>
</p>
<hr>
<p>Earlier this year in New York, about 820,000 public school students had <a href="https://www.k12dive.com/news/data-breach-exposes-820k-new-york-city-students-information/621352/">personal information exposed</a> after a cyber attack on a company that provides software to track grades and attendance. </p>
<p>Biometric technology can easily be integrated into everyday edtech and school operations to manage things like <a href="https://link.springer.com/article/10.1007/s12008-021-00760-6">attendance, exams and how students learn</a>. </p>
<p>Reports by the UK <a href="https://digitalfuturescommission.org.uk/beneficial-uses-of-education-data/">Digital Futures Commission</a> highlight the intense pressures and uncertainties schools, students, and parents/caregivers face in a rapidly expanding edtech system. Many school community members <a href="https://digitalfuturescommission.org.uk/wp-content/uploads/2021/06/Governance-of-data-for-children-learning.pdf">struggle to make informed choices</a>. </p>
<h2>10 questions to ask about these issues</h2>
<p>Australia lags behind other countries in understanding the short and long-term repercussions of biometrics in schools. But we can catch up. </p>
<p>Going forward we need more community education about different biometric technologies and a public register, so there is transparency about where technologies are being used, introduced and refused. </p>
<p>Parents, teachers and school communities need to be better equipped to scrutinise the potential benefits and harms. In most cases this will also need technical, ethical, policy and legal expertise. </p>
<p>During a recent <a href="https://education-futures-studio.sydney.edu.au/2022/09/story-five/">workshop</a> between universities, industry and <a href="https://www.techforsocialgood.org/about">advocacy groups</a>, we developed information to help parents, schools and policymakers think about these issues and work together to discuss them. Next year we will release a resource for people to learn about edtech, register specific cases across schools, and critically evaluate technologies. </p>
<p>In the meantime, here are some basic questions parents can ask if a biometric technology is being used or proposed in their child’s school:</p>
<p><strong>1.</strong> exactly what information is being collected, when and why?</p>
<p><strong>2.</strong> how is the data being stored, processed, and analysed? </p>
<p><strong>3.</strong> who has access to the system and how will it be maintained over time?</p>
<p><strong>4.</strong> what data privacy and security provisions are in place? </p>
<p><strong>5.</strong> what happens if I/my child opts out? </p>
<p><strong>6.</strong> what implications are there for the time and expertise of teachers, and other school staff?</p>
<p><strong>7.</strong> is there enough independent evidence to support claims a new technology will improve learning or school operations? </p>
<p><strong>8.</strong> how will funding this technology impact other school budget and resourcing priorities?</p>
<p><strong>9.</strong> is there another way to address this issue, rather than using a biometric solution? </p>
<p><strong>10.</strong> has my school community had a meaningful opportunity to learn about and discuss this change?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-is-tech-giant-apple-trying-to-teach-our-teachers-186752">Why is tech giant Apple trying to teach our teachers?</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/191263/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kalervo Gulson receives funding from the Australian Research Council </span></em></p><p class="fine-print"><em><span>Terry Flew receives funding from the Australian Research Council and the Canadian Social Science and Humanities Research Council. </span></em></p><p class="fine-print"><em><span>Fiona Suwana and Teresa Swist do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Biometric data can be used in schools to track everything from attendance to exam behaviour and what students buy from the canteen.Teresa Swist, Researcher, University of SydneyFiona Suwana, Lecturer, University of SydneyKalervo Gulson, Professor and ARC Future Fellow, Education & Social Work, Education Futures Studio, University of SydneyTerry Flew, Professor of Digital Communications and Culture, The University of Sydney, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1940692022-11-14T19:00:23Z2022-11-14T19:00:23ZChokepoint Capitalism: why we’ll all lose unless we stop Amazon, Spotify and other platforms squeezing cash from creators<figure><img src="https://images.theconversation.com/files/494947/original/file-20221113-18-5ebjcc.png?ixlib=rb-1.1.0&rect=29%2C245%2C3580%2C1928&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In 2020, the independent authors and small publishers whose audiobooks reach their readers via Audible’s <a href="https://www.acx.com/">ACX platform</a> smelled a rat.</p>
<p>Audiobooks were booming, but sales of their own books – produced at great expense and well-reviewed – were plummeting. </p>
<p>Some of their royalty statements reported <em>negative</em> sales, as readers returned more books than they bought. This was hard to make sense of, because Audible only reported net sales, refusing to reveal the sales and refunds that made them up. </p>
<p>Perth-based writer <a href="https://www.susanmaywriter.net/single-post/audiblegate-the-incredible-story-of-missing-sales">Susan May</a> wondered whether those returns might be the reason for her dwindling net sales. She pressed Audible to tell her how many of her sales were being negated by returns, but the company stonewalled. </p>
<p>Then, in October 2020, a glitch caused three weeks of returns data to be reported in a single day, and authors discovered that hundreds (and even thousands) of their sales had been wiped out by returns. </p>
<p>Suddenly, the scam came into focus: the Amazon-owned Audible had been offering an extraordinarily generous returns policy, encouraging subscribers to return books they’d had on their devices for months, even if they had listened to them the whole way through, even if they had loved them – no questions asked. </p>
<p>Encouraged by the policy, some subscribers had been treating the service like a library – returning books for fresh credits they could swap for new ones. Few would have realised that Audible clawed back the royalties from the book’s authors every time a book was returned.</p>
<h2>Good for Amazon, bad for authors</h2>
<p>It was good for Amazon – it helped Audible gain and hold onto subscribers – but bad for the authors and the performers who created the audiobooks, who barely got paid.</p>
<p>Understanding Amazon’s motivation helps us understand a phenomenon we call <a href="https://scribepublications.com.au/books-authors/books/chokepoint-capitalism-9781761380075">chokepoint capitalism</a>, a modern plague on creative industries and many other industries too.</p>
<p>Orthodox economics tells us not to worry about corporations dominating markets because that will attract competitors, who will put things back in balance. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/five-ways-to-boost-australian-writers-earnings-110694">Five ways to boost Australian writers’ earnings</a>
</strong>
</em>
</p>
<hr>
<p>But many of today’s big corporations and billionaire investors have perfected ways to make those supposedly-temporary advantages permanent. </p>
<p>Warren Buffett salivates over businesses with “<a href="https://markets.businessinsider.com/news/stocks/warren-buffett-moat-etf-simple-explanation-for-how-he-invests-and-its-easy-to-replicate-2017-10-1005613232">wide, sustainable moats</a>”. Peter Thiel scoffs that “<a href="https://www.wsj.com/articles/peter-thiel-competition-is-for-losers-1410535536">competition is for losers</a>”. Business schools teach students ways to lock in customers and suppliers and eliminate competition, so they can shake down the people who make what they supply and buy what they sell.</p>
<h2>Locking in customers and creators</h2>
<p>Amazon is the poster child for chokepoint capitalism. It boasts of its “<a href="https://feedvisor.com/resources/amazon-trends/amazon-flywheel-explained/">flywheel</a>” – a self-described “<a href="https://fourweekmba.com/amazon-flywheel/">virtuous cycle</a>” where its lower cost leads to lower prices and a better customer experience, which leads to more traffic, which leads to more sellers, and a better selection – which further propels the flywheel. </p>
<hr>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=379&fit=crop&dpr=1 600w, https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=379&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=379&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=477&fit=crop&dpr=1 754w, https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=477&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/494907/original/file-20221111-21-lnbmh1.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=477&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<hr>
<p>But the way the cycle works isn’t virtuous – it’s vicious and anti-competitive. </p>
<p>Amazon openly admits to doing everything it can to lock in its customers. That’s why Audible encourages book returns: its generous offer only applies to ongoing subscribers. Audible wants the money from monthly subscribers and wants the fact that they are subscribed to prevent them from shopping elsewhere. </p>
<p>Paying the people who actually made the product it sells a fair share of earnings isn’t Amazon’s priority. Because Amazon founder Jeff Bezos’ famous maxim is “<a href="https://www.marketplacepulse.com/articles/the-cost-of-your-margin-is-my-opportunity">your margin is my opportunity</a>”, the executive who figured out how to make authors foot the bill for retaining subscribers probably got a bonus.</p>
<p>Another way Audible locks customers in is by ensuring the books it sells are protected by <a href="https://www.fortinet.com/resources/cyberglossary/digital-rights-management-drm">digital rights management</a> (DRM) which means they are encrypted, and can only be read by software with the decryption key.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-us-government-is-trying-to-stop-the-merger-of-two-of-the-worlds-biggest-publishers-but-will-it-help-authors-188364">The US government is trying to stop the merger of two of the world's biggest publishers – but will it help authors?</a>
</strong>
</em>
</p>
<hr>
<p>Amazon claims DRM stops listeners from stealing from creators by pirating their books. But tools to strip away those locks are freely available online, and it’s easy for readers who can’t or won’t pay for books to find illegal versions. </p>
<p>While DRM doesn’t prevent infringement, it <em>does</em> prevent competition. </p>
<p>Startups that want to challenge Audible’s dominance – including those that would pay fairly – have to persuade potential customers to give up their Audible titles or to inconveniently maintain separate libraries. </p>
<p>In this way, laws that were intended to protect against infringement of copyright have become tools to protect against infringement of corporate dominance. </p>
<p>Once customers are locked in, suppliers (authors and publishers) are locked in too. It’s incredibly difficult to reach audiobook buyers unless you’re on Audible. When the suppliers are locked in, they can be shaken down for an ever-greater share of what the buyers hand over.</p>
<hr>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=377&fit=crop&dpr=1 600w, https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=377&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=377&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=474&fit=crop&dpr=1 754w, https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=474&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/494908/original/file-20221111-16-pua9cp.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=474&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<hr>
<h2>How a few big buyers can control whole markets</h2>
<p>The problem isn’t with middlemen as such: book shops, record labels, book and music publishers, agents and myriad others provide valuable services that help keep creative wheels turning. </p>
<p>The problem arises when these middlemen grow powerful enough to bend markets into hourglass shapes, with audiences at one end, masses of creators at the other, and themselves operating as a chokepoint in the middle. </p>
<p>Since everyone has to go through them, they’re able to control the terms on which creative goods and services are exchanged - and extract more than their fair share of value.</p>
<p>The corporations who create these chokepoints are trying to “monopsonise” their markets. “Monopsony” isn’t a pretty word, but it’s one we are going to have to get familiar with to understand why so many of us are feeling squeezed. </p>
<p><a href="https://www.wallstreetmojo.com/monopoly">Monopoly</a> (or near-monopoly) is where there is only one big seller, leaving buyers with few other places to turn. <a href="https://www.wallstreetmojo.com/monopsony/">Monopsony</a> is where there is only one big buyer, leaving sellers with few other places to turn.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/theres-an-obvious-reason-wages-arent-growing-but-you-wont-hear-it-from-treasury-or-the-reserve-bank-122041">There's an obvious reason wages aren't growing, but you won't hear it from Treasury or the Reserve Bank</a>
</strong>
</em>
</p>
<hr>
<p>In our book, we quote William Deresiewicz, a former professor of English at Yale University, who points out in his book <a href="https://www.chicagoreview.org/william-deresiewicz-the-death-of-the-artist/">The Death of the Artist</a> that “if you can only sell your product to a single entity, it’s not your customer; it’s your boss”.</p>
<p>Increasingly, it is how the creative industries are structured. There’s Audible for audiobooks, Amazon for physical and digital versions, YouTube for video, Google and Facebook for online news advertising, the <a href="https://www.liveabout.com/big-three-record-labels-2460743">Big Three record labels</a> (who own the big three music publishers) for recorded music, <a href="https://pluralistic.net/2022/09/12/streaming-doesnt-pay/">Spotify</a> for streaming, Live Nation for live music and ticketing – and that’s just the start. </p>
<p>But as corporate concentration increases across the board, monopsony is becoming a problem for the rest of us. For a glimpse into what happens to labour markets when buyers become too powerful, just think about how monopsonistic supermarkets bully food manufacturers and farmers.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=966&fit=crop&dpr=1 600w, https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=966&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=966&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1214&fit=crop&dpr=1 754w, https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1214&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/494912/original/file-20221112-11-u879gw.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1214&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="https://scribepublications.com.au/books-authors/books/chokepoint-capitalism-9781761380075">Scribe Publications</a></span>
</figcaption>
</figure>
<h2>A fairer deal for consumers and creators</h2>
<p>The good news is that we don’t have to put up with it.</p>
<p><a href="https://scribepublications.com.au/books-authors/books/chokepoint-capitalism-9781761380075">Chokepoint Capitalism</a> isn’t one of those “Chapter 11 books” – ten chapters about how terrible everything is, plus a conclusion with some vague suggestions about what can be done. </p>
<p>The whole second half is devoted to detailed proposals for widening these chokepoints out – such as transparency rights, among others. </p>
<p>Audible’s sly trick only finally came to light because of the glitch that let authors see the scope of returns. </p>
<p>That glitch enabled writers, led by Susan May, to organise a campaign that eventually forced Audible to reform some of its more egregious practices. But we need more light in dark corners. </p>
<p>And we need reforms to contract law to level the playing field in negotiations, interoperability rights to prevent lock-in to platforms, copyrights being better secured to creators rather than publishers, and minimum wages for creative work. </p>
<p>These and the other things we suggest would do much to empower artists and get them paid. And they would provide inspiration for the increasing rest of us who are supplying our goods or our labour to increasingly powerful corporations that can’t seem to keep their hands out of our pockets.</p>
<hr>
<p><em>Chokepoint Capitalism: how big tech and big content captured creative labour markets, and how we’ll win them back is published on <a href="https://scribepublications.com.au/books-authors/books/chokepoint-capitalism-9781761380075">Tuesday November 15</a> by Scribe.</em></p><img src="https://counter.theconversation.com/content/194069/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Giblin receives funding from the Australian Research Council and state and territory libraries for the Author's Interest Project (authorsinterest.org), the eLending Project (elendingproject.org) and Untapped: the Australian Literary Heritage Project (untapped.org.au). She is a Fellow of the CREATe research centre at the University of Glasgow, and a member of the Author's Alliance and the Australian Digital Alliance. She has occasionally and intermittently used Audible's service since its inception (though has not been a subscriber for a very long time),buys goods and services from Amazon when she really has to, subscribes to Spotify (where she sometimes listens to music controlled by the Big Three record labels, and published by their Big Three music publisher subsidiaries), and sometimes watches videos on YouTube.</span></em></p><p class="fine-print"><em><span>Cory Doctorow is a consultant to the Electronic Frontier Foundation. He co-founded the UK Open Rights Group. He is a visiting professor of practice at the University of North Carolina's School of Library and Information Science. He is a dues-paying member of the Free Software Foundation and FSF Europe. His books and audiobooks are published by Random House, Macmillan, Beacon Press, McSweeney's, HarperCollins, Hachette, and many other publishers. These are for sale on Amazon, Excerpts of his work are for sale on Audible. He runs a personal ebook store (craphound.com/shop) that compete with Amazon and Audible for ebook and audiobook sales. One of his books was favorably reviewed and endorsed by Jeff Bezos.</span></em></p>Rebecca Giblin and Cory Doctorow’s new book reveals the tricks behind ‘Chokepoint Capitalism’ – how big corporations use low prices to lock in users and creators, while locking out real competition.Rebecca Giblin, ARC Future Fellow; Associate Professor; Director, Intellectual Property Research Institute of Australia, The University of MelbourneCory Doctorow, Visiting professor of computer science, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1033742018-09-19T14:35:45Z2018-09-19T14:35:45ZWhy tech giants have little to lose (and lots to win) from new EU copyright law<figure><img src="https://images.theconversation.com/files/237128/original/file-20180919-158243-roiwue.jpg?ixlib=rb-1.1.0&rect=6%2C3%2C2023%2C1180&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Copyright, and copyright laws, will not always match expectations.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/inkninja/8119702305">inkninja</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>The new European Union Copyright Directive, <a href="http://www.europarl.europa.eu/news/en/press-room/20180906IPR12103/parliament-adopts-its-position-on-digital-copyright-rules">passed recently by the European parliament</a> after a <a href="https://arstechnica.com/tech-policy/2018/09/european-parliament-approves-copyright-bill-slammed-by-digital-rights-groups/">vociferous campaign</a> both for and against, has been described by its advocates as Europe striking a blow against US tech giants in the battle for control of copyrighted content online. This is painted as a battle about who pays for creative works, culture, and the role and workings of a free press in a world where these “commodities” are exchanged freely on social media and other platforms controlled by giants such as Google and Facebook. </p>
<p>The sense of this battle is found in two articles from the text of the new directive. <a href="https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban">Article 11</a> introduces the “press publishers’ right”, also called the “link tax”. This permits publishing groups such as newspapers and other media to charge online content sharing service providers and platforms – most obviously, Google, Facebook and Twitter – a fee for a licence to link to their content. <a href="https://arstechnica.com/tech-policy/2018/09/an-eu-copyright-bill-could-force-youtube-style-filtering-across-the-web/">Article 13</a> makes online content sharing service providers responsible for the copyright content uploaded by users. Large platforms must implement filters to monitor copyright infringements and obtain licences from music, film and television rights-holders for the use of copyright content where it appears on their services – YouTube and Instagram, for example. This has led to claims that the directive would effectively ban memes, because automated checking of uploads would identify them only as copyright material, rather than allowable “fair use” or “parody”.</p>
<p>Unsurprisingly, publishers and copyright industries across Europe have saluted the new law as a great victory of European culture and free press against the greedy American titans. But it is not this simple. </p>
<h2>First-mover advantage</h2>
<p>When companies like Google and Facebook started their ascent as global players in the mid-2000s, they benefited from a generally favourable legislative framework, made of legislative vacuum and liberal legislation. Thanks to the flexible contours of the <a href="http://copyrightblog.kluweriplaw.com/2016/12/14/american-european-safe-harbours/">“safe harbour” provisions for internet hosting services</a> – which essentially immunises them from any liability for content uploaded by their users – YouTube rapidly became the main channel of distribution of music. Similarly, Facebook and Google News became major distributors of news (whether good, bad or “fake”). </p>
<p>The ascent of these companies was not without hurdles and challenges, including a chequered history of lawsuits from music, film and television companies against content-sharing platforms, and by press publishers <a href="https://cmds.ceu.edu/article/2018-07-03/news-aggregation-and-reform-eu-copyright-law">against news aggregators</a>, which eventually changed the legal contours of the hosting providers’ <a href="http://copyrightblog.kluweriplaw.com/2012/01/31/passive-vs-active-hosting/">safe harbour in the European Union</a>. As a result of these legal disputes, the tech firms have progressively adapted their business models from head-on challenge of copyright norms to adopting a more accommodating attitude towards copyright holders and press publishers. </p>
<p>Google, for example, has entered into various commercial agreements with news agencies and publishers to display content in <a href="https://www.nytimes.com/2013/02/18/technology/a-first-step-on-continent-for-google-on-use-of-content.html">Google News</a> and <a href="https://www.nytimes.com/2010/11/18/business/global/18book.html?_r=1">Google Books</a>. YouTube, a Google subsidiary, has <a href="http://copyrightblog.kluweriplaw.com/2013/04/16/france-youtube-universal-and-sacem-enter-into-a-new-agreement/">entered into revenue-sharing agreements with copyright holders</a> based on a technology called <a href="https://support.google.com/youtube/answer/2797370?hl=en-GB">Content ID</a> that detects, identifies and manages copyright-protected music and video uploaded by users. Facebook has struck similar deals <a href="https://www.theverge.com/2018/3/9/17100454/facebook-warner-music-deal-songs-user-videos-instagram">with major music labels</a> and has a partnership programme <a href="https://www.facebook.com/careers/life/getting-the-scoop-on-the-news-partnerships-team-at-facebook">with news publishers</a>. A large amount of the content we consume today through these platforms is authorised by the copyright owners and generates some revenue for them.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=354&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=354&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=354&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=445&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=445&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=445&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">It’s a bit more complicated than that.</span>
<span class="attribution"><span class="source">Reddit</span></span>
</figcaption>
</figure>
<h2>A hammer to crack a nut</h2>
<p>So in this respect, what the new EU Copyright Directive now obliges the tech giants to do is largely what they do already. To be sure, it is an open question whether they pay enough for the privilege of making use of (and profiting from) all that content created by others. Admittedly, by obliging tech giants to pay press publishers and to obtain licences with copyright holders, the new directive may reduce their bargaining power with respect to the arrangements they must make with content creators, and therefore lead the copyright holders to increase their revenue share. This small (and largely uncertain) effect has some important consequences.</p>
<p>Take the directive’s article 13, which redefines the safe harbour for content-sharing providers. In effect, platforms like YouTube will be directly responsible for copyright content uploaded by their users (although they will continue to be shielded from direct liability for other wrongs committed by their users, such as defamation or hate speech). If this norm was in place ten or 15 years ago it would have prevented YouTube from becoming what it is today. </p>
<p>But now it is only good news for YouTube. The new directive will have little effect on its current business model (perhaps paying only a little more for contracts with copyright owners), but it will prevent others from challenging established firms’ dominant positions. Costs that for platforms like YouTube or Instagram today represent a small and ultimately insignificant portion of their profits are huge and <a href="https://promarket.org/digital-economy-much-less-competitive-think/">potentially insurmountable barriers for new companies</a> attempting to enter the market.</p>
<p>Only micro or small enterprises and non-commercial platforms – which are excluded from the effects of article 13 – will benefit from the same favourable legislative conditions that Facebook and Google experienced at the beginning of their career. But even these, as soon as they become more than start-ups, will have to operate in the same playing field as established giants – leaving them with no serious prospect of winning a substantial market share, challenging their dominance, or providing an outlet for innovation.</p>
<p>Quite the opposite from what was the intention, the Copyright Directive may ensure the current crop of tech giants retain their dominant position for a long time, possibly forever. Which one could say is not exactly bad news for them, and not exactly a victory for European creativity either.</p><img src="https://counter.theconversation.com/content/103374/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maurizio Borghi is Director of the Centre for Intellectual Property Policy & Management of Bournemouth University. The Centre receives external funding from the Research Council UK, the UK Intellectual Property Office, the European Commission and the European Union Intellectual Property Office. In 2014 Maurizio Borghi has received the Google Faculty Research Award.</span></em></p>In an example of the law of unintended consequences, the Copyright Directive is likely to cement the US tech giants’ grip, rather than provide space for others to grow.Maurizio Borghi, Professor of Law, Bournemouth UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/508332016-02-01T11:08:14Z2016-02-01T11:08:14ZNetflix’s VPN ban cannot cure TV studios’ chronic headaches<figure><img src="https://images.theconversation.com/files/110058/original/image-20160202-6959-18sa6v7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It's time to rethink content distribution. </span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/hackingnetflix/2917850847/in/photolist-5rQKpe-8WmyQW-6Hw5rf-6Hw1po-BymrSb-9ihTfE-uqvAhB-kHDfX-GvGt4-dqqKVM-24m3oZ-hso5f-3eaSpJ-6YJhDH-5UsZgf-6HvXK3-4CGm3s-6HvZCE-pY4mm1-rRvohY-4MuUCR-6dfH1v-a1WxHN-6HvFws-pY4kWU-54d4P8-97zC3Q-dd9WN5-hsiD4-7tXu7L-CKo1kq-7vRVVJ-hso5g-7ztKW9-7w4etY-4MRr1-E3wTU-7TABZG-2gF567-6gz5h-eA5nMs-8ZEzKY-4VvQgm-4VvQ4E-4VrBpD-enTcF-nmTGcA-9GTy3n-4c2ZsU-A8jFhN">Mike K/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>In mid-January, Netflix announced a <a href="http://www.wired.com/2016/01/netflix-will-block-vpns-for-now-but-its-real-goal-is-global-tv/">ban</a> on the use of proxies, unblockers and virtual private networks (VPNs) – all technical work-arounds to view movies and TV programs unavailable in the subscriber’s country. This announcement coincided with the company’s global service <a href="https://media.netflix.com/en/press-releases/netflix-is-now-available-around-the-world">launch</a> into more than 130 new markets.</p>
<p>With the new ban in place, Australian subscribers will no longer be able to watch U.S. shows until they become available Down Under. Likewise, U.S. subscribers who are addicted to British shows will have to wait for those shows to come stateside.</p>
<p>The content providers’ <a href="http://www.cnet.com/news/why-you-cant-have-everything-the-netflix-licensing-dilemma/">desire</a> for this ban is easy to understand. If Australian fans have already watched a U.S. show via Netflix, who will tune in when the show finally arrives in Australia?</p>
<p>Thus far, movie studios and TV producers have repeatedly <a href="http://www.pcworld.com/article/2685611/major-studios-pressure-netflix-to-block-vpn-access.html">criticized</a> Netflix for turning a blind eye to unlicensed viewing. Had the company continued to ignore geographical licensing restrictions, some of these providers might have eventually pulled their content from the service.</p>
<p>Nevertheless, the recently announced ban is unlikely to provide a long-term cure to the content providers’ chronic headaches. The problem lies not with Netflix, but with the unmet consumer demand in foreign markets. If we are to successfully address this problem, more comprehensive copyright reform will be needed.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/109547/original/image-20160128-27130-lmb86j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/109547/original/image-20160128-27130-lmb86j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=305&fit=crop&dpr=1 600w, https://images.theconversation.com/files/109547/original/image-20160128-27130-lmb86j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=305&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/109547/original/image-20160128-27130-lmb86j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=305&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/109547/original/image-20160128-27130-lmb86j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=383&fit=crop&dpr=1 754w, https://images.theconversation.com/files/109547/original/image-20160128-27130-lmb86j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=383&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/109547/original/image-20160128-27130-lmb86j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=383&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Streaming to the world: Netflix launched service almost worldwide in January 2016. (Countries colored red are served by Netflix; black are not.)</span>
<span class="attribution"><span class="source">NordNordWest/Wikimedia Commons</span></span>
</figcaption>
</figure>
<h2>The benefits of geographical restrictions</h2>
<p>Using geographical restrictions to protect entertainment products is nothing new. DVD <a href="http://hometheater.about.com/cs/dvdlaserdisc/a/aaregioncodesa.htm">region codes</a> provide the most recognizable example. The U.S. is Region 1 for standard DVDs and Region A for Blu-ray DVDs.</p>
<p>These region codes are deployed to support releasing movies or TV programs – and later DVDs – in geographic sequences. There are at least three reasons.</p>
<p>First, actors, directors and producers cannot promote entertainment projects around the world at the same time. To ensure optimal marketing, the release of movies and TV programs may have to be staggered geographically.</p>
<p>Second, producers may select different release times to maximize viewership. For example, a movie that is released in the U.S. around Thanksgiving may perform much better at the box office if it is released around Christmas in other parts of the world.</p>
<p>Third, interest in foreign markets may grow considerably after a movie or TV program has succeeded in the local market. In the U.S., TV stations often import foreign programs after they have been well received abroad.</p>
<h2>The Internet as a paradigm shift</h2>
<p>As far as the Internet is concerned, digital piracy is the most widely discussed issue among movie studios and TV producers. To <a href="http://www.theguardian.com/technology/2012/nov/26/films-tvs-global-piracy">minimize</a> damage, many have begun releasing material worldwide on the same day.</p>
<p>Such simultaneous release also helps preserve viewers’ entertainment experience. Photos, spoilers and reviews will inevitably appear on websites and social media after the material has been shown anywhere in the world.</p>
<p>In addition, consumer expectations have dramatically changed in the Internet age. No longer content to patiently wait for movies and TV programs to arrive in their country, many people now expect immediate worldwide access.</p>
<p>To complicate matters, many entertainment products are now consumed online, and movies and TV programs are viewed outside the times designated by studios and producers. As a result, traditional release windows have become less significant.</p>
<h2>Netflix versus content providers</h2>
<p>In the coming weeks, movie studios and TV producers will certainly welcome Netflix’s VPN ban. In the long run, however, it is unclear how much this ban will benefit them.</p>
<p>To some extent, Netflix’s problem reminds us of the early days of Napster, when consumers were eager to listen to music online but could not find legitimate access. That a large number of Netflix subscribers are now viewing movies and TV shows before they become locally available suggests very strong <a href="http://www.wired.com/2016/01/netflixs-vpn-ban-isnt-good-for-anyone-especially-netflix/">demand</a> in foreign markets.</p>
<p>If this demand continues and Netflix can no longer meet it, consumers will look elsewhere, and may end up in places that the content providers like even less. Netflix is a legitimate company that is willing to work with these providers, but many illegal streaming services do exist.</p>
<p>Moreover, Netflix is not only a content distributor, but also a <a href="http://www.nytimes.com/2016/01/14/technology/why-media-titans-need-to-worry-about-netflix.html?_r=0">content provider</a>. By making it difficult for subscribers to view unlicensed foreign movies and TV programs, the ban will help drive consumption to the company’s own productions, such as “House of Cards” and “Orange Is the New Black.”</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/109744/original/image-20160131-3883-ytonvq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/109744/original/image-20160131-3883-ytonvq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/109744/original/image-20160131-3883-ytonvq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/109744/original/image-20160131-3883-ytonvq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/109744/original/image-20160131-3883-ytonvq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/109744/original/image-20160131-3883-ytonvq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/109744/original/image-20160131-3883-ytonvq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Netflix is becoming a major content provider, with shows such as ‘House of Cards.’</span>
<span class="attribution"><span class="source">Flickr</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The new policy therefore could make Netflix more competitive vis-à-vis other content providers, even though such growing strength in content production could eventually discourage these providers from streaming material via the service.</p>
<p>Finally, there are questions about whether technologically savvy subscribers will be able to <a href="https://torrentfreak.com/netflix-announces-crackdown-on-vpn-and-proxy-pirates-160114/">circumvent</a> the ban, just like how they now use VPNs to provide technical work-arounds. Also worth exploring is the ban’s potential adverse impact on those subscribers who need proxies for privacy, security or other <a href="http://arstechnica.com/business/2016/01/netflix-cracks-down-on-customers-using-vpns-proxies-and-unblockers/">legitimate reasons</a>.</p>
<h2>The need for global content distribution</h2>
<p>Given the mixed results of Netflix’s ban, it is time we developed new laws and initiatives to facilitate global content distribution. In the past few years, some countries and international organizations have already been moving in this promising direction.</p>
<p>For instance, the EU is now considering a new <a href="http://europa.eu/rapid/press-release_IP-15-6261_en.htm">regulation</a> on the cross-border portability of online content services, which will allow lawfully purchased materials to be freely accessible throughout the 28 EU countries. This proposed regulation calls into question the appropriateness of tethering copyright protection to national laws.</p>
<p>A few years ago, the director general of the World Intellectual Property Organization also <a href="http://www.ip-watch.org/2014/06/06/wipo-chief-calls-for-seamless-global-legal-digital-content-regime/">noted</a> the need for developing “a seamless global legal digital marketplace.” Although this marketplace has yet to exist, his suggestion underscores the importance of comprehensive global copyright reform.</p>
<p>Obviously, these laws and initiatives are only the beginning. Many of them will remain needed even if Netflix can successfully ban the use of proxies to view unlicensed material. After all, it is neither wise nor easy to fight with those who are eager to consume but have no legitimate access.</p><img src="https://counter.theconversation.com/content/50833/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter K. Yu does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Netflix’s recent ban on proxies, unblockers and virtual private networks (VPNs) is unlikely to provide a long-term cure to content providers’ chronic headaches.Peter K. Yu, Professor of Law and Co-Director of the Center for Law and Intellectual Property, Texas A&M UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/488482015-10-21T03:27:53Z2015-10-21T03:27:53ZThe pitfalls of enforcing copyright protection in the digital age<figure><img src="https://images.theconversation.com/files/99000/original/image-20151020-32258-spl77c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Amazon caused a stir when it unilaterally removed George Orwell's classic novel 1984 from Kindle e-readers in 2009. </span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In mid-July 2009, in a <a href="http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html">twist of irony</a>, online retailer <a href="http://www.reuters.com/finance/stocks/companyProfile?symbol=AMZN.O">Amazon</a> unilaterally removed digital copies of George Orwell’s classic novel 1984 from a number of Kindle e-readers. Customers were outraged.</p>
<p>If it wasn’t for the fact that it really happened, it would surely be a fitting allegory for the pervasive influence of modern technology and how easily it allows for tampering in our lives.</p>
<p>This incident is a cautionary tale against the use of unfettered and, at times, unwarranted copyright protection. It is important in South Africa given the proposed amendments to the Copyright Act to, among other goals, beef up copyright protection in the digital age.</p>
<p>In principle it is justifiable to protect and grant a holder of copyright the exclusive right to profit from the fruit of their original labour. This is the basis of intellectual property rights.</p>
<p>But the drastic steps taken by Amazon against innocent purchasers of Orwell’s novel are likely not justifiable. The incident occurred because the company that added the digital copies of the book to the Kindle store did not have the rights to the book. So, to ensure that Amazon wasn’t a party to the infringement of the copyright to Orwell’s novel, the company stopped selling the e-book. </p>
<p>Amazon was able to accomplish this because it incorporated technology into its e-readers that allowed it to privately enforce its user agreements and the copyright licenses of others. This technology is commonly referred to as Digital Rights Management (DRM). </p>
<h2>What is digital rights management?</h2>
<p>The evolution of DRM technology has played a significant role in the enforcement of intellectual property rights in the digital age. It refers to a mixture of technical and legal protection <a href="http://ejlt.org/article/view/22/50">measures</a>. It is commonly applied to digital copyright, which is designed to control and regulate digital content.</p>
<p>Traditionally, DRM technology was simply used to regulate the use of content subject to intellectual property rights protection. The newer and more problematic forms now seek to control access to the content.</p>
<p>The proliferation of DRM technology is largely due to <a href="http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=295166#P87_12240">Article 11</a> of the <a href="http://www.wipo.int">WIPO</a> Copyright Treaty. This provides for countries to develop protection for and remedies related to the circumvention of so-called technical protection measures used by rights-holders in connection to the exercise of their copyright. Among others, this forms the basis for the <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML">European Information Society Directive</a> and the somewhat infamous <a href="https://www.congress.gov/bill/105th-congress/house-bill/2281">Digital Millennium Copyright Act</a> in the US. </p>
<p>South Africa has signed the copyright treaty but it has not yet been adopted into law. The draft <a href="http://www.gov.za/documents/copyright-amendment-bill-comments-invited-27-jul-2015-0000">Copyright Amendment Bill</a> seeks to do so, although some of the proposed aspects are <a href="http://blogs.sun.ac.za/iplaw/2015/08/24/unscrambling-the-curates-egg-full-review-of-the-copyright-amendment-bill/">problematic</a>.</p>
<p>The DRM is getting more complex and draconian, given the ease with which copyright may be infringed over the internet and the multiplier effect this may have with regard to a loss of royalties or other income. Some of its staunchest critics, such as the <a href="https://www.eff.org/node/56084">Electronic Frontier Foundation</a>, point out that DRM technology exceeds the scope of mere intellectual property protection. They allege it crosses a line where it clashes with established principles in the field of intellectual property law.</p>
<h2>Fair use and exceptions</h2>
<p>From an intellectual property law point of view, DRM has been criticised as potentially undermining traditional exceptions with regard to intellectual property, such as the principle of <a href="http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/">fair use</a> and the <a href="https://freedom-to-tinker.com/blog/abridy/digital-death-copyrights-first-sale-doctrine/">doctrine of first sale</a>. </p>
<p>Fair use, which is not currently recognised in South Africa but which the draft Copyright Amendment Act seeks to introduce, aims to balance the rights of copyright holders vis-à-vis the rights of the legitimate users of such copyright. In terms of the <a href="http://www.wipo.int/treaties/en/text.jsp?file_id=283698">Berne Convention</a>, copyright is fairly used if:</p>
<ol>
<li><p>It is done for a specific, recognised purpose;</p></li>
<li><p>It does not conflict with the copyright holder’s normal rights; and</p></li>
<li><p>It does not unreasonably prejudice the legitimate interests of the copyright holder.</p></li>
</ol>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/98999/original/image-20151020-32235-12gt607.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Digital rights management technology is good, but can also be abused.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>By controlling access and restricting use, DRM potentially prevents this. It has already led to situations where certain legitimate users’ access rights have been <a href="http://www.plannedobsolescence.net/fair-use/">rendered obsolete</a>. The opinion is slowly changing on whether this is acceptable. The European Court of Justice recently <a href="http://curia.europa.eu/juris/document/document.jsf?docid=124564&doclang=EN">ruled</a> that a copyright holder of software cannot oppose the resale of “used” licences, even in the case where the software was downloaded from the internet.</p>
<p>From a competition law point of view, it has been shown that DRM technology can be misused to try and exclude competitors, enforce distribution agreements, and engage in <a href="http://www.serci.org/2005/liebowitz.pdf">price discrimination</a> between different consumer and geographic markets. This is not only in relation to how retailers may deal with digital goods, but also to private consumers after the fact. </p>
<p>There have been <a href="http://www.arl.org/focus-areas/court-cases/2465-lexmark-v-static-control-component-and-chamberlain-group-inc-v-skylink-technologies-inc-#.VhY69PnzqUl">cases</a> where it was stated that in instances where technology is used to frustrate competition rather than protect intellectual property, this will not be allowed.</p>
<h2>The challenge for South Africa</h2>
<p>Currently the legal status of DRM in South Africa is unclear. Some have argued that protection for it is provided for through the cybercrime provisions of the <a href="http://www.saflii.org/za/legis/consol_act/ecata2002427/">Electronic Communications and Transactions Act</a>, which attempts to overcome security measures protecting data illegal.</p>
<p>But the same provisions outlaws interference with data. Given the provisions of the Consumer Protection Act and that these agreements are rarely read by users who have no choice but to agree to them, the solution may not be so <a href="http://www.speculumjuris.co.za/files/pdf/P_Koornhof_SJ_20122_1.pdf">simple</a>.</p>
<p>Most forms of DRM are lawful in South Africa. And the technology itself, while controversial, has a place in copyright enforcement. </p>
<p>But unfettered protection is not warranted, and the South African legislature should take care when implementing the proposed amendments.</p><img src="https://counter.theconversation.com/content/48848/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Pieter GJ Koornhof does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Enforcing copyright protection in the digital age has become complex. South Africa should tread carefully as it amends its copyright laws.Pieter GJ Koornhof, Lecturer in the Department of Mercantile and Labour Law, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/302152014-08-11T20:24:50Z2014-08-11T20:24:50ZDigital copyright protection – some success, but mostly failure<figure><img src="https://images.theconversation.com/files/56118/original/h5d8ryhg-1407723398.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The advent of digital music caused a few headaches, but digital copyright issues go back further than that.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/ishinelike/3374063625/sizes/z/">~lauren/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>There’s been a bit of talk recently about getting internet service providers (ISPs) involved in the enforcement of copyright law. The federal Attorney-General and Minister for Communications recently released an <a href="http://www.ag.gov.au/Consultations/Pages/Onlinecopyrightinfringementpublicconsultation.aspx">Online Copyright Infringement Discussion Paper</a> in the belief that:</p>
<blockquote>
<p>even where an ISP does not have a direct power to prevent a person from doing a particular infringing act, there still may be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement.</p>
</blockquote>
<p>Exactly what might be “reasonable steps” and how they might be funded are among the subjects up for discussion. Critics fear that it means turning ISPs into <a href="http://theconversation.com/trade-pact-would-make-internet-services-more-expensive-20441">copyright police</a>. </p>
<p>Before evaluating any new steps, it’s worth recalling digital copyright measures that have been implemented before – to see what worked, and what didn’t.</p>
<h2>Copy protection</h2>
<p>Software makers struggled with illegal copying of software long before the media industry came up against the internet. Beginning in the 1980s, software makers developed a variety of schemes seeking to prevent people from making copies of software without paying the original software maker.</p>
<p>By the 1990s, digital audio technology had progressed such that listeners were able to make high-quality copies of music. Like the software industry before it, the music industry turned to technology that sought to prevent CDs being used with copying devices. </p>
<p>Since CDs were not originally designed to prevent copying, most schemes violated the original CD specification in some way. This meant that copy-protected CDs could be unreliable and even damaging. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/56119/original/jfn8987t-1407723541.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/56119/original/jfn8987t-1407723541.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/56119/original/jfn8987t-1407723541.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=396&fit=crop&dpr=1 600w, https://images.theconversation.com/files/56119/original/jfn8987t-1407723541.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=396&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/56119/original/jfn8987t-1407723541.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=396&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/56119/original/jfn8987t-1407723541.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/56119/original/jfn8987t-1407723541.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/56119/original/jfn8987t-1407723541.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/chavals/2278542944/">Chaval Brasil/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>In the most infamous case, Sony’s <a href="http://www.indicare.org/tiki-read_article.php?articleId=155">Extended Copy Protection system</a> was found to install a “rootkit” – a hidden piece of software usually associated with viruses – on computers.</p>
<h2>Digital watermarking</h2>
<p>A digital watermark is a signal inserted into a media file that cannot be heard or seen by humans, but can be recovered by a computer. </p>
<p>Watermarks were supposed to prevent or deter copyright infringement in various ways, but the nearest they came to commercial implementation was through the Secure Digital Music Initiative (<a href="http://web.archive.org/web/20050504104016/http://www.sdmi.org">SDMI</a>). </p>
<p>SDMI went on hiatus in 2001, citing a lack of agreement on the suitability of the available technologies. Watermarking technology probably just didn’t work well enough: watermarks were either too easy to remove, or too audible to listeners.</p>
<h2>Digital rights management</h2>
<p>Digital rights management (DRM) schemes allow sellers of media files to associate those files with a licence, which sets out what the buyer can and can’t do with their purchases. In principle, DRM schemes have several advantages over simply dictating to users that they shall not make copies:</p>
<ol>
<li>sellers can implement business models that aren’t based on the old sell-one-copy model. It is possible to write licences that support subscription models, freemium models, viral models and others</li>
<li>licences can permit certain legitimate uses of copying, such as copying a file from a media collection to a portable player</li>
<li>media players could be built to support licensing from the ground up instead of trying to retrofit an existing technology.</li>
</ol>
<p>Nonetheless, DRM technology enforced restrictions that buyers found arbitrary and inconvenient. Competing DRM technologies also meant that files bought from a service supporting one technology might not play on devices that supported another technology. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/aRfX2gPwXMo?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">As good as DRM sounds, there are restrictions.</span></figcaption>
</figure>
<p>Later DRM schemes attempted to improve flexibility and interoperability using ideas such as the “<a href="http://dl.acm.org/citation.cfm?id=1029146.1029150&coll=DL&dl=GUIDE&CFID=525864035&CFTOKEN=60225181">authorised domain</a>”, but DRM had probably already worn out its welcome by the time these improvements became available.</p>
<h2>Rights lockers</h2>
<p>A rights locker is an online database in which a buyer can store a record of his or her right to use a media file. </p>
<p>The idea has been around since at least the late 1990s, but obviously online lockers could only become convenient once internet access was also convenient. </p>
<p>Over the past few years, the movie industry has been rolling out a rights locker scheme under the name <a href="https://www.uvvu.com">Ultraviolet</a>. Ultraviolet claims to have around 17 million users and counts around 80 movie studios and technology companies as members (but not Disney, which went with its own locker called <a href="http://www.disneymoviesanywhere.com">Disney Movies Anywhere</a>).</p>
<h2>Involving intermediaries</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/56117/original/rjbk8fyg-1407723107.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/56117/original/rjbk8fyg-1407723107.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/56117/original/rjbk8fyg-1407723107.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/56117/original/rjbk8fyg-1407723107.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/56117/original/rjbk8fyg-1407723107.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/56117/original/rjbk8fyg-1407723107.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/56117/original/rjbk8fyg-1407723107.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/56117/original/rjbk8fyg-1407723107.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="http://www.flickr.com/photos/theenmoy/6991557564">Theen Moy/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span>
</figcaption>
</figure>
<p>All of the systems described above seem doomed to chronic unpopularity. After all, what music listener or film viewer is going to say “I need a system telling me what I can and cannot do”?</p>
<p>Enter the intermediaries. For governments and copyright owners, it’s a lot easier to police copyright at the level of ISPs and content-sharing sites since (a) there are fewer of them and (b) they’re much bigger targets.</p>
<p>The most obvious way in which intermediaries could help out copyright owners is to install content-filtering technology. YouTube uses a system called <a href="https://support.google.com/youtube/answer/2797370?hl=en">Content ID</a> through which copyright owners can ask Google to check uploaded videos against a database of copyrighted works.</p>
<p>Some argue that content-filtering technology might ultimately be the <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=379201">least expensive way</a> of enforcing copyright law. Installing content filters might incur a cost, but this cost is less than the cost of installing rights-management technology everywhere else, or of pursuing large numbers of individual infringers through the existing court system. (But I’m not aware of any empirical studies of these costs.)</p>
<p>Whatever the costs of filtering, critics object to the idea that intermediaries be made into copyright police. Copyright owners might respond: we tried policing individual users, and look how popular that was.</p><img src="https://counter.theconversation.com/content/30215/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicholas Sheppard was formerly employed using research grant funding for the investigation and development of copyright protection technology.</span></em></p>There’s been a bit of talk recently about getting internet service providers (ISPs) involved in the enforcement of copyright law. The federal Attorney-General and Minister for Communications recently released…Nicholas Sheppard, Sessional Lecturer in Computer Science, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.