Law and Information

Professor Terry Fisher has the difficult job, as the Day 1 Rapporteur, to present in 10 minutes the OECD conference conclusions. Here are the main points he made a few minutes ago:

A. Points of agreement (or at least substantial consensus)

(a) Descriptive level:
o We’re entering a participatory culture, active users, explosion of blogs; differences in web usage.

(b) Predictive level:
o Consensus that we’ll see a variety of applications that will florish; the shift to biz models that incl internet distribution will have long tail effects, increase diversity

(c) Level of aspiration:
o We should aim for a harmonized, global Internet – single, harmonized global approach (vs. competing legal/regulatory frameworks)
o Governments should stay out, but broad consensus of 6 areas where governmental intervention is desirable: (1) Stimulating broadband; (2) fostering universal access (bridging dig.div.); (3) educating consumers; (4) engage in consumer protection against fraud, spam; (5) fostering competition; (6) promoting IP to achieve an optimal balance
o We should attempt to achieve “biz model neutrality” (TF’s personal comment: appealing idea, but infeasible, there’s no way to achieve it.)

B. Points of disagreement

(a) Descriptive level
o Whether IP currently does strike optimal balance (yes, middle ground, no – spectrum of positions)

(b) Predictive level
o Which biz strategy will prevail: pay-per-view; subscription; free-advertisement based model?

(c) Level of aspiration:
o Network neutrality: required or not as a matter of policy
o TPM: Majority: yes, smaller group: no; intermediate group: only under certain conditions.
o Should governments be in the biz of interoperability?
o Using government power to move towards open doc format?
o Government intervention to achieve an Internet that is open vs. variations of a walled-gardened net?

Here are the keywords I wrote down during Marybeth Peters’ (U.S. Register of Copyrights, United States Copyright Office) statement here in Rome, which she delivered in the context of the final policy roundtable aimed at identifying priority issues, tools, and policy challenges.

• We must adjust our copyright laws to the digital environment. Copyright law has always responded to new technologies.
• Must be an internationally coordinated response due to the global nature of the Net.
• If copyright owner choose to use TPM, those TPM must be protected. Both copy & access controls.
• Key questions to ask: Are there new rights that are required to protect creators? But also: Do we need new exceptions (e.g. for libraries). Third, what are appropriate remedies (e.g. criminal penalties).
• Other important set of question: Who is the infringer (primary vs. secondary). This issue comes up in P2P context (Kazaa, Grokster, etc.) Secondary liability must be considered at the international level.
• Licensing issues: To be saved for the marketplace, no government intervention required. Consumers know what they want. Strongly opposed to compulsory licensing (costly, ineffective). Instead: DRM, collective administration to solve the problem.

I had the pleasure to chair a panel on new user habits and social attitudes at the OECD’s Rome conference entitled “The Future Digital Economy: Digital Content Creation, Distribution and Access.” On the panel was a wonderful group of experts:

• Dr. David Day, Nielsen’s/Net Ratings’ Director for Europe, the Middle East and Africa was presenting data on Internet use and online behavior with focus on the EU;
• Dr. John Horrigan, Associate Director for Research at the Pew Internet & American Life Project presented recent surveys on broadband usage in the U.S.;
• David Sifry, Founder, President and CEO of Technorati was talking about the development and measurement of weblogs as well as the overall evolution of the blogosphere
• Frieda Brioschi, President Wikipedia and Wikimedia Italy, shared thoughts about current trends and developments in peer-production projects like Wikipedia; and
• Dr. Jens Uwe Intat used the case of games to show how emerging user habits and social attitudes are changing the ways we consume entertainment.

From David Day’s and John Horrigan’s presentations I caught the following data points:

• More than 150 million W Europeans with Internet access and still growing.
• 95% of established Internet users are using the Net at home, 49% at work, 23% at educational institutions, 18% in the Internet cafe, 14% in public libraries.
• The top-device to access the Internet is the Pc/Mac (91%), followed by laptop (33%), mobile phones (18%), digital TV (5%), PDAs (4%) and game consoles (4%).
• Typical online behavior in a month includes: search (94%), general interest/portals (86%), web services/internet tools (75%), mass merchandisers (73%), auctions (66%), email (54%), online banking (53%) and community sites (53%).
• 36% of adult Americans have high-speed connections at home.
• The following percentage of the age group 35 & under has ever been engaged in the following activities: 20% blog; 39% sharing creative work online; 35% sharing any online content.
• A December survey by Pew shows that having a broadband connection at home continues to have a transformative impact on users. The three areas of impact are: (i) increased reliance on the Internet for news and information; (ii) heavy use of the Internet for gaming and entertainment; (iii) use of the Net to satisfy creative needs (amateur content production).

Here are my personal take home points from the panel discussion:

Empirical as well as anecdotal evidence (case studies) suggest fundamental changes in the way we access, use, create, and distribute information, knowledge, and entertainment.

(1) Access:

• Broadband has arrived and is creating a critical mass.
• In large part due to broadband technology, the Internet is increasingly embedded in our daily lives.

(2) Use:

• Technology matters, too, not only specific user demographics.
• We heavily use services that require some sort of content intermediaries (search engines, news aggregators, games).

(3) Creation:

• Weblogs play a key role in bottom-up content creation, both in the EU and the US.
• Peer-produced projects such as Wikipedia are prime examples of new modes of content production

(4) Distribution:

• Large-scale P2P file-sharing, for legitimate and illegitimate purposes, is persistent.
• Increasingly important is sharing of self-created content.

In conclusion, it seems to me that we are at the beginning of a long, multi-layered discussion that is likely to be increasingly centered on access and creation rather than (P2P) distribution.