This post is by FMC Policy Counsel Chris Naoum.
Early this morning — 8 a.m., to be exact — some of the smartest and most opinionated voices in the intellectual property debate entered the ring to duke it out. Well not really… everyone was kind of in agreement.
The discussion was part of the Broadband Breakfast IP series, and took place in downtown Washington, D.C. Casey Rae-Hunter, FMC’s Communications Director and Policy Strategist joined the provocatively-titled panel, “Will the Obama Administration’s Intellectual Property Czar Crush Internet Piracy?” Also appearing was Stevan D. Mitchell, Vice President of Intellectual Property Policy at the Entertainment Software Association, Gigi Sohn, President and Co-Founder of Public Knowledge and Steve Tepp, Senior Director, Internet Counterfeiting and Piracy, Global Intellectual Privacy Center, US Chamber of Commerce. Did we mention that it was early in the morning for Casey?
Here’s the video from the event, followed by my on-the-fly analysis.
The main takeaway from the event was that the Office of the Intellectual Property Enforcement Coordinator — a post created by Congress and whose chief, Victoria Espinel, was appointed by the administration — is doing a good job but should use caution when pursuing specific avenues of enforcement (particularly legislative recommendations).
Right now, everyone is basically waiting to see what those legislative recommendations might be. IPEC has already published the Joint Strategic IP Enforcement Plan, which the panelists all agreed was pretty darn reasonable.
That said, not everyone IP enforcement world can agree on the exact nature and scope of any enforcement strategies. As Mitchell pointed out, if people are expecting “tablets brought down from the mountain,” they are probably expecting too much.
Casey pointed out that since the digital transition began, consumers have been interacting with copyright in unprecedented ways. Likewise, government agencies have been dealing with an increasingly interlinked set of intellectual property concerns. Those tasked with enforcement need to carefully consider interactions on both sides of the coin and how they impact all stakeholders — including independent creators.
There was some disagreement about the role of Internet Service Providers (ISPs) regarding intellectual property enforcement. Sohn said that if there were any hint of a statutory mandate for ISP’s to enforce IP, “it would be WWIII.”
She also suggested that ISPs do not want their legal protections i.e., safe harbor weakened, and noted that any discussion of “filtering” for content quickly becomes a net neutrality question. Tepp responded that any filtering experiments are thus far a voluntary affair between rightsholders and network operators and that there is no push on the government side for either mandatory content filtering or a weakening of ISP safe harbors. Basically, he said, the government just wants a way to hold bad guys accountable for doing bad things.
Casey pointed out that independent music comprises 30 percent of music releases in the U.S. and around 80 percent of the global music market. FMC’s main concern is not only in ensuring that these creators can be compensated, but also that they have access to a legitimate digital music marketplace that prizes innovation and entrepreneurship.
An audience member referenced the explosive growth of the internet without ISP content controls, but also mentioned YouTube as an interesting example of a proactive filtering regime. Casey explained that there is an important difference between filtering at the ISP level and the web services level. He suggested that there is probably room for more cooperation and innovation between rightsholders and online services, but added that all parties need to solve the persistent issues with metadata — digital information about content that can be “read” by machines — not only to resolve copyright concerns but also to compensate artists.
Mitchell said that while there has been significant success with online notice and takedown responses, there should be efforts to improve compliance with existing standards (these standards are outlined in the Digital Millennium Copyright Act, or DMCA).
When asked if a YouTube-style framework for IP protection could be imposed on ISPs, Sohn answered that there were fair use implications that ISP’s do not want to deal with and that there are distinct technical differences between content that is streamed and content that is downloaded.
Casey finished off his statements by commending IPEC for tackling these thorny issues but warned against mandates that could restrict musicians’ access to the digital marketplace and chill innovation. All in all, it was a fascinating conversation, and essentially conflict free — a rarity in the wacky world of music, technology, policy and law!