And he’s right. There’s nothing I want or expect from BoingBoing and Rob Beschiza at this point. There’s nothing they’re going to get from me. I won’t be reregistering, because I don’t like the arbitrary way they treat the people who make up their community. They’ve made it clear they’re not going to change that approach.

So be it.

On to other things, like saving the Internet, and defeating ACTA. Stuff that matters.

So what happened to drag me away from the keyboard?

• I got a dog (using the same rule as cats – see other blog)
• I helped run a BarCamp on Open Government
• I did a couple of other projects that I can’t link to or talk too much about
• I had bronchitis (been a pretty crappy winter all around, health-wise)
• I was accepted as an exhibitor in the Kapiti Arts Trail this weekend (#91)
• (I’m sure there was some other stuff)
• Oh yeah, I signed up on Twitter.

That last is the big one, really, as it chews up the most time. I have barely looked at RSS since April, and have only made one post to my family blog. It’s really quite fascinating to me (10K tweets later) and not a little frightening. I’m following most of the people I used to use RSS for, but now it’s in real time.

So, what’s hauled me back to the keyboard? ACTA – the Anti-Counterfeiting Trade Agreement – you may remember that I’ve blogged on this before. Well, it’s just entered its next round, in Korea, that well-known home of freedom and civil liberties (and the first country in the world to pass a 3 strikes law and implement it).

So, wassup with ACTA? For background, I’d like to point you to a recording of me discussing ACTA with Kim Hill on National Radio recently. Very pleased with the event and it’s now very timely, as ACTA has reared up again.

Those playing at home will remember that I’ve discussed the “intellectual property” aspect of ACTA before, and the fact that it’s being negotiated so secretly, more secretly than any other “trade treaty”. Long time players will also note that, in my submission to MED in June last year, I said (in para 17):

Further, the scarce official information available about ACTA would appear to indicate that it was intended to harmonize the enforcement of existing IPRs. However, the only current approach to a harmonized global concept of IP is occurring through WIPO, and ACTA appears to seek to operate independently of WIPO. There seems to be a fatal disconnect here – how can you harmonize enforcement if you don’t first harmonize the definition of infringements?

So now they’re seriously talking about this area and how they want to do it.

Michael Geist has broken the story and Cory Doctorow has broached it to the BoingBoing community. Neither of them appear to have actual text, but quote sources who say the draft text is modelled on the US-South Korea free trade agreement.

Geist outlines five issues:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.
2. A requirement to establish third-party liability for copyright infringement.
3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs).  Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.
4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements.
5. Rights Management provisions, also modeled on U.S. free trade treaty language

Doctorow’s language is a little blunter – he notes that ISPs will have to proactively police copyright on user-contributed material, that ISPs will have to cut off Internet access of accused copyright infringers or face liability, that the whole world must adopt US style notice-and-takedown rules without evidence of infringing copyright, and that there will be mandatory prohibitions on breaking DRM.

We can’t confirm or deny what is in the actual draft because we don’t have a copy. The US administration wrote this chapter of the draft but is still regarding ACTA as a matter of national security. They recently let 42 individuals see a draft text, but only 4 were from what we regard as “civil society”. The rest were big corporates. This, the Obama Administration calls “transparency” and consultation. To be fair, Bush’s administration was worse, but this is not what we expect from a leader who campaigned on “change”, “hope” and “yes, we can”.

The New Zealand government is no better. Our officials say:

The countries participating in the development of ACTA have agreed that general information about ACTA’s objectives and the negotiating process should be made public. In that regard, MED has provided a range of relevant information about ACTA on its website. However, ACTA participants have also agreed that information relating to formal negotiating positions of governments should be protected, as is the standard practice in international treaty negotiations. It is in this context that we are unable to reiease many of the items you request.

First point – it is not the standard practice – the WTO Doha Round, the Free Trade Area of the Americas, World Health Organisation, WIPO – all publish the texts and proceedings as they go.

Secondly, the material published by all nations, including the Ministry of Economic Development is contextless spin, rather than substantive reporting of negotiations. “General information” is a kind way of putting it – “We’re doing something that will affect all of you but we’re not going to tell you until we’ve done it” is more accurate.

What is hardest to understand is how the governments involved – United States, Switzerland, Japan, Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates, Canada and the European Union – can justify this secrecy in the face of domestic freedom of information laws, pledges of transparency and even the concept of democracy – government of the people, for the people and by the people.

It’s going to get worse before it gets better, and individual protests are going to be little waves crashing against the rocks of government indifference.  The proponents of this type of action have money, power and the ears of their legislators – we have our spirits, our wills and our need to be free. To make sure that’s enough, we need to join together and use our collective voice. In New Zealand, I recommend the Creative Freedom Foundation, InternetNZ and the NZ Open Source Society, all of whom have expressed their concerns to government previously. Elsewhere the Electronic Frontier Foundation, Knowledge Ecology International, even your local Pirate Party and the like are carrying the flag.

The proponents of ACTA say it’s about protecting the property of the content creators, letting them earn a living, that opponents  want to steal the food from the mouths of artists and their children. They’ve persuaded (or coerced) some artists and writers to speak up in this matter, to plead their cause. But the real blocks to artists, writers and musicians earning their fair share of income are the publishers themselves, with iniquitous contracts, onerous debts and dubious expenses. All the publishers are trying to protect is a dying business model which even now is still earning them billions each year.

Copyright isn’t about property – it’s about knowledge. It’s a social contract between the creator and the receiver (I won’t say “consumer” because knowledge isn’t consumed; it’s shared) and protects both. Publishers have always owned the gate to knowledge. The Internet and digital technology changes that completely. We’re all publishers now.

In a knowledge economy, you’re not buying and selling knowledge, just as you’re not buying and selling cash in a cash economy. In a knowledge economy, knowledge is the currency used to obtain something from the receiver – attention, loyalty, or something else  - something of value to both parties. It’s a different market model from the industrial one we grew up with of few producers, scarce product and many consumers. Product is no longer scarce, nor can it be made artificially so. The old model is broken, yet the old guard is trying to hamstring the new for as long as possible.

Google ACTA, learn what it’s about and what it’s claimed to be about. Wake up your media who are strangely silent on this matter and make them report it, if only to report your protest. Contact your elected representatives and make them aware that you don’t want this, that you won’t stand for it and that you expect them to represent your will, not the will of Hollywood and the recording industry, the pharmaceutical industry and the big broadcasters, who all stand to make more money by locking in our choices in what we can do with information.

Don’t just sit there – DO something!

Yesterday, Rob Stowell posted a link to a series of posts on Hypebot about free music, from inside the industry. I recommend reading them for some insight and to form your own opinion before reading on, because I’m about to dissect them. ;-)

I wrote on PAS:

Some of those people are clinging to a false hope. I think Kevin Kelly (surprise) and the guy from INgroove have it sussed, but most of the rest are still talking about “maintaining exclusivity” and using free as a promo.

I’ll stick with Reznor’s view from the clip I posted the other day – as soon as it gets published, someone will rip it and put it online for free. It is not possible to stop that technically. If your business model doesn’t take account of that, you don’t have a viable business model.

And it doesn’t matter whether it’s music, art, literature or photographs; if it can be delivered digitally, someone is going to give it away, whether you want them to or not.

Now that you know that, formulate a business plan that takes it into account. That is the only sustainable way to make money in this environment

Rob came back and quoted Glenn Peoples’ billboard.biz column that headlined this little angst-fest, saying:

There’s a little more in this than “industry people” wanting to (further) feather their nests. It comes back to robbery’s original feelings of misgiving: “free” sounds great, but it’ll have down-stream effects we may not like so much. Personally, I have a very low tolerance for advertising wrapped round my culture.

Which is interesting because that lets out television, radio, newspapers, movies and much of the Internet, including Public Address itself, which all have advertising support for revenue. But I digress. I started to respond on PAS but the post was getting long and convoluted, so I thought I’d put it here instead. Herewith is my analysis of the Hypebot series.

Glenn Peoples doesn’t take a stand in this debate. He’s reporting on the Hypebot series. But his report is pessimistic, to me:

In theory, a company should set price equal to marginal cost. Digital goods on the Internet, though, are not akin to razorblades. In reality, not all digital music can be priced at zero. The information comes with real costs. Even if it feels free (Nokia’s Comes With Music) it’s not free.

Peoples also quotes David Zaslov:

“We don’t want to lose marketshare, but at the same time, we don’t want to encourage free content. Free didn’t work for newspapers. Free didn’t work for the magazines. And it doesn’t work for the broadcast companies. We have to see how it develops. But ultimately, we all have to follow the behavior of the consumer.”

That’s the general flavour I get from the series, apart from the ones outlined below; we don’t want it but we’ll have to give in to part of it, begrudgingly.

Kyle Bylin is actually inarticulate – I’m not really sure which way he’s going.

Virgil Dickerson is positive, but I tried his sampler and a) didn’t warm to the music (personal taste) but b) thought even less of the technological presentation. I think he “gets” free, but he’s struggling to do more than teasers, despite what he says.

Greg Scholl is very begrudging and only sees the teaser aspect:

As for the second type of free music – giving away tracks to sell tracks – we very much believe in the use of free music downloads as a promotional tool, and encourage our clients to give a song away

Really misses the point, for me. He still sees the revenue as driven by the individual song, but the idea that each copy is monetizable (and therefore each download is “stolen” revenue) is what is standing in his way. Maybe he needs some it zen marketing – you’ve got to let go before you can receive.

Bruce Warila is actively hostile:

Now that music is unbundled and selling for copper (pennies), it’s time to fight a new battle. If sharers rob us (rightsholders) of our right to digital exclusivity, which is our right to exclusively launch, release or to maintain an exclusive digital presence, then we are the fools for not insisting otherwise

And let’s remember, he’s an “investor [and] currently acting as their strategy and technology officer” for this Music Xray outfit (still in beta), so he’s not speaking as a songwriter or musician when he’s talking about rightsholders. He goes on:

Your strategy now should be to prepare for the day when a brand offers to buy your exclusivity. Since your songs are your advertisements, your calling card and your audio pheromones, perhaps consider being a bit more mysterious about everything else in your life. Hold back the baby pictures, the studio session videos and the near death experience stories until the exclusive offer shows up in your inbox. After all, if your free music offers don’t get you marketplace traction, the other stuff is just a pile of (fill in the blank).”

That’s just sad, to me. It’s all about commodities. His brand new thing is going to crash and burn because it’s based on an old model – he’s just wrapping it in new paper.

Chris Vinson is sort of positive:

Once you have a fan, it’s a lot easier to ‘upsell’ them on other forms of same music — a $0.99 acoustic version, a CD, a live show, etc. But without that easy first step, there is a big chasm to cross. I think the key is to have a overall strategy, and include ‘free’ as that easy first step.

But this is still missing the point. He’s treating the teaser as a loss leader. It’ll work, up to a point, but compare it with Radiohead giving away the whole damn album. And still being the top seller.

Bruce Iglaur is still in the old mode as well:

At this point, no model for monetizing music (for example, advertising-based free streaming or downloading) other than traditional royalties has proven to fairly pay artists, songwriters or their patrons/financiers (the labels). So, a free track or stream with label and publisher approval? Sure. Distribution of music without label and publisher approval? Nope.

It can’t be stopped, but he continues to cling to a belief that it should be.

Jim Mahoney is even more doom’n'gloom:

Know that if you waive performance or other royalties in exchange for “promotional value” you may be putting the final nail in your coffin (at worst) or allowing others to profit on your music (by building their own business models and taking your audiences and selling advertising or subscriptions) while you make nothing tangible in return (at least).

Completely missing the concept that you might be making money anyway though others may be able to “profit on your music”. He’s fixed on the sales model and anything that interferes with that is wrong.

I’d agree that Kevin Arnold is kinda positive, but wary. He’s still on the promotional kick, though:

Just like the handouts at Costco, tasting at a winery, or swag bags at conventions and parties, labels and artists have long given away music in the form of samplers and promo CDs, free performances, and outlets like radio and MTV. In the digital world this act has value in ways that we’re still learning and consistently surprise us. Who would have thought that the free giveaway of Nine Inch Nails’ last record would end up with it being the top selling album at AmazonMP3 last year?

He’s aware but still not there in understanding. ” Who would have thought that the free giveaway [...] would end up with it being the top selling album [...]?” – that’s the key right there.

Think outside that box, as Reznor and co did, and do. It’s not just promo, it’s a new way of doing business that’s as old as the bible: “Cast your bread upon the waters”(Ecclesiastes 11.1) or “Give, and it will be given to you” (Luke 6:38). That’s not to say I’m turning to a deity to look after copyright – not at all – but the concept is not unlike Karma – what goes around, comes around.

Bruce Houghton‘s little poem is almost right – “free music only has value if it sparks action” except it’s still tying the music to the purchase and so, for me, misses the ultimate point.

I’d have to say that, while I think I agree with Robb McDaniels, he’s a little incoherent. What I get out of his piece is that he understands that value is a malleable concept, and subject to perception. Maybe

Jeff Price gets it:

Free giveaway of music was, and still is, an important part of any marketing and promotion campaign. The change that has occurred is a music fan can now get any song they want for free, not just the ones being authorized. [...] I disagree strongly with the statement that the industry is not profitable – it is. In just one month, bands and digital only labels are generating tens of thousands of dollars,recouping their costs more quickly and making a healthy profit on top. Revenue is being generated from MUSIC SALES in unprecedented amounts allowing labels and artists to have real careers and earn significant annual income.

As does Susan Ferris:

Having a song that is available to the masses for free has proved profitable for us. We have been able to give a taste with out spoiling the dinner. Ultimately the fans have been truly appreciative and in return purchased the whole CD

Watch for Tunecore and Long Live Crime Records to move ahead in the future – understanding is everything in a knowledge economy.

Actually, I’m more hopeful than not, having read those pieces. The ones who get it will be the luminaries of the next decade of music. And the ones who don’t, won’t be around.

On Torrentfreak there is a report of an EU vote (481 in favour, 25 against and 21 abstentions) to accept a report about fundamental freedoms on the Internet.

For the third time in a year the European Parliament has spoken out against tougher anti-piracy legislation that would allow alleged file-sharers to be disconnected from the Internet based on evidence from anti-piracy lobby groups. Instead, they chose to protect rights and freedoms of Internet users.

Apparently, the French are not amused.

The report and (press release) contains lots of “whereas’s” and “having regard to’s ” but is essentially a “hands off!” to individual governments. It’s not a bad draft for that ever-phantom “Internet Bill of Rights” actually, and worth the read.

So, Germany has said no, the UK has backed off, Ireland’s action is a) voluntary, b) restricted to one ISP and c) likely to disappear as it was contingent on all the other Irish ISPs coming on board, which they declined to do, the EU has several times said no (three times in the last year, the press release says) and AT&T and Comcast in the US have both denied doing deals with the RIAA, as was reported last week. Oh, and New Zealand blocked it as well. Eventually.

Where does that leave the French? They’re not known for giving a franc about what the rest of Europe thinks, but I can’t see even a massive ego like Sarkozy wanting to jeopardize trade links just to push this through. They were supposed to be the precedent-setting vanguard for graduated response in Europe, just as we were for the English speaking world, and now they stand alone, up un creek sans le paddle, or even much l’eau.

The wing nuts are raging that Obama is interfering in their lives! Let me quote to you from one of the slightly less foaming:

Yikes! Is there any part of American citizens’ lives that the Obama administration does not want to intrude on? Where is the MSM on this? Can you imagine the outcry if this was coming down the pike under Bush? There would have been weeping and gnashing of teeth! And cries of totalitarianism, which it seems, is coming for us under the cover of night…

The irony that this originated under George Bush seems to escape them.

But they’re right to ask where are the mainstream media? Why haven’t they been all over this for the last 18 months? As I said in a previous post some have, but nowhere near enough.

The irony also is that the wing nuts are getting their information from a Russian blog (and funded by the State, no less). And yet they’re posting with labels like “liberal bias”, “media bias”, and “totalitarianism”. Way to have a rational discussion, guys.

ACTA is hairy and scary, not least because of the secrecy. But Europe is calling for more transparency, as is Canada, and Obama’s White House is reviewing the USTR’s stance of “national security” as I type (well, maybe not as I type as it’s just coming up Sunday morning in Washington DC). What will it take to shift the MED? Probably dynamite.

As bad as s92A was, ACTA is a whole other ball of wax. The media need to be on top of it, but they really are conspicuous by their absence. I don’t want to seem like a conspiracy theorist, but are the big media combines suppressing any reporting of the negotiations? Are there instructions going out to remote bureaus to not cover the issue?

Bloggers are able to get information. You’d think the MSM with their vast resources should be able to get at least that much, if not more. Because the alternative to the paranoia is that the media are just too stupid to recognize a story if it bit them on the arse.

Mauricio Frietas has posted a Q&A session with Campbell Smith, the CEO of RIANZ that happened in one of the Forums. It’s an interesting read but Smith is still convinced that his cause is just and, hey, RIANZ are not the RIAA so just trust us already.

He cites a report by Entertainment Media Research in the UK (don’t go there if, like me, you use anything other than IE) which is the 2008 Digital Entertainment Survey (direct link to full report PDF 8.6MB, Summary report PDF 848KB).
Actually, he says:

Independent research has found that the main driver of piracy is the
availability of music for free. For example, a recent survey in the UK
by Entertainment Media Research found that 7 in 10 file-sharers cited
the availability of free music as their reason for using peer-to-peer
networks and our focus group research in New Zealand suggests that it is
a similar driver here.

Okay, I’m up for some independent research. Let’s go looking for the report.

Interestingly, EMR’s site says

The 2008 Digital Entertainment Survey, commissioned by Wiggin , is a
comprehensive audit of entertainment and digital activity in the UK
today, investigating behaviour, trends, preferences and attitudes across
all forms of entertainment activity

while Wiggin’s site says

The 2008 Digital Music Survey, conducted by Entertainment Media Research and supported by Wiggin, makes encouraging reading at a time when it’s most needed

The distinction between “commissioned” and “supported” may be a little sharper when you know that Wiggin LLP is a media law firm in London. In my experience of lawyers, they don’t do much unless someone else is footing the bill and giving the instructions. I’d be interested to know who gave the instructions on this one, but I don’t think they’ll tell me somehow.

So, naturally I wondered who “Wiggin” is and it turns out, according to the Chambers UK Guide, that:

Wiggin LLP is a boutique firm of solicitors, recognised by many as the best in the media business. The firm specialises exclusively in music, film, TV, broadcast, new media, sport, gaming, technology and publishing and has earned an international reputation for fresh thinking and innovative approaches.
The 46 lawyer firm takes instruction from publishers, broadcasters, regulatory bodies, football clubs, sports governing bodies, production companies, telecommunications companies, film studios, record labels and TV channels. Its impressive roster of clients includes Al Jazeera, Bauer, BBC Films, British Phonographic Industry, EMI, BT, Channel 4, Columbia Pictures, Condé Nast, Emap, Five, HBO, ITV, The International Cricket Council, Macmillan, Manchester United FC, Middlesbrough FC, Paramount Pictures, Party Gaming, Racing UK, Miramax, Setanta, Time Warner Books, Trinity Mirror, Turf TV, 20th Century Fox Film Corp, Virgin Media and Warner Brothers.

In 2006, they acted for the British Phonographic Industry against Tiscali, a UK ISP, and looked remarkably like our own “industry bodies”. According to thelawyer.com:

The music industry is not only rich and powerful, it is also raging a war against illegal filesharing. But after focusing its wrath on individual filesharers, music industry body the British Phonographic Industry (BPI) is now eyeing bigger prey – the internet service providers (ISPs).

Last week the BPI, advised by media specialist firm Wiggin, wrote to providers Tiscali and Cable & Wireless (C&W) demanding that they suspend 59 internet accounts used for filesharing. But by doing this it might
have scored an own goal, invoking the anger of established internet players that until now have been on the sidelines in the music industry’s war on filesharing.

Legal actions of this nature against ISPs without a High Court order have no precedent, making the legal ground a little shaky. And the ISPs are ready for a fight.

Apparently they went back and forth over that summer and eventually made a deal to implement a ‘three strikes policy’. But the deal went south as soon as they tried to implement is, according to the Register:

Tiscali, the UK’s fourth largest broadband provider, implemented a “three strikes” arrangement with the record industry to disconnect illegal filesharers last summer, The Register can reveal.But over a matter of hours yesterday any deal that Tiscali thought it had made with the BPI evaporated in a row over money.

Relations between the pair are in disarray as they battle over who should cover the costs of sending warning letters to peer to peer users and then disconnect persistent copyright infringers. The system the two-million-customer ISP believed it had agreed with the BPI is the same one that the government is pushing all ISPs to enforce.

[...] A Tiscali spokeswoman said late on Thursday: “The BPI led us to believe we had concluded an agreement to implement their preferred process in October last year, which not only demonstrated joint leadership in this area but also that both of our industries could work together to tackle this issue.”

The UK government was planning to implement such a proposal as law, but recently decided against it.

Anyway, the upshot of this is that, far from being “independent research”, the EMR report was commissioned by a law firm, that regularly acts for big media clients, and used a research company that was set up by a former MTV Europe executive:

Entertainment Media Research was founded in 1997 by Peter Ruppert, formerly Head of Music Information at MTV Europe in anticipation of the digital entertainment revolution.

Today, Entertainment Media Research is Europe’s foremost entertainment research consultancy. Headquartered in London it serves the film, music, broadcast and advertising industries in the UK, Continental Europe, Scandinavia, USA and Australasia. The company is independent and privately-owned.

Our business is the supply of research intelligence that enables entertainment decision-makers to push their creative and commercial boundaries and minimize their risks to achieve the greatest financial return.

Radio programmers, A&R heads, marketing execs, television broadcasters, commercial departments, advertising creatives, media planners & buyers, strategists and chief executives all use Entertainment Media Research.

The company’s key assets comprise a large and continuously refreshed database of music and entertainment consumers, a suite of ground-breaking research methodologies that have become the industry standard across Europe and unrivalled expertise in entertainment and music research with a hard-won reputation for flexibility and highly actionable findings.

Entertainment Media Research is staffed with specialists from the entertainment, music, broadcast, marketing and advertising industries supported by MRS- qualified market researchers who truly understand how to maximize entertainment audiences.

EMR also produced surveys in 2005, 2006 and 2007, commissioned by Olswang, which is billed, by chambersandpartners.com as “a leading law firm renowned for its ground breaking work in the technology, media, communications and real estate industries. Founded in 1981, the firm has grown to a staff of 650, including more than 100 partners in four offices in Europe“. Five of the Wiggin partners are ex-Olswang, but there appears to be no other connection. Either the prime movers for the survey at Olswang moved to Wiggin, or EMR went looking for a new sponsor.

Oddly, only the 2006 report (PDF 428KB) is readily available on EMR’s website, and there’s not even a mention of it on Olswang’s (correction: Google found it). In 2007 and 2008, Olswang shifted their sights and produced Olswang Convergence Consumer Survey with YouGov.com but I couldn’t see any reference there.

By the bye, with regard to the 2007 report, an interview in the Globe and Mail with EMR produced the following statement:

“The music industry is in a state of considerable flux,” said Entertainment Media Research executive director Russell Hart in an interview. “The decline and value of the CD market is not being compensated for by the increasing growth and volume of the digital market.”

This is one of the few times I’ve heard anyone involved with the business officially not say it’s all down to piracy, and was echoed, perhaps inadvertently, by comments from Ant Healey in a recent Media7 program. The interview goes on to say:

Although the poll is based in the U.K., Mr. Hart says that the data can be applicable anywhere in the developed world.

“Of all the major music markets, the U.K. has been least affected by piracy. Consumer behaviour and attitude toward music is pretty common around the developed world, so the basic lessons still apply,” said Mr. Hart.

The best way of counteracting piracy, Mr. Hart says, is for the record industry to, “focus more on the quality of the music being released and spent more effort communicating the availability of the product targeted at a specific audience.”

“Piracy can be reversed if there’s a will to do so,” Mr. Hart said.

This indicates to me that EMR were at least trying to be objective. So I looked a little deeper.

In 2005, he said :

“The findings indicate that the music industry is approaching a strategic milestone with the population of legal downloaders close to exceeding that of pirates,” said EMR’s chief executive Russell Hart.

EMR apparently did not have a website in 2005 and I can only find references to the report. If anyone’s got a copy, I’d love to read it.

Anyway, that’s a side show. Back to Wiggin. Poking around Wiggin’s site, I found their Seminars page:

DIGITAL ENTERTAINMENT 2008
Wiggin LLP hosted the first Digital Entertainment Seminar, delivering the results of a major survey commissioned from Entertainment Media Research.
TUESDAY 4 MARCH 2008, LEWIS MEDIA CENTRE, MILLBANK, LONDON

So maybe they did commission it on their own behalf after all. Following the link brings one to a page which tells you:

On 4 March Wiggin hosted a seminar in London to discuss consumer attitudes to converging media. The seminar centred on the findings of a survey of 1,600 UK consumers commissioned by Wiggin and carried out in January 2008 by leading media research company Entertainment Media Research. The survey questioned the behaviour, trends, preferences and attitudes of respondents to all forms digital entertainment across the board; how consumers want to access digital services, using which devices, and perhaps most importantly, how much are they willing to pay?

Linked from this page is a 30 minute edited video of the event. It seems to have been reasonably balanced, though the EMR presentation shown focuses on piracy. And the “stealing” word is used by a member of the panel, though the analysis is reasonable. A nice point was the finding that only 10% of those surveyed are using their phones for mobile entertainment, and only 20% were even interested in doing so. I wondered how many were using iPhones (remember, this is a year old) although many said data charges were a barrier. The majority of the discussion is actually about advertising and how to cajole/persuade/threaten(?) internet and mobile users to pay for content.

So I had a flick through the actual report, which is actually a very interesting picture of the UK market. It only surveyed 1608 people – while the current UK population stands at 61 million. I have some trouble with that. The breakdown is even more odd:

EMR_sample

While the latest nugget from the UK Stats people does note that Grannies now outnumber the under 16′s, it still doesn’t break down the way EMR have done. The 2001 Census data makes it clearer.

The report notes that:

The survey reveals an astonishing divide in digital entertainment take-up and technology ownership between consumers of different ages. Furthermore, there is a substantial proportion of consumers that feel left behind. All this adds up to a significant untapped market for digital technologies and services.

and breaks this down:

EMR_detail

Apparently, once you’re over 54, you no longer care about the Internet, technology or music – who knew?

The significance of this last bit is that it’s those under-reported <25s that have the most familiarity with and use of digital technology. They are the people that should be surveyed in depth, because they’re the ones determining the future, but their weighted percentage of the survey is only 24%. Yet the survey then is held to be authoritative (by Cameron Smith, anyway) when talking about piracy, which even in the summary report is only 1 slide in 29.

And this is the level of research that s92A is based on.

This is not what I call “independent research”, or even “good research”, I’m sorry. This is what I call “industry research”.

When a company that specialises in litigation on behalf of the content industry commissions a report in order to host a seminar presenting that report, that’s not independent. When a report bell-curves its audience to minimise the major market segment, that’s not an accurate reflection of the marketplace. And when a report samples 1608 people, from a population of 61 million, that’s not even representative of that population, let alone the entire world. And Campbell Smith should know that.

Lies, damn lies and statistics.

[UPDATE] Apologies for the format of the tables – it’s a new plugin that I’ll have to go hack at]

Anyway, I hunted through the various documents for anything on ACTA and was finally rewarded. And where do you think I found it? In the BIM for Communications and IT(pdf, 104 Kb)? Nope. The MFAT BIM (pdf, 864 Kb), then (it is a Trade Agreement, after all)? Uh-uh. Perhaps the Guide to MED for BIM (pdf, 114 Kb) or the MED Economic overview for BIM (pdf, 349 Kb)? No, and no.

What about any of the 6 MoCommerce BIMs? Ah, yes, there on page 53 (paras 35-37) of the innocuously named CTI_BIM.pdf (pdf, 361 Kb) we find a description of ACTA:

Anti-Counterfeiting Trade Agreement (ACTA)

35 The goal of ACTA is to set a new, higher benchmark for the enforcement of intellectual property rights that countries can join on a voluntary basis. The discussions represent a cooperative effort by the governments to respond to the increase in global trade of counterfeit goods and pirated copyright protected works.The discussions are not being conducted as part of any international organisation.

36 New Zealand along with a number of trading partners, including the United States, Australia, Canada, the European Union, Japan, Korea, Mexico and Switzerland, have been engaged in discussions over the development of a plurilateral Anti-Counterfeiting Trade Agreement (“ACTA”) – a joint initiative by the United States and Japan. There have been three negotiation rounds to date. Progress has been slow, and it is likely to be well into 2009 before the agreement is concluded.

37 There has been some opposition to ACTA, both in New Zealand and overseas by groups representing the interests of users of copyright material and from groups representing internet service providers. This opposition is based on assumptions that ACTA will result in increased rights for copyright and trademark owners and give enforcement agencies what are seen as excessive powers. These assumptions are difficult to refute as much of the Agreement has yet to be drafted, and New Zealand’s negotiating mandate has not been publicised.

Not much, you’ll agree, nothing we didn’t know and nothing particularly scary (although the wry comment about refuting the assumptions made me smile, in a former public servant way).

Anything else? Yes. Yes, there is. The dry as dust Vote_Commerce_BIM.pdf (pdf, 261 Kb) contains a couple of gems, more in what they don’t say, rather than in what they do.

On page 13 of 41, we have para 53:

53. Additional work underway focuses on a broader international agenda. This includes participation in FTA negotiations with Malaysia and the Gulf Cooperation Council, and in the WTO Doha Development Round negotiations. Significant areas looking ahead include preparatory work toward FTA negotiations with India, Korea Information withheld in accordance with section 6(a) of the Official Information Act – prejudice to the international relations of the Government of NZ. New Zealand is among a group of developed and developing countries participating in the ongoing negotiations for the development of an Anti-Counterfeiting Trade Agreement(ACTA), which aims to curtail the growth in the global trade in counterfeit goods and pirated copyright works.

No mention of any sort of opposition or even assumptions. Which is a little odd, no? This is the main BIM on Vote Commerce – if you only read one BIM from this sector, this is the one you’ll read. (By the way, it shows that the relevant Minister is Simon Power, not Steven Joyce)

The other mention is more significant. The last 4-5 pages of the actual report (16-20) are given over to a table of “Pending decisions or actions”, and on page 20 we find:

Issue-Intellectual Property
Consider progress of the negotiations for the development of an Anti-Counterfeiting Trade Agreement (ACTA), which may require further decisions by Cabinet concerning changes to officials’ negotiating mandate
Reason why a decision/action is needed
Depending on the progress of negotiations, changes to the negotiating mandate may be
required to facilitate conclusion of the negotiations.
Timing
31 March 2009

Say what? The election was on 8 November, the BIMs would have been well underway at that point, as they’re prepared any time there’s a change of Minister. I attended a briefing at MED on 12 November (reminder to self – blog about briefing) called the IP Criminal Enforcement Workshop:

The main aim of the November workshop is to promote better cooperation between copyright and trade mark owners, intermediaries and various law enforcement agencies concerning the enforcement of existing criminal offences that already exist under a variety of different statutes (i.e. enforcement of crimes other than just copyright piracy). Furthermore,the workshop provides us with an opportunity to update parties interested in the development of ACTA on the progress of negotiations.

The officials at that meeting opined that they didn’t foresee the agreement being concluded before the middle of next year, and wouldn’t be too surprised to still be arguing the details in November 2009. Yet, at the same time, they were advising the Minister that they might have to change their mandate to be able to conclude negotiations. In March. The meeting is in Rabat, Morocco [that hub of international trade] in March. Coinkidink? I think not, stinky puppy.

What is it they can be concluding, seeing as how MED told us in November that there wasn’t a draft text that could be released? And why would they need to change their negotiating mandate, if the agreement needs to come back to Parliament to be ratified? Something smells about this, and it’s not good.

We need answers, not evasions. As Michael Geist has said:

This may sound repetitive, but citizens of the many countries involved in the ACTA negotiations should not have to rely on leaks and speculation to learn what their governments are proposing. All governments should support a more transparent process that begins with full public disclosures of drafts as well as more robust public consultation and participation.

James Love, of Knowledge Ecology International, has just blogged some details from apparently leaked documents re ACTA

http://www.keionline.org/blogs/2009/02/03/details-emerge-of-secret-acta/

It seems he has the outline and some text snippets, but doesn’t disclose the source. Love is pretty credible and I’d think unlikely to publish stuff he didn’t whole heartedly believe was correct, but he may be being spoofed – who knows?

There is apparently a permanent structure to be erected, the ACTA Oversight Council, to:
“supervise ACTA implementation, consider amendments, interpretations, and modifications to the agreement, and establish and delegate responsibilities to ad hoc working groups, as well as:

* assisting with resolving any disputes that may arise regarding the interpretation of application of ACTA;
* ensuring that ACTA avoids duplication of other international efforts regarding IP enforcement;
* seeking input from non-governmental persons or groups, particularly with respect to best practices in the field of intellectual property enforcement;
* endorsing best practice guidelines for implementing ACTA;
* supporting the efforts of international organizations active in the field of intellectual property enforcement;
* assisting non-Party governments with developing assessments of the benefits of accession to ACTA; and
* adopting its own rules of procedure.”

Also, some of the measures proposed (specifically, the use of injunctions) apparently breach Article 44.2 of the TRIPS agreement, sections of US law and also Canadian (I don’t know about other jurisdictions). NZ already allows injunctions, but I’ll let someone more legally oriented work out what the impact is on us.

I’m inclined to accept Love’s report on face value. It jibes with a lot of other snippets that have fallen from the official tables. MED have promised us that NZ will not need to change domestic law if ACTA is accepted, but I’m not a big believer of what MED says anymore. It’s not that I think they’re corrupt – it’s more that I think they’re working to an undisclosed agenda and the rights of citizens are unimportant compared to the rights of corporates.

Write to your MP, write to Stephen Joyce [see UPDATE below] and Murray McCully, write to your newspaper – get the word out. (Remember, physical mail to Parliament needs no stamp)

The mainstream media have been conspicuous by their absence in reporting on ACTA. You may think it’s because they or their owners have a lot of content held under copyright in many jurisdictions – I wouldn’t argue with you – or you may think that reporters are just too thick to get their heads around it (I might not argue with that, either) or that copyright is just not sexy enough for a headline. Yet “piracy” reports always get the column inches, it seems. We need to get in the media’s face with this issue, so they can’t ignore it any longer. Both s92a and ACTA are a curtailment of the rights of the many for the benefit of a few. Make some noise.

UPDATE: Steven Joyce is not (necessarily) the correct Minister. ACTA negotiations appear to fall under the Minister of Commerce, Simon Power

Of course, it says bugger all of substance, as expected after the last round report, but the interesting thing is that it’s there at all. Correct me if I’m wrong, but I think it’s the first time I’ve seen anything in the feed about ACTA. This says 2 things to me: 1) they know we’re watching and 2) they have decided to be a little more proactive about publicising the negotiations.

Apparently, “participants in the discussion included Australia, Canada, the European Union (represented by the European Commission and the EU Presidency (France)), Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States” (Morocco?? O rly? Mind you, they’re probably saying “New Zealand? WTF?” so it evens out).

“Participants reaffirmed their goal to combat global infringements of intellectual property rights (IPR), particularly in the context of counterfeiting and piracy on a commercial scale, by increasing international cooperation, strengthening the framework of practices that contribute to effective enforcement, and strengthening relevant IPR enforcement measures themselves.”

Yep, very ‘mom and apple pie’ but nothing of any detail or indication of timeframe. I suspect the US election
and, more specifically, the economic crisis have kicked the end of the year target, announced after the June G8 meeting, into touch, but I wouldn’t relax yet. Susan Schwab is a tenacious political operator who might just try to rush it all through in December and get it signed up by Bush before he drags his sorry self out of the OvalOffice.

“The discussion at this meeting focused on criminal enforcement of IPR. Participants also continued their previous discussions of civil enforcement of IPR.”

That’s good to know, because I kinda thought that’s what the role of ACTA was supposed to be about – No! Wait! Isn’t it about counterfeiting???!!1? Yeah, right.

“Participants confirmed their intention to continue consulting with their respective stakeholders, and to share the results of the consultations at their next meeting.”

No need to click the link now, I think I’ve only not quoted about 50 words. That’s about how much consulting is going to go on. They may be upping their PR game, but I doubt that anything has really changed.