Pod-casted, playlisted, personalised or downloaded… a digital revolution has hit the creative industries. Today’s consumers want access to music, films, entertainment and publishing online – and they certainly don’t want to pay for the privilege. But as sites such as Youtube and Myspace dominate the web, what hope do IP Rights holders have of retaining control of their creations? Jeremy Phillips follows the route from Youtube to Yousue

Techno-savvy, trend-sensitive and culture hungry, today’s young consumers have already laid down new ground rules for buying, using and enjoying video and music products. Startlingly for the media industries, the C21 generation doesn’t just buy their products: they mould them, morph them, turn them into fresh works of their own and spread them through the Internet. All this is done without the help, and often against the wishes, of the traditional standard-bearers of merchandised culture, the fi lm and record industries and their long-term allies the rights owners. But what are the new ground rules and what do they mean for IP Rights today? The new ground rules The new ground rules are not set out in any code, but it’s easy to find out what they are. Just look at how people use media content. Three rules stand out above the others:

1. Do it if you can get away with it
Ours is the Nike ‘just do it’ generation. The message is potent and it’s clear: the net has no policemen. The only barriers that can’t be breached are technology based. However, reliance on this rule can cause casualties, as heavy users of peer-to-peer music and video download sites like Napster and Kazaa have found, but the basic proposition holds for the reason that most file sharers do get away with it.

2. If anyone pays, it's the advertiser – not the user
Originally an expensive pastime, accessing and downloading net-based material is now so often free, or at token cost, that an expectation has arisen that the user never pays. Content is not a product in itself, but a bait that leads advertisers to pay ever-increasing sums for pop-ups, top metatag listings and prime site displays. Advertisers have also discovered how useful the web is when it comes to cutting out the middleman and reaching through the ether to potential customers. Witness eBay, once seen as a handy way for stamp collectors and antique hunters to chase bargains being sold from garage clearances, but now the province of heavy traders, grey goods merchants and counterfeiters.

3. Free speech rules OK
In the previous century, most Internet use was a solitary activity. The ‘Nerd on the Net’ was a metaphor of the misfit and the socially inept, but now a large, fast-rising volume of Internet use is shared. For the timid there are real-time messenger services that now offer voice and webcam connection with friends in addition to Stone Age keyboard chat. For the more adventurous there are chat rooms; for the imaginative, massive multiplayer online role-play games (the unpronounceable MMORPGs). Newly in vogue are shared-space sites, such as Flickr, MySpace and YouTube, where family photos, promo videos, indie launches, holiday movies and proprietary artwork and recordings ru electronic shoulders in a glorious cyber-cascade of son et lumière. Somewhere in the free speech camp lurk the bloggers, too, ranging from hedonists, exhibitionists and monologuers at one extreme to serious social and political campaigners at the other, united only in their choice of medium and their unworried tendency to decorate their blogs with imagery found via Google thumbnails.

In the old order, investment was protected, and profit generated, by IP Rights. Copyright protected original works and format (book, video, CD or broadcast) in which they were packaged. Trademarks protected brands. A complex blend of both those rights, plus privacy and publicity rights, gave celebrities, both real and fictional, a degree of control over their names and images. Database right and data protection laws prevented or restricted the dissemination of various types of content. Patents conferred a powerful monopoly on even net-based inventions, so long as they were new and weren’t entirely obvious. So where are those IP Rights now?

Originally an expensive pastime, accessing and downloading net-based material is now so often free, or at a token cost, that an expectation has arisen that the user never pays. Content is not a product in itself, but a bait that leads advertisers to pay ever-increasing sums

Rights for a new generation
The answer is that they’re still there, but people see them differently. The point to remember is this: IP Rights are private rights that are normally only enforced if three conditions are fulfilled: you need to find someone to enforce them against; somewhere to enforce them; and the result of a successful enforcement has to be worth the cost and effort involved – and there’s only a slim chance of that when it comes to digital file-sharing.

On the Internet, users’ identities are often hidden or merge with fictional identities to the extent that it’s difficult to spot who an infringer is. Owners of domain names can be traced through WHOIS services, and businesses such as CPA can root out key information. But often the name is made up and there still remains the problem of finding its owner before you can serve them with a writ. Shared-use facilities, such as YouTube and MySpace don’t do any direct infringing themselves, although their community of users contains many people who do. And emailers who send out spam, viral video clips or pin-ups of movie stars are generally identifiable only when an IP owner goes to court for an order of discovery against the ISP or mail host who registered them.

Even if you do find your target, where can you sue them? The Internet is the proverbial global village, but courts only exist in real locations – countries. And, although a trip to Tuvalu might be grand for a holiday, its beaches may be more fun to use than its courts. Old-fashioned terrestrial law has its own web of rules that decide which country’s courts you can sue in, with separate rules governing arbitration of domain name disputes by WIPO, nominet and other national registrars.

But even when you know who your e-quarry is and you’ve found somewhere to sue him, you need to assess the likely results of your enforcement action. If your infringer has no assets to speak of, you can forget about winning damages and getting back your costs. Monitoring the alleged infringements will allow you to follow more cost-effective routes provided by cease and desist warnings. Of course, success is never guaranteed, but building up a catalogue of evidence will assist your case.

What IP Rights owners want is a fat target – a big business that they can license their IP to, someone they can sue if anything goes wrong. So long as the businesses that profi t from others’ web content are made to pay large sums for the privilege, small-timers will be left to nibble away at IP-protected materials. They will do so without permission, but without serious threat of being sued, much as they’ve done ever since photocopying and cassette recorders were invented.

Meanwhile, IP owners sit down with the Googles, the YouTubes, the MySpaces of this world, with the Hollywood/Bollywood moguls and the record companies. Their agenda is to fi x blanket licences, to promote digital rights management schemes and to deploy protection, decryption and detection technologies where they can. Will this agenda trump the user ground rules that have shaped our computer habits today? Or will the next wave of techno-sophisticates precipitate the leap from YouTube to YouSue?

With eight million new pages added to the web every day, how can you be sure that mentions of your brand are always legally sound? Sprawling, information-rich sites can draw upon so much of the surrounding web in order to find content that it’s hard to know what will be devoured next – or how, where and when the results will be presented.

Content watching services can take those worries out of the equation, by monitoring the web on your behalf for websites using your brand identity. Whether it is checking for counterfeit goods sold in online auctions, unwanted connections with online gambling or embarrassing appearances in adult-themed sites, content watching can provide you with the information you need to protect your brand online.

You can opt to monitor specific words, names or phrases in key territories around the world, including foreign-language translations. Message boards and blogs are included in the sweep. It is also possible to search by site type, site traffic, Whois record, trademark class or country of origin.

For more information, please email domainnames@cpaglobal.com


This article first appeared in IP Review, issue 17

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