On the one hand it is easy to take pot shots at the lawyers who seem to be at the leading edge of some of the problems of the content industry.

However, there are a whole lot of lawyers who really are pretty visionary and who want to create a resolution of what is taking place with content.

First you have to understand that the whole issue of copyright is unbelievably complex.

For instance most people don't realize that in a piece of recorded music there are two distinct copyrights – the copyright in the recorded performance and the copyright in the song. Sometimes this is made even more confusing by the fact that the same person may be the performer and the songwriter.

That is pretty simple compared to the case of a movie. In the case of a movie you have the copyright in the movie itself. Then you have the copyright in the music that is used as a soundtrack. And in the case of the use of popular music in the soundtrack you get into the multiplicity of copyrights once again.

On top of that you also have a basket of rights that have been fought for long and hard for many years. These are the rights of the scriptwriters, the rights of the extras, the rights of the leading actors, and the rights of the other actors – plus the rights of the directors and the producers.

Lawyers have to negotiate and then construct agreements that reflect the interests of all the rights holders.

This is one of the reasons that it is so complicated to license movie footage. This takes you into territory that is a total nightmare. For instance, does the leading actor have a prior sponsorship deal with a company that is competition with the person who wants to license the material? That stops a deal dead in its tracks…

And what is the purpose of the licensing of the footage in general?

I have worked on a few deals of this kind and they present a whole raft of challenges….

So what has evolved over a long time is a set of relationships and protocols that mean that those lawyers that understand what the key problems are for the studios in terms of their relationships with all the various stakeholders, tend to be the ones that are able to get the deals done.

The advent of the Internet with file sharing, YouTube, and mash ups makes for a nightmare for the lawyers who had carefully constructed a relatively efficient working model that enabled things to get done.

Now we have people running rough shod over creative people's rights without any permissions being sought, and with no remuneration to the original creators either. You can understand why some of the legal profession wants to litigate, litigate, litigate…

And then you have the lawyers who still think of everything as it was before digital, and who want to apply the same methodologies to the post digital world…

My view is that this lack of understanding of how reality is, is standing in the way of progress and creating balance – not just balance in the content world, but in the broader financial world too.

I don't know if you remember this, but back when people were trying to break the sound barrier in new kinds of planes, there were repeated crashes and test pilots were killed. The problem was solved when a test pilot realized that as the plane was going through Mach 1 the controls actually reversed. Once this was realized the problems of going through the sound barrier were solved.

I believe that this metaphorically is what happens in the content field with the transition from analogue to digital.

There is chaos in the system.

Some of the lawyers have figured this out. Some haven't.

This entry was posted on April 4, 2009 at 3:47 am. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

Posted in Intellectual Property Main Page by Chris Gilbey No Comments Yet