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The Network Observer: Whose Content is it, Anyway?
Posted Mar 1, 2003 Print Version     Page 1of 1
  

In the 20th Century, being a writer, filmmaker, composer, or other creative talent seemed a lot easier. Now, with nearly universal Web access, creators and consumers work together to develop, share, and protect content. Unfortunately, the new producer-consumer dynamic created by network delivery now puts numerous stakeholders into content that once belonged exclusively to its creator.

The natural inclination is to think that what you create, you own. I owe no obligation to anyone about the content I create or in what form it will take, whether digital or analog, MPEG or film.

Editors, publishers, and producers will disagree. For many, creative works are "works-for-hire," which means more than just your interest in a work ending once it is accepted by the paying customer. The producer may dictate the form of the deliverable as well. Will it be MPEG? Will it be DV? Will it ship as DVD, CD, or MFX? What compromises must you make in production to achieve that deliverable?

Next, your digital content partners may also disagree about who "owns" the content. Not only will they add value to the existing content—sound or special effects for example—but they too may want format changes. What types do they accept?

Now, what about the software vendors? What stake do they hold in your content?

You might say, "Wait a minute. Software plays no role here." Consider, though, what would happen if your chosen software vendor happened to go out of business. What if Apple were to stop producing Final Cut Pro? Or if any of the other NLE vendors discontinued their core products? How would you access your content then?

In the past, film content had a readily accessible form—it came as film. With an appropriate projector, anyone could view it. But that's not true of today's files. You may protect yourself by keeping content on tape backup and CD or DVD discs. That's great. But if it is in Real, WMP, or QuickTime format, how would future users access it if one of those companies stopped producing that software?

You could say, "I'll just keep a copy of that program around and then convert it." But what if future hardware doesn't support that software? What if the formats you can save or convert it to also aren't supported or reduce the quality of the output? Okay, you'll also keep the program running on a particular workstation. What happens when the workstation goes out of service, for one reason or another? At some point, the hard disk may fail. With today's applications, you can't install them onto CD-Rs and run them from there. There may not even be viewers available to display the content, let alone alter or edit it.

Even if you were somehow to preserve the program and content, what about the vendor's license needed to run this program legally (and hence access the content)? Could you be sure in ten years that you could do so without some corporate lawyer threatening you? What if the program itself tries to "call home" from your workstation only to get a big, fat "NO WAY" in response from the vendor?

Congenial software vendors may not be able to comply with giving you access even if they want to. Various industry associations—notably the RIAA and the MPAA—may mandate digital rights and copy protection that will lock anyone out of the content. Using the DCMA, these organizations may make it so that even the right to discuss how to access your locked content is limited. 

Consumers also want a say on content. They now ask content creators for more rights to the creative works they buy. In the past, these creators made a living by selling content to consumers in a variety of ways. These "vessels" for content—books, tapes, posters, etc.—became almost indistinguishable to the consumer from the content they contained. Consumers accepted the fact that if they destroyed the vessel (the book or tape), they would simply have to buy another copy to regain access to the content.

With digital technology, however, the vessel in which the content ships is easily separated from the content. In most cases, how that content will be used, and the form in which it will be used, may bear little physical relationship to the form or vessel in which it was delivered. (Hence, the common reference to "essence" in digital production to refer to content as opposed to the container it ships in—DVD, CD, online file formats, etc.)

Consumers now want the ability to remove the "essence" from the vessel and store it elsewhere as a backup or as a way to play or view the content in another location. If the original vessel is destroyed, they want to have the creator restore the content to them (after showing proof of purchase, of course.) The customer feels that paying for content entitles them to some guarantee that they'll be able to use it when they need it. How do creators respond?

Society also has an interest in your content. The U.S. Supreme Court, although deciding in favor of extending copyrights, was divided on the issue. Several judges argued that the Constitution meant to benefit society as a whole by granting copyright for a limited time. When that time has expired, the content belongs to the pool of work in the public domain.

More immediately, with content protected by copyright and in unreadable digital formats, future generations cannot see primary documents from our time. Even though we are generating more content daily than the U.S. did in an entire year in the 19th Century, most (and perhaps almost all) of this content will be unavailable in just a few years. Music, videos, books, and magazines will essentially vanish.

Do we not owe something to these future travelers to let them share in this wealth we are creating today on our networks?

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