Don't be sucked into supporting a flawed proposition in an artificially polarised copyright debate

The language in the increasingly hostile battle over online copyright infringement resembles that used in the war on terror or the war on drugs:

"wherever you are around the world, we're going to after you"

Alarm bells should be ringing. Drugs and terrorism ruin lives (in a biological sense). There's no comparison to the commercial problem of designing a market intervention suitable for the digital age to protect those who invest in the creative arts.

Also, arguably, neither war has worked. Ioan Grillo, in his book El Narco, documents the shifting power struggle in the battle to control the supply of illicit drugs and the social and economic impact of various enforcement strategies, including the chilling effect on communities demolished as the powerful slog it out.

Absurd as it may seem, I do see parallels with copyright infringement. If the world's most powerful nation struggles to control supply of a clearly dangerous physical product, how the hell do they expect to police worldwide availability of an intangible product with no known health issues?

There's a lot wrong with the approach to copyright enforcement advocated by many major rights-holders.

But now, with what can only be described as a massive escalation in hostilities, there's a real danger moderate rational-thinking people are being sucked into supporting one of two logically and morally flawed positions; pushed into taking sides in an incredibly complex debate, or backing unhelpful and retaliatory actions of questionable legality (on both sides), simply because one side makes more sense than the other.

Madness, since we're not dealing with a binary debate.

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I vehemently disagree with the hard line stance of most major copyright owners. Their notion of copyright, often referred to as copyright maximalism, is riddled with over-reach and disproportionate demands designed to support a flawed monopolistic business model.

Yet the counter-view - essentially a free-for-all - makes no sense either.

Researchers are already establishing a complex relationship between sales volume, price and availability of digital products. People will pay for products despite free versions being available elsewhere, but without copyright there is nothing to stop me downloading your book, and re-uploading it for sale so I can profit - clearly wrong.

If you prefer not to believe in the complex economics of the digital marketplace, market forces will drive down the price to zero in cash terms. All works will be free - or nearly free - at the point of access, but profiteering through advertising and possibly membership fees will be rife.

Again, profits will be made at the expense of the creator.

The challenge is to minimise the ability of third parties to profit at the expense of legitimate rights holders without causing too much disruption to other legitimate businesses or important rights and freedoms.

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But today's copyright regime puts the rights holder in the driving seat - even when there's no road to drive.

Copyright maximalists look not to minimise the ability for others to profit but maximise the returns for rights holders and, in the process, have shown little regard for other legitimate interests.

In an age of abundance the value is not just in individual creative works, but also in curation and in interfaces which aid discovery, bringing content you might like to your attention. Well-organised services where content is best collated to improve access should be able to charge a premium.

We need a copyright regime that acknowledges the symbiosis between creator, curator and consumer.

And, perversely, this relationship might be of interest to more than just rights activists and correlated industries like internet hosting. Emerging economic models look set to prove some of the policies pursued by the rights-holding industries - such as minimum unit price - could actually reduce net profits for the rights holders.

Maybe even the aims of copyright maximalists are actually compatible with a less overarching and overreaching enforcement models?

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My gut feeling - there's nothing wrong with a [very] low, or free at the point of access, pricing model. Online advertising was worth £4bn in the UK in 2010 and can only grow. Free or low-price models should be sufficient to pay for much of the creative content we see today and may even yield bigger profits for the rights holder.

Yes, some art forms may have less budget as a result, but feature films don't have to cost $500m, there's an element of Parkinson's Law at work. Will we suffer from a creative dearth? Probably not.

But, however you slice and dice the economics, even a low price model relies on some market intervention to ensure a fair proportion of ad revenues, membership fees and whatever cash can be made from hosting creative works goes back to the rights holder.

Plus, from a moral perspective, it's clearly wrong for middlemen to profit from the graft of others.

What's a fair portion? It's a price the market will support, and herein lies a major flaw with the existing copyright model. Rights holders largely set their own price, and - or so I believe - the price they set is the single biggest cause of piracy today.

Rights holders have effectively taken their product out of certain markets. Want to watch a James Bond film for over a legal streaming service? Not in the UK, last time I looked.

Old models of what a song or film is worth are flawed. The concept of digital ownership for the consumer is broken beyond redemption if e.g. resale is prohibited and even transfer between devices can be restricted.

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Middle ground on copyright law is easy. Shorten the protection term, so that historical works can be re-used and remixed far sooner than the law allows today; or, allow more freedom to remix and reuse portions of a copyrighted work to create new works, either through statutory licensing of re-use on cost effective terms, or by exemptions for fractional re-use.

But middle ground on enforcement is harder to grasp. The kind of question I'm asked is "Why will anyone pay if it's available for free?"

Two factors.

One: quite simply there's no such thing as "available for free". Everyone, even pirates, have bills to pay. Bills for server hosting, for considerable volumes of internet traffic. Pirates are operating a lean business of sorts, where a portion of the ad revenue goes to pay for hosting and the rest they keep themselves.

Two: people are lazy. Consumers are lazy. People don't always hunt-down the lowest price. In fact competition authorities around the world often have a problem educating consumers to their responsibility to shop around. The result: people prepared to pay for content will do so, so long as the price is reasonable and they know where to look.

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We need to legislate for the world we see now, not for an eventuality that hasn't yet happened. And by world I should limit this to English-language web content I have knowledge of.

Today we see legitimate content services - many charging what I feel to be well over the fair market price - turning a profit. We see film and music industries surviving a deep prolonged recession. We see global revenues from recorded music growing - up 8% in 2011.

We don't see so-called rogue websites being the first port of call for the vast majority of internet users. We see large portals such as Google, Amazon, Facebook and Apple controlling the audience.

Some people would never hunt a Russian YouTube or Chinese Spotify just to get copyright works for free. Others will only hunt down so-called rogue sites whilst legal alternatives don't exist. A fraction will and always will seek out free, so what?

Let's legislate for the problem of rogue websites if we ever get to a situation where it's looking unlikely a quality feature film will ever be made again.

And, if we do need to take action, let's first look at the harm spectrum and find an objective test of what constitutes a rogue website.

Should we criminalise linking to infringing content? Not unless we can minimise collateral damage. We don't want to make it any harder for a rival to Google to emerge, for therein lies a more serious problem: one company will control how we view and use information, and that is far more serious than the crocodile tears of Hollywood we see today.

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Yes, I have issues with a site profiting by providing access to stacks of infringing content, but I also have issues with a wide range of unsavoury practices - e.g. bankers and in particular insolvency practitioners lining their pockets keeping the wheels of capitalism turning. (This coming from a staunch advocate of the free market!).

The most important consideration at this relatively early stage in the growth of the internet is to ensure it remains free from the undemocratic clutches of any one special-interest group, and that includes copyright owners.

The Digital Millennium Copyright Act (DMCA) in the US and take-down procedures under the so-called Information Society Directive (Directive 2001/29/EC) in the EU give rights holders power to enforce their rights. Such laws prevent clear abuses - e.g. me downloading your book and uploading it for sale myself.

But don't be sucked into supporting the flawed arguments of those advocating an end to copyright, for that will be just as bad, or worse.

I no more want an internet governed by mob law where the entity controlling the largest botnet makes money from delivery of all our entertainment than I do an internet controlled by Hollywood.

See also: Fixing copyright, the solution (or at least a framework to drafting a legislative solution)