Having arrived from Dublin the night before as part of a triangular journey (Stansted-Dublin, Dublin-Edinburgh, Edinburgh-Stansted), I was first up on Tuesday morning with my own presentation.  This time around, my topic was What We Talk About When We Talk About Google (or WWTAWWTAG as it is in my notes).  The idea for this presentation came from earlier (and as yet, incomplete) work on the Google Books case, and how it seemed to come at a time when Google’s treatment by politicians, NGOs and academics was in a state of flux.  Google is also involved in some of the most controversial media and technology policy issues on the table right now, everything from net neutrality to privacy.  So it seemed interesting to dig a little deeper. My presentation (which you can download here as PDF) was therefore an attempt to explore the question in the title in a number of different ways.  For example, I looked at the ways in which both courts and parliamentarians in the UK refer to Google – and compared that with a sample of news coverage, finding not just some differences (with the parliamentary discussion still focusing on Google as a general resource for search) but also some interesting internal differences within the media (in this sample, the Daily Mail / Mail on Sunday got very upset about Google Street View).  I also illustrated the different faces of Google through various parodies/cartoons produced by others, and talked about the various friends and allies that are found in Google’s public policy activities, and the result in the Viacom case.  I do hope to do some more detailed work on this, as it was more interesting (to me, at least) than I had thought.  Curiously, it also drew quite a lot of good laughs, with Ray Corrigan giving it a joint comedy award.  This is not my usual territory.  I don’t think my students would write ‘stand-up comedian’ on their feedback forms.

Luckily, the following presenter, Trevor Callaghan, had genuine claim to the comedy tag, with a discussion of Google and social networking.  It was a really through and unquestionably unprintable exploration of the topic, made more lively by the use of Prezi and diversions into broader issues of data, identity and privacy.  It’s really interesting how he was able to get a sense of what Facebook’s business and cultural models are, and how they differ from other players often grouped alongside them.  The final presentation in that morning session was another Gikii serial offender, Andrea Matwyshyn.  Her presentation looked at issues of authorised access, with a particular focus on the US Computer Fraud and Abuse Act (CFAA) and similar legislation.  Her key arguments were the divisions between criminal and civil issues (in particular, the role of contracts and terms of service), and she mentioned a number of key US decisions (such as the Lori Drew case and Register.com v Verio) and the problems stemming from then, including a pretty obvious circuit split (e.g. the difference between IAC v Citrin and LVRC v Brekka).  She questioned the purpose of the CFAA and other legislation and whether it was meeting its aims.

The second session had yours truly in the chair, and it included a range of papers on the broad theme of intellectual property:

• Steven Hetcher, “Conceptual Art, Found Art, Ephemeral Art, and Non-Art: Challenges to Copyright’s Relevance“.  Steven’s talk (from a US point of view) considered the ‘discrimination’ against forms of contemporary art that, being ‘unfixed’, are not within the common concept of copyright law as based on fixation.  In some cases, the work is the process, with no fixed object … although if unfixed art is to be protected, does this raise questions of artistic merit as an alternative mechanism for delimiting the reach of copyright?  With a wide range of slides (including a Damien Hirst shark sighting), there was also time to talk about Christopher Lowry’s work as discussed in Satava v Lowry, a 2003 case.
• Gaia Bernstein, ”Disseminating Technologies“.  This paper was an attempt to go beyond the rhetoric of ‘IP wars’ and to discuss the acceptance and dissemination of new technologies.  It builds on the author’s recently-publisehd work on innovation (e.g. here).  She traced the differences between approaches to technology in the cases of copyright and patent, and the interaction of both with competition.  She put forward an argument that the user’s role was not given the treatment it deserves, and subsequently pointed to a number of situations of market failures where (due to network effects or the importance of time) specific intervention was necessary.  Really interesting stuff, and bonus points for talking about Minitel.
• Christopher Lever, ”Netizen Kane: The Death of Journalism, Artificial Intelligence & Fair Use/Dealing“. The third paper used some very creative metaphors and images that were both botanical and big-screen (Citizen Kane), with an introductory discussion of the future of newspapers and journalism and the relevance of fair use and fair dealing giving way to a critique of the failings of DRM and a thorough analysis of the work of Ozlem Uzuner on digital fingerprinting and unique expression.
• Chamu Kappuswamy, “Dancing on thin ice – Discussions on traditional cultural expression (TCE) at WIPO”.  The final presentation in a very busy session.  Her presentation provoked a lively online and offline discussion on what constitutes TCE in a British or Scottish context, but also offered some valuable points on differences (even where in apparent agreement) between the approaches of UNESCO and WIPO and between traditional knowledge (often patent-related) and cultural expression (often copyright-related), and the links between international legal efforts regarding TCE, folklore, and intangible heritage.

The afternoon session included an even wider range of presentations. Simon Bradshaw & Hugh Hancock talked about (and created live before our very eyes) the prospect of interesting legal issues pertaining to machinima, suggesting that the ease with which this type of audiovisual work can be created will continue to be a fertile one for legal action and academic analysis (not least the prospect of issues around new provisions in the Crime & Policing Act 2009).  Ren Reynolds (with Melissa de Zwart, who wasn’t able to join us in person) talked about online games, statutory regulation of such in Korea, analogies (and case law) from physical sports like rugby, and the relationship between the rules of the game and other laws and rules, and the contract/license distinction.  The last presentations zoomed out and looked at  developments across disciplines: Abbe Brown (presentation here) reviewed the various issues, forces and actors in Internet governance and international cooperation (highlighting different approaches and parallel debates), while Michael Dizon (presentation here) presented a post-Lessig/(Andrew)Murray analysis of ‘the network is the law’.

Also, we had cake.  And that’s it about Gikii for this year.  Don’t forget to download the presentations…

Though Mr. Berlusconi himself — the man, oligarch, tabloid personality and plastic surgery victim — has undeniable entertainment value, Mr. Gandini is more interested in what might be termed the Berlusconi effect. What he’s after is Mr. Berlusconi’s impact on Italian culture, specifically those for whom celebrity is power. Which is why, by accident or design, “Videocracy” ends up holding a mirror to the larger world.

I know that those who care about cartels have The Informant (or, The Informant! as it became! when it transferred! to the big screen!), but media ownership can be fun too. On the strength of the IMDB listing and the official site, it’s still early days, having been shown in Sheffield in the UK last year, and coming up soon at the Dublin International Film Festival in Ireland on 27 February (not much use to me, but I know I still have a fair share of Irish readers). Any chance of a wider release? Here’s hoping. Clips and more all found at the official site.

The talk was divided into five major sections: the idea of dual use technologies, a review of the case law, a discussion of the relationship between creativity and innovation, an argument regarding three asymmetrical issues, and a case for the benefits of P2P and similar technologies.

I’m going to assume that readers are relatively familiar with the first topic (a description of how P2P works) and with the inglorious history of cases like Napster, Aimster and Grokster. Carrier criticised the direction of these cases, reserving particular criticism for the idea of inducement as seen in the Supreme Court’s opinion in Grokster. For the third section, he touched on these points: alternative reason for the apparent decline in CD sales, alternative remedies (to secondary-infringement litigation) such as direct infringement cases, legislative lobbying and technological protection measures, differing concepts of creativity outside major record labels, and – crucially – the role of new technologies as disruptive innovation creating or contributing to new markets.

The next section dealt with what were argued to be three asymmetries, innovation, error cost and litigation. Taking them in order, the discussion of innovation suggested that the less-tangible non-infringing uses (and associated business models) lose out to the heavily emphasised perils of the infringing use; the error costs, borrowing from competition law, in this context highlight the cost of a potentially erroneous decision to stifle the new services; in terms of litigation, this is a particular problem when new entrants lack the deep pockets of incumbents for protracted litigation.

In conclusion, Carrier pointed to the possible benefits of P2P, mentioning again the possible move away from established industry ‘tastemakers’ and the efficiency of BitTorrent as a distribution method, but also referred to ideas like P2P search as an alternative to Google’s strong position. A very lively Q&A included the idea of dual-use technologies as a platform for free expression, problems with policy-making and regulatory capture, how to define innovation and creativity, quantifying the error cost of the ‘wrong’ decision, the differences between music and movie industries, and the ability of market leaders to be both incumbent and insurgent. It was an interesting argument, possibly easier to apply in the case of the music industry than others, but with useful illustrations of the relationship between IP and antitrust/competition law and the ultimate purpose(s) of copyright legislation. However, it is also quite the reminder how far the current parliamentary debate in the UK on the copyright provisions of the Digital Economy Bill is from the various provocative ideas that have been circulating in the academic side of copyright for quite some time now.

Here are two papers with a legal theme that caught my eye:

In ‘What’s wrong with media monopolies?’, Prof. Steven Barnett of the University of Westminster unpacks the idea that media concentration is ‘wrong’, including a good history of media regulation in the US and UK. Assessing the current trend for media enterprises to call for the removal or modification of ownership restrictions, and also various schemes proposed by Government and Opposition, he considers the idea of focusing on content regulation rather than structural regulation, and focuses on the promotion of ‘watchdog journalism’.

Lawrie Hallett (Westminster) and Deborah Wilson (Lincoln) presented a very thorough paper on the regulation of community radio in the UK. This is something quite close to my own heart, although I haven’t written in the area of radio regulation yet (I’d like to). Hallett and Wilson’s paper includes a discussion of the relevant statutory provisions, a consideration of the possible divisions within the sector and occasional tensions between the BBC and community stations and a lot of information on sub-statutory processes (especially Ofcom licensing).

And finally, quick impressions of some other papers. Dhiraj Murthy’s paper on Twitter is right up to date, with a discussion of the various uses of the service that raise broader questions, and also a very handy bibliography for this developing area. There are also a number of studies of individual jurisdictions outside of the UK. Shashwat Goswami considers the development of policy in relation to health communication in India, Opoku Ernest of the Ghana National Media Commission assesses both constitutional provisions and journalists’ ethical codes, including a presentation of the work of the Commission itself.

The article in question is about the Evening Standard, which is in the process of switching from cover price to free distribution, reaching what is referred to as a short-term deal for the use of the ‘bins’ in London railway stations (mainline stations like Waterloo, Euston and Liverpool Street, not Tube). These familiar structures are used for the Metro newspaper in the mornings, and will now contain free Standards (instead of the much-missed London Paper) in the evening. They’re apparently owned by Network Rail (which operates these stations) and have been the subject of a tendering process in the past, according to this 2006 Guardian article (written in the olden times before the now-abandoned thelondonpaper hit the streets). As far as I know, the Evening Standard has an existing separate deal for paper-sellers setting up inside Network Rail-owned stations, but presumably the bins are important as as part of the new model, they can simply stack piles of papers there and allow them to be picked up by customers as they pass through the stations.

There’s a lot of law here, too; one of the most interesting ECJ decisions is about a newspaper distribution network (Bronner v Mediaprint, which I have cited on a number of occasions, though there’s a lot more work that could be done on that topic), and the London bins (which were first the subject of an exclusive agreement with Associated Newspapers, who ran and run the Metro paper in London) have been the subject of an OFT investigation between 2003 and 2006 (see here). Indeed, the resolution of the OFT involvement was to allow others to bid for the ‘afternoon’ slot. I’d rather see a range of newspapers available from the bins, especially as the bins are in many cases provided under the auspices of public bodies (Transport for London) or quasi-public bodies (Network Rail). I appreciate that the distribution deals are useful revenue-generators, but there are plenty of opportunities in railway stations to monetise the eyeballs (or insert your own favourite marketing prhase), and there may well be a way to raise useful revenue while also facilitating a range of newspapers. That is, if the free newspapers survive! The other dimension, of course, is that the Standard is no longer owned by the same company that owns the London version of Metro; if it was, we’d probably be back to square one. Associated Newspapers continue to publish London Lite (without access to the station facilities), so there are interesting times ahead.

Although the report is dated June 2008 (and it is clear from the text that this was the Minister’s requirement and the Group’s successful completion date, with the substance being leaked on the day after publication, July 1st), I was beginning to wonder if it would ever see the light of day – but here it is, published (press release here) on January 2nd (though annoyingly lacking in either a contents or index page).

Though disappointed at the delay, and sceptical as a result of the prospects for legislative change (releasing it on that date after a 6-month delay seems like damning with faint praise – though on the other hand this may mean that the Cabinet has agreed to it), this is a good report – and would be, if translated into legislation, a significant improvement on the status quo, and indeed would (I think) bring Ireland from having little protection of pluralism to having a powerful and effective system of controls. It’s not quite lighting up the blogosphere yet (!), but there has been some coverage in the Irish Times , Irish Independent, Irish Examiner.

The main finding of the Group is that there should be a statutory definition of media pluralism, and a revised method of scrutiny for mergers (the Competition Act procedure, where there is mandatory notification to the Minister (for a decision based on factors other than competition law) but little by way of guidance for how this would actually proceed in practice. Of course, the 2002 procedure hasn’t actually seen any cases called in by the Minister yet (which continues to puzzle me).

On the familiar debate on where responsibility should lie for this question, the Group leaves little room for doubt:

The Group is of the view that competition policy is not meant to fulfil the function of protecting the public interest in plurality and diversity. There will be cases where that public interest will need to be protected by a different mechanism.

There is even some consideration of the problem that, having accepted that it goes to Government, which Minister makes the call. The solution they come up with is keeping it was the Minister for Enterprise, Trade & Employment, but with a statutory duty to consult the Minister for Communications [Energy & Natural Resources - or in one amusing typo, p 61, 'Natural Recourses'] on broadcasting cases.

The heart of the Group’s argument is expressed in proposed definitions (which, while not using the language of internal and external pluralism, would be recognised by aficionados of this approach) (extracted and reformatted by me below) :

Statutory Test: “Whether the result of the media merger is likely to be contrary to the public interest in protecting plurality in media business in the State.”

“Plurality of the media includes both diversity of ownership and diversity of content.”

“Diversity of ownership means the spread of ownership and control of media businesses in the State amongst individuals and other undertakings linked to the market share of those media businesses as measured by listenership, readership or other appropriate methods.”

“Diversity of content means the extent to which the broad diversity of views and cultural interests prevalent in Irish society is reflected through the activities of media businesses in the State, including their editorial ethos, content and sources. “Views” includes but is not limited to news and current affairs.”

Two research projects commissioned by the group are also included: one with a focus on data and one comparative study across various jurisdictions – and a report by colleagues (and predecessors) at the University of East Anglia for the Competition Authority [Shaun Hargreaves-Heap, Andrew Scott (now at LSE), Alexia Gaudeul and Pinar Akman] is also mentioned (and the executive summary published by the Competition Authority in its submission). Their idea of a ‘media map’, originally expressed as of assistance to the Authority, is certainly reflected in some of the Group’s recommendations.

It’s a wide-ranging report with, and I’m struggling to find a nice way to say this, a wider range of cited sources than what is typical for reports of this nature – including much of the relevant academic literature. On a tangential matter of particular interest to me – there’s a sensible discussion of how ‘media business’ should include certain types of Internet content – although I’m not sure having one operational definition of broadcasting for the purposes of merger control and another for the Broadcasting Act is entirely feasible, particularly as the Broadcasting Act itself will need further consideration in order to transpose the AVMS Directive.