--- Upon
commencing on Wednesday, October 3, 2007 at 3:14 p.m.
MR. OXLEY: We
are going to go pretty much directly into the next session. It's on Confidence and Competition in the
Internet Economy.
Stream B is just starting right about now, and Hugh
Stevenson, the deputy director of the Office of International Affairs for
Federal Trade is leading a conversation on Confidence, Privacy and Security.
Now, in this room, we have got the luxury of having a
great conversation which sort of follows the user content creation with
Creation, Access and Competition.
The chair of this panel, editor‑in‑chief,
Intellectual Property Watch, William New.
So make your way over to Session B, for those that are
going, and for those that are staying, I turn you over to the lovely hands of
William.
Go ahead.
MR. NEW: Thanks
very much.
I don't see any reason why we shouldn't begin
immediately. For those of you who are
leaving, you may get ensnared in the interest of our panel.
I'm William New.
I'm at Intellectual Property Watch in
We are a new media method. We are a fusion of blog and traditional
journalism model using creative comments licence. I'm happy to talk more about our project in
another forum or after the event.
Let me tell you a little about the panel you have
today. We have a terrific panel. I can't help, because I'm feeling it myself,
to throw out there that if I'm not mistaken, this is a European, and further,
much further, group and I'm sure it must be at least closing in on, I don't
know, 10 or 11 at night for most of them.
For at least one of them, it's already tomorrow. So I hope we will be lively, though, and I
look forward to a lot of participation from the audience. I think we should not let this opportunity go
by.
You know, a topic doesn't really become, it doesn't
really exist, until the OECD holds a conference on it, in my estimation. We need to address the key elements of these
issues, and these issues for this panel are creation, access and
competition. These are three of the core
issues, I think, from a policy standpoint, from a legal standpoint, from a
consumer and user standpoint and from a business standpoint, and it's going to
be very important that we try to hit the key elements of these topics.
During this short time that we have, I plan to ask
each of the speakers with us, I plan to introduce them before they speak and
ask each to speak for about 10 to 12 minutes, after which we will take
questions. We have possibly some
questions coming in on the web, but we will see about that.
The topic of access, creation and competition is
fairly widespread. It definitely
involves intellectual property rights, but access reaches far beyond that, and
competition could be seen as a business issue as much as a consumer issue and
reaching into technologies and beyond intellectual property rights, so you will
have a wide range of ideas being presented to you.
I couldn't help but throw out one or two quick
anecdotes and then I'm going to move on to the real speakers here. Today, actually, was the conclusion of a
world intellectual property organization assembly. One of the issues there was related to copyrights,
and in that committee they are going to address in the coming year possibly new
proposals, new ideas. I think that this
may be a turning point at the international level for a discussion on some of
the new and other ideas that haven't been addressed on the copyright front when
it comes to access to knowledge, and you might be hearing more.
But a film industry representative at that event told
me, he's still there and he's working hard to try to control the use of their
material that's showing up in user‑generated or user‑created
formats, but many of his colleagues are leaving now to join companies or start
companies that are getting involved in mesh‑ups, and this was sort of the
way it's going for him.
The old models seem to be under some stress, but maybe
there's enormous new opportunities for those models. I hope some of those questions come out
today.
And then I couldn't help but paint two other quick
anecdotal images. One was in the old
days I recall that if you made a home movie with famous brands or borrowing
copyrighted material, your only chance of widespread attention there was with
your family, friends and pets, as you showed it on the livingroom wall. But now, of course, you have the opportunity
or the prospect of massive popularity worldwide should it strike the right kind
of cord. Things have changed.
And the other thing I would point out is we are going
to, on this panel, also address the concept of a generation of people for whom
living in an Internet environment, an Internet‑driven world, is their
only reality.
I recall that my six‑year‑old, I was worried
that perhaps he was behind the curve because he didn't' send his first email
until he was almost four and he was already five before he said, before I
didn't know the answer to something, Daddy, why don't we just Google it?
Anyway, I bring your our panel. We are going to begin with a very
distinguished speaker. We have the vice‑minister
of Policy, Coordination at the Ministry of Internal Affairs and Communications
in
Thank you.
MR. MORI:
Thank you, Mr. Chair.
My
name is Kiyoshi Mori, Vice-Minister for Policy Coordination, Ministry of
Internal Affairs and Communications in
It
is my pleasure to be here at the Technology Foresight Forum on the
Participative Web with all of my friends from around the world, friends who are
among the most influential in the ICT field.
I really appreciate the efforts taken by the OCED Secretariat and
Industry
Today
let me just briefly mention the status of and the future issues facing the
participative web in
Also,
as shown by the graph at the bottom, the mobile phone use, specifically
high-speed Internet use by 3G, that means IMT-2000 is also growing rapidly.
Under
these circumstances, participative web services such as SNS, blogs, on-line
games, and net auctions are also growing. For the development of participative
webs, as in the case of video sharing sites, for example, a Broadband
environment is essential.
As
participative web services increase in quality and quantity their power to
affect the society becomes stronger.
The
benefits of the participative web are as follows:
Firstly,
it leads to glutting of the society.
Everybody becomes able to possess social and economical influence to a
certain extent through the interactive exchange of information. Wisdom of crowds and collective intelligence
may change the society.
Secondly,
it leads to a change in the business model.
User-generated, or user-created contents may well make the market more
user-oriented.
Lastly,
services like SNS and websites that share video clips allow the simultaneous
and interactive exchange of valued information.
They enable the realistic communication and close long distances.
To
expand these benefits of the participative web I think the following issues
will be considered:
The
first issue is an increase of traffic. It comes to a matter of traffic
congestion. I'll explain this in the next slide.
The
second is the need to build a new registrative scheme. Discussions have just started in
The
third is to ensure the information distribution legally. To expand the participative web free flow of
information is important. However, there
is a concern of infringing copyrights or intellectual property rights and
disclosing personal information. And
there is also a concern that illegal and harmful contents are distributed to
the youth. To cope with these issues
appropriate legislative and technological measures should be considered.
Concerning
traffic congestion, I have some data to show.
The left graph shows the amount of downstream traffic of a major
provider during 24 hours in November 2005.
The
right graph is that of April 2006, six months later.
I
can point out four things: First, there was a significant increase in
overall traffic over the six months.
Second,
according to the data of April 2006 its traffic occupancy rate sometimes
reached nearly 90%.
The
third, peer-to-peer, so called P2P traffic -- the colour is red, purple and
brown, was larger than streaming and web surfing -- that is blue and
green. This means that P2P traffic has a
major significant impact on network than streaming and web surfing.
The
fourth, the average P2P occupancy rate increased by 30% at the peak level and
the at 10% at off-peak level for the half year.
Next
shows upstream data. We see that there
was network congestion in both upstream and downstream traffic. And the P2P occupancy rate was higher in
upstream than in downstream. And it is
almost clear that P2P users was a major cause of network congestion.
Maybe
movie sites such as u-Tube and fibreoptics enabled and accelerated the growth
of upstream P2P data flow.
How
should be cope with this problem? The
advisory study group submitted the report to the government on the network
neutrality on September 20th this year.
It covered a wide range of matters on the telecommunication competition
policy. As for the equitable cost
allocation of networks it reported the easing network congestion by the active
us of P2P was a powerful way to make efficient content delivery. It also recommended that in order to keep a
certain level of quality of service of the network some guidelines for a basic
framework on packet shaping should be developed.
As
for the equitable access to network, it recommended to make interconnection
dues regarding energy and developed my MTT and to review the existing dominant
regulations.
So,
we are now planning to do a joint experiment between government and industry on
P2P to find the best way to disperse traffic, and also other necessary measures
will be taken soon.
The
participative web, due to its nature, causes problems out of the traditional
regulatory framework and that close quarters.
To solve these problems I believe it is necessary for people to consider
and cooperate at forums such as the OECD.
I would like, therefore, to recommend two ideas:
The
first point is that we should include program awareness and the policy
challenges in dealing with the participative web in the Seoul Declaration which
will adopted in the Ministerial Conference next June and to facilitate program
awareness in OECD member states and non-OECD countries.
The
second point is that we should continue to hold this forum to encourage future
discussions and to create a global scheme for cooperation.
I
hope that we can move on with the things we have discovered and the
relationships we have built that this forum, and we can build participative
relationships in the future.
Thank
you all for listening.
---
applause
MR.
NEW: Thank you, Vice-Minister. That was very interesting. Thank you.
I
would like to invite Professor Urs Gasser, the Director for the Research Centre
for Information Law at the
MR.
GASSER: Good afternoon, everyone.
Please
let me take two steps back and approach this panel's topic from a slightly
different perspective by reporting about joint and ongoing research project
between the
If
you want to learn more about the project, we're here with a stand.
This project aims to
explore how the first generation of kids born digital, children who don't know
or couldn't imagine a life without Google, live their lives on how they use the
Internet.
So my remarks are more about the question: What kind of issues are emerging once
children got access to the Web, because these experiences in turn will also
affect a kid's willingness to go online in the first place, as we know from
several surveys.
At the core of the lives of digital natives is, to one
extent or another, as Shenja van der Graaf pointed out today, what we discussed
today, an increased level of participation.
In our view, and I believe also in the OECD's view, it
is important to frame participation in a broad way. Participation is not only about creating
fancy mashups featuring George W. Bush or creating your own Web blog or
contributing to Wikipedia. It is also a
story about increased social participation, as we learned today, and social
networking sides, as well as virtual worlds and social spaces are probably only
the tip of an iceberg.
It also means increased opportunities for economic
participation of young people. The key
word here might be young digital entrepreneurs who are coming up with probably
the next wave of cool applications.
Maybe we will have an opportunity to discuss that later on.
And, as we heard in this morning's session, of course
it also means new forms of political participation and activism.
This broad understanding of participation also makes
clear that the challenges associated with the participatory Web go far beyond
intellectual property rights issues and competition law issues. These two issues, especially IPR issues, have
gained so much attention in the past and they are still such a dominant theme
in the room, but I think in the years to come we need to shift our attention a
little bit to other very important issues as well.
In our research on digital natives we propose three
clusters of issues.
The first one is to question how the participatory Web
changes the very notion of identity, security and privacy. This was mentioned in the previous
panel. If you talk to kids, they have a
completely different relation to personal information and a different
understanding what it means to disclose personal information.
Second, the second cluster is about the implications
of the participatory Web for creativity, for creative expression, for free
speech, but also for the business of creativity.
Third, we are interested in how digital natives
navigate cyberspace, how they get their way through billions of Web sites,
how they find the information they are looking for, how they access the
quality, the credibility of information.
The role of governments in these three clusters is
very different from cluster to cluster and even from issue to issue. It may even change over time.
So what we are looking into right now is, how could we
define the role of governments based on a case‑by‑case
analysis? I will give you a couple of
examples.
Today we learned that digital natives have multiple
identities. They have their profiles,
for instance, on MySpace or Facebook, but they also have their virtual
representations in Second Life, and so forth.
All these profiles, these virtual representations are parts of their
identities.
Now, in this area of multiple online identities, we
currently don't see an obvious need for governments to step in and
regulate. However, this morning someone
mentioned that there is probably an emerging regulatory issue there, for
instance to ensure the interruptability between different platforms that
provide identity.
In the area of online privacy, another very important
policy area, we see a clear role of the government in contrast. Probably the role is less about making
additional laws, enacting new laws protecting privacy, but about implementing
and enforcing existing rules about international collaboration and also
harmonization to a certain extent.
In the creativity cluster we generally believe in the
power of market forces and bottom‑up approaches. Innovative business models, as well as new
and more permissive licensing regimes such as creative comments, to name just
one example, are key elements of this bottom‑up approach.
However, there may be a very specific role of
governments at the margins. For
instance, when governments legislate about technological protection measures,
so‑called anti‑circumvention legislation, they may use their leeway
under the different international contracts to create the conditions for a more
participatory environment.
Or when it comes to limitations and exceptions to
copyright, there too governments may play an important role in shaping the
legal framework.
My colleague, Professor Senftleben, will talk in great
detail about the options and possibilities regarding limitations and
expectations in a few minutes.
With regard to information quality issues and the
participatory Web, identified actually in this OECD report, we see only a very
limited role of governance, for instance by providing some minimum quality requirements,
either the ban of child pornography or certain forms of hatred speech, or a
more active role by providing high quality information in the context of
digital service publique.
But otherwise, as far as information quality is
concerned, the emphasis should be on education, on learning, on media and
information literacy.
Here of course the private sector plays a very
important role too. It can make
important contributions.
These few remarks also illustrate certain trends
when it comes to policy issues in the context of the participatory Web on the
one hand side and digital natives on the other hand side.
First, multiple stakeholders are shaping our kid's
online experiences in the future, ranging from peers, parents, teachers,
coaches, the companies and policy‑makers.
The challenge of course is to coordinate the different roles and
contributions of each group of stakeholders.
The second point is the challenges we have identified
and discussed during this day, and will continue to discuss, are global in
scope, which calls for a harmonized legal framework in some instances and in
other instances for other forms of coordination.
I hope we will get the chance to talk a little bit
about the question as to what extent do we want to harmonize legal frameworks
and as to what extent is it a bad idea.
Third, I believe that we need a more flexible approach
in understanding what regulation means in this place. I use the term "regulation" in a
very broad sense. It goes far beyond
command and control regimes.
Someone mentioned today, incentive‑based
regulation which is an important element in the policy mix I think, but the
emphasis in our research is currently education and learning with special
attention to media and information literacy.
I think if we map these challenges and trends it
becomes clear that the OECD's work is increasingly important because I think,
as you pointed out, Bill, OECD has an awareness‑raising function and an
agenda‑setting function and contributes to our understanding of the
digital environment and of the use of the Internet by different populations.
It also clearly plays an important role in
international coordination and harmonization efforts and makes great
contributions to alternative forms of regulations such as soft law by providing
recommendations, guidelines and best practice approaches.
That's it for my side.
Thank you.
--- Applause
MR. NEW: Thank
you, Urs.
I would like to invite Anne Bucher, head of unit for
the Information Society and Media Director‑General of the European
Commission, to give us her remarks.
MS BUCHER: Good
afternoon.
I'm going to take the general question on the role of
governments and I will say some words on competition.
On the role of governments, I'm not going to present a
European Commission line because we don't have one. I mean, what I will tell you is what I tell
my bosses internally when they ask me:
what should we do about participative web?
Basically, if you take that question, my reply is
policy‑makers have largely not anticipated the development of
participative web, they have not anticipated the business models, the size of
the communities, the purpose of the exchanges that take place. This has happened with the current
legislation. This has happened with the
current legislation on IPR, on privacy, on protection of minors, on liability
of service providers.
When governments are confronted with disruptive trends
and with things which change very quickly, it is wise and cautious to try first
to understand the long‑term implications before rushing into legislation
and policy changes.
In the meantime, what you see is that a lot of the
social networking which is happening is basically ruled by self‑regulation,
and self‑regulation has a role to play, and will probably keep a role in
the future development of the participative web.
Self‑regulation is a fairly adequate tool. I mean, if you think, it is able to respond
very fast. It is innovative. If you think of the creative common licence,
it is an innovative way of licensing content specific to the participative
web. It is coping with millions of
users, spread across different jurisdictions, with different legislation and
you can say one thing is that we do not have massive court cases.
So my recommendation is be very cautious before
moving. It doesn't mean do nothing. I mean, there's a certain number of areas,
and it's been mentioned. I mean, I have
heard several advisors and warnings from the audience this morning and this
afternoon, as well, we have to. IPR is
certainly an area where there are long‑term challenges.
The other challenges which we are coping with is the
fact that self‑regulation interacts with legislation, and in some cases
it potentially could raise problems. I
mean, you go on SecondLife. Now
SecondLife has started to give copyrights to the creators under the
I mean, there are some cases, for instance, and it happens
on games online, where users invest a lot of time in defining their identities
and in creating virtual objects, and then suddenly, I mean, they could be
expelled from this community by the service provider just because they are
suspected of having breached the rules.
In that case, they are still on their objects, but they have no right to
use them and they have no system of appeals.
So there are some areas where the legitimate interest
of the users will need to be protected.
But as I said, it's a bit prospective because we do not have real cases,
not that many. Therefore, the
recommendation in the short term is try to figure out what are going to be the
long‑impacts of what we are seeing now as innovations, and then think how
to integrate this into the policy.
As I said, I wanted to say a word on competition. Competition is definitely an area where
policy‑makers might have to step in earlier than they think. The participative web, it's true, it's really
a typical case for network effect. I
mean, if we believe that the value of the network is the square of its size and
if you see the business model relying on capturing advertising income, there
will be continuous incentives for developing horizontal or vertical integration
and further concentration.
We saw it from the beginning. I mean, Yahoo! and Google had a first move
advantage when they developed the business on search engines. They diversified the services available with
the chatting, with the videos, and maybe they will move into IPTV and other
services, and this will carry on.
The way we see it in the European Commission is that
it's not new compared to the other networks' effects we have seen, and we know
that anti‑trust policy has the means of restoring competition. I think, on participative web, I mean, our
first test is in fact already there because last week we have been notified of
the takeover of DoubleClick by Google, and it's one of the first cases of,
really, vertical integration in that business.
So we can rely on anti‑trust policy, and these are rather
classical network effects.
At the same time, I wanted also to say that maybe we
should not underestimate the competitive forces which are also at work in this
area, and I would mention two.
One is the long‑tail argument, and the second
one is the demand of users for open environments. On the long-tail arguments, I think the
long-tail argument definitely applies to the participative web. In
Similarly, you can say that the participative web has
not extended very much yet to professional purpose. I mean, we see some medical communities, some
education communities, but just think of the communities which could develop
with specific interest.
It's not obvious when you look at these communities
that there would be an interest for one or two major players to put all these
communities on one platform to channel, for instance, advertising
revenues. I mean, the logic is not very
strong on this.
The other argument here on the demand of users for
openness, I think we have heard this morning that all this marvellous
participative web exists because they are all open standards and they are open‑sourced. True, but it is not unusual in our
environment, as well, to have had more innovation models which have developed
on the basis of walled gardens.
And the participative web operates on the basis of
walled garden. You belong to a platform
and you exchange your communities within that platform and you are not
exporting your community outside and you are not exporting your profile outside
that platform.
But this is a rather typical form of innovation. And then when the market develops and then it
reaches a level of mass market, there's an increasing pressing of users for
interoperability and for openness. I
think what we have seen in the last 24 months, for instance, on the music
industry, the music download, is quite representative of this.
I mean, Apple has been very successful with the iTunes
Store as an innovative model, but there has been some resistance of the users
to the lock‑in of the model. Now
what you see, you see the competition of the music service providers being
exactly on business models, DRM Free or with other types of DRM, but responding
to the demand of the users to be able to migrate content from one platform to
the other. So this model for interoperability
exists.
And we see the trend
in the participative web happening. I
mean, the technology is there for having open identities, for having social
graphs. Facebook, for instance, has announced that they will make the profile of the
users public. Google will probably
follow. So there is a trend for making
this environment more open, and that should favour competition in the medium
term.
I
see have zero minutes left, so I'll stop there.
I
didn't talk about net neutrality which I think has more important implications
for competition than just the participative web as such, but I assume that will
come in the discussion.
Thank
you.
--- Applause
MR.
NEW: Thank you very much. I wonder what
double-click Google's chances are? I
won't ask you that.
Finally,
wrapping us up before we move to questions I would like to invite Martin
Senftleben, Professor of Intellectual Property at the Free University of
Amsterdam, to join us. Thank you.
MR. SENFTLEBEN:
Thank you, Mr. Chair. Ladies and gentlemen, good afternoon. Welcome to the fascinating world or
intellectual property.
We
already touched upon this issue today, already in the first presentation, when
I remember it correctly. So, I would
like to add some thoughts to the general questions regarding intellectual
property rights, and the participative web.
I
would like to place this issue in a broader context in order to approach
it. In fact, many of the questions that
I discuss now, at the moment, are not necessarily new. From the very beginning when the Internet
emerged, there have been two approaches:
The
first approach saying well, listen, the Internet is a perfect medium for
collaborative efforts for increased autonomy, participation, diversity. So, an instrument of the free flow of
information. And this argument is a
valid one, I submit.
Another
argument was that if we really want to encourage content providers, the media
industry, the information industry, to offer content on-line, then, of course,
we have to offer protection as well, otherwise this will never happen.
And this is a valid argument, as well.
So,
the question here is how to reconcile these two approaches, and the
participative web is just another phenomenon raising this issue another
time.
How
to reconcile the two approaches? I think
participative web is rather about the freedom and the free flow of information
part. So what are potential interfaces
of this new instrument with the protection of IP rights?
To
approach this question, let's first look at the stakeholders, what is at stake
in this context?
First
of all, we have on the Internet, of course, right-holders, copyright holders
are very prominent and then, again, database rights, people holding rights in
databases. And, there, again, we see
that we can't draw a black and white picture.
Platform
providers in the field of user-created content, for example, are very keen on
intellectual property protection when it comes to protecting their
databases. So we can't just say
intellectual property protection is something that is not valid in a
participative web context.
Then
we have lots of trademark issues arising here, as well. I do not concentrate on this one, the issue
gets too complex. I only raise certain
issues like giving the false impression of sponsorship or offering inaccurate
information about certain branded goods.
But, as I said, I don't focus on this issue here. So, this is the side of right-holders.
Then
we have users who want to transform, not themselves, but content, pre-existing
works, material. I submit that these
users are predominantly private users.
And
then we have users who add value to something that is already there. Users that build some new services on
pre-existing work, some material that is there that might be protected by
intellectual property rights, like search tools, content aggragators,
recommendation engines. And, here, we
have also a mix of users. Some of them
might be private users, others will certainly be commercial users.
And
then finally we have platform providers and, as the slide indicates, we cannot
draw a clear boundary line. Platform
providers might, to a certain extent, also end up offering something that can
be regarded as a value-added product.
So, in this sense they are users that add value themselves.
So,
what is the answer? The answer to the
question I raised: How to reconcile the
world, the fascinating world of the participative web with the protection of
intellectual property?
Let's
answer the question step-by-step. The
first group, transformative use. Users
who transform pre-existing material want to know "Can I be sued for
infringement? Copyright infringement,
for example?"
What
are the factors to be considered?
I
think there are three main points to make here:
These
users engage in an activity that is related to freedom of expression and
democratic participation, so we have a very strong human rights underpinning
here.
Then
we have the idea of inter-general equity among creators. In fact, we can say that every creator, every
author, builds to a certain extent upon pre-existing material as a source of
inspiration, or he uses building blocks from something that is already there. So, this idea of inter-general equity also
adds a strong argument.
Then,
finally, as we got to the participative web we have to admit that there is a
promising creative potential out there, a promising creative potential of
individuals who just wait for a platform to offer their ideas, and I think we
should try to use and realize this potential.
And so I think we have strong arguments in favour of saying there should
be copyright limitations.
These
users, transformative users, should be exempted from copyright liability, and
they also have traditional solutions, traditional answers to this problem,
limitations for quotation, parity criticism review. We find that in international conventions
that have been in place for more than a hundred years. So this idea is not new.
I
think what we can do now is to broaden and diversify the already existing rules
in this area. And, also, this idea is
not necessarily new, if we look at the UK Gowers Review, there we find similar
recommendations.
I
want to add another point. All these
limitations, quotation parody, are based on one basic idea, and this is that
intellectual debate takes place. A
quotation necessarily implies that the user adds some critical comment. That he uses the reference to a work as a
reference point. And I think this is the
criteria that should necessarily -- that should in any case be maintained
because this can also help to solve the problem of content quality. So, in order to qualify for this kind of
limitations, users should really make an effort to enter into an intellectual
debate and not just to free write on pre-existing work and not just to engage
in mere copying.
The
second group: Value-added products.
Also, these users want to know is there infringement. And the factors to be considered here,
according to my insight, is:
First,
these value-added products are important engines of competition and
innovation. They create more and more
demand and so they are important players in the field of the participative web.
A second argument is they are important because they help to disseminate information. We see that information is div