May 2003
Public v Private Interests.

Public v Private Interests.

As the debate continues in the US about future media industry regulation and the recording industry takes increasingly harsh legal action over the downloading of songs and Internet broadcasters grapple with new digital copyright laws, it seems to us that the issue at the heart of the matter in all these cases -that of public versus private interests - is worthy of an overall examination not just in terms of the separate segments we have already looked at (RNW February 2000 Comment on Whose Spectrum; RNW February 2002 Comment on the effects of royalty charges on Streaming ; and RNW February 2003 Comment on Copyright for the Future).

We put them all together because in essence they are all facets of the same issue - namely a right to exploit a resource that is regulated by a society so as to strike a balance that overall ends up in the public interest.

When the airwaves are the resource most societies think it reasonable to insist on some public return, sometimes via the regulation of content and sometimes simply a financial return for the right to use the resource; the first would apply to most broadcasters, the latter to such uses as mobile phones.

The situation is parallel for copyright and patents where the balance struck is in theory to maximise public return through incentives to innovation through limited periods through which there are returns for the innovation.

In all cases, it is important to strike a fair balance; at the moment we would argue, the public is losing out and could lose even more seriously.

The balance to be struck.

The balance that has to be struck in considering the issues of media regulation and copyright go far beyond the media.

They relate to the very heart of a functioning democracy when it comes to sources of information and the overall financial and physical health of a community when it comes to issues such as copyright and patents: Indeed in some cases the end product is literally a matter of life and death.

There may be a direct or an indirect link in this --for instance irresponsible broadcasting can lead to assault on or murder of people as happened in Rwanda where radio broadcasts incited such murder. In other areas the link is more direct - we suggest, a good case could be made for considering the current system allied with the lobbying power of the big drug companies is a serious factor in contributing to - actively via charges for available drugs, or more passively through areas that are not researched - the deaths of millions of people a year round the world.

Whether that argument can be sustained or not, it is a corruption should financial interests be able to control the debate or legislation and we fear there is too much of a case to be made of such corruption existing: Certainly, were almost any US politician to be judged as Pompeia was, we suspect Caesar would be ordering a scourging rather than a divorce (If you can come up with names above suspicion, please e-mail us and we'll be happy to add a footnote to this page).

This being so, we consider that the absence of mainstream broadcasters cover of issues of media regulation in the US at the moment is either a serious breach of the implicit bargain in allowing the broadcasters to make financial returns from the airwaves or a reason to so change the regulatory framework as to ensure that all broadcasters have to contribute in one form or another to providing editorial cover of important issues not just those items that interest people (as opposed to affecting their interests).

Where should we go?

Let us suppose for a moment that our fears are totally misplaced and that the extensions to copyright that have been made, the way in which patent law is currently applied, the pressures from the World Trade Organisation (WTO) for countries such as India to clamp down on the production of generic drugs, and further media deregulation are all positives for communities as a whole around the world. If that is so, where should we go?

We would suggest guidance could be taken from the very legislation that is currently forcing a re-examination of US media regulation. Every two year, according to the US Congress, it is reasonable that all regulations should be reviewed and each rule justified or it should fall.
We think the two-year period is too disruptive but the principle does seem to have a lot going for it. We, however, think the process should be a two-way one.

Our proposal would therefore be that every five years public hearings should be held to determine whether on the criteria of overall benefit, an existing law should be changed but that industries should be under as much pressure to justify rules that benefit them as regulators are to justify their regulations.

The aim behind such a proceeding would be to ensure a proper balance of interests is maintained in changing circumstances and to do this, it would be necessary to ensure that the power of vested interests and money are not allowed to squeeze out less powerful or well-financed points of view.

The implications.

Although on the surface a regular re-evaluation of benefits of a law as suggested above might seem not that big a deal - and presumably the same was thought when the FCC was mandated to carry out a biennial review of its regulations - we feel it could be a truly revolutionary change in many businesses.

Let us suppose, for example that the book publishing, software, or recording industries have to justify current copyright laws but a counter-argument is made based on a benchmark of the period within which 75% of the books/software/recordings that have been put on the market become unavailable and stay unavailable.

Let us further, for argument, set this period at five years (a quite reasonable period for the initial sales that make up the bulk of most of the income related to such items) thus leading to a situation where these items are effectively made unavailable to the public. On this basis it would seem a reasonable position to argue that, rather than benefiting society or authors, the current copyright law works to their detriment.

The logic would thus be that copyright should end five years after publication ceases, albeit for example any public library royalties paid (as is the law in some countries), could still continue to be paid to the author.

With modern technology it should then be possible to set up a suitable world library web site and insist that the publisher provides the information to allow the book/software or music to be posted on the Internet by a relevant government body for free non-commercial use (Providing a book in electronic form as well as a hard copy to a national library would nowadays be a reasonable requirement of any publisher).

The same principle could easily be applied in other areas - drug companies whose spending on marketing had leapt and who had merely updated existing drugs and could thus not justify their retention would lose patent rights on the original thus permitting cheap generics to the vast benefit of the world in general; software manufactures who stopped supplying a product would have to put it in the public domain and retain copyright only on their latest version (which people would no longer be forced to use to the same degree) and broadcasters who lost the case where it was shown that in a specific market too much concentration had been to the detriment of the public would automatically see some of their licences revoked.


We would not even begin to argue that we had all the answers but do feel that the debate is necessary and is currently not getting the attention it deserves.

We also suspect to a large degree that this is because of the vested financial interests of many current businesses, that quite a number of them through the way they lobby corrupt politicians to varying degrees, and that it is to the longer-term detriment of both societies and businesses.

The question arises therefore of what you think? Please E-mail your comments.

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