In 1963 the Flemish artist Francois Hers proposesd the ‘Protocol‘, a new economical model for the art marketplace. According to his model spectators determine the way our culture develops by commissioning contemporary artists with the creation of artworks. So-called patrons collect money for the financial investment which is necessary to execute the research and development necessary to create a new piece of art. The collaboration between patrons and artists is enabled by mediators who work as producers by managing the contractual relationships as well as the communication between artists and patrons. Based on “cultural and technical specifications drawn up by the patrons, the mediator determines the means of creation and the artist that seems most appropriate to him”. Patrons and artists determine where the artworks will be displayed. Artworks will not be enclosed in museums but “will become the property of the community and will be registered in the inventory of a body close to the patrons, capable of making sure they are looked after”.

I believe the ‘Street Performer Protocol‘ by Kelsey and Schneier is an electronic commerce mechanism which could be used for the transfer of the ‘Protocol’ to the digital space. A necessary requirement seems to be that artists and patrons control the distribution infrastructure that delivers the artworks to the community.

The journalist Declan McCullagh and the lawyer Milana Homsi have published a law review article (2005 Mich. St. L. Rev. 1) in which they claim that a “laissez-faire” policy on DRM would be beneficial both to consumers and the industry.

The policy of the federal government should be neutral toward DRM technology [...] Congress should not side with either large copyright holders seeking laws mandating DRM or the academic and fair use community members who seek laws restricting DRM [...] As long as the government permits it, consumers will be the ultimate arbiter of whether DRM technology is acceptable or not. Consumers may embrace DRM. They may reject it entirely. Or they may reject it initially, prompting media firms to respond with a second and third round of increasingly flexible products.

In my opinion their libertarian view that “the market will decide” is a naive assessment of the situation. Audiovisual content is still in the hands of monopolies on the creation, distribution and the technology for the consumption. In this market proprietary DRM systems can easily shift the balance between the rights holders’ copyright and end-users’ liberties towards the economical interests of the media firms. In a DRM world “contracts override copyright” – either the end-users will accept the license terms or they will not be able to use the content.

The option that consumers may reject DRM initially is blue-eyed (see e.g. Macrovision, CSS). Media firms need to maximize their profits – they introduced proprietary DRM systems and walled gardens of services, networks and devices in order to keep the control over the distribution and re-destribution of digital content.

I doubt that the market alone can move media firms to “respond with a second and third round of increasingly flexible products”. They would risk to lose their control over the value-chains and their profits when digital content is produced and published by independent content creators and traded over P2P networks (e.g. in the form of video blogs).

I fear that media firms could create a stalemate in the development of digital media, using proprietary DRM systems to maintain their old buisness models as long as possible. For this reason I claim that governments should consider to mandate requirements to be met by any DRM system.

The TRU analysis of the DMP is the best example that DRM designers are willing to allow users to express some leeway in a machine readable way. One approach could be that either rights holders issue licenses or governments mandate licenses that enforce the existing exceptions to copyright (e.g. fair use).

However, also independent content creators need to make a living. I predict that independent authors and publishers will be the first to introduce and implement interoperable DRM, because they will need it to defend their business models (e.g. content distribution via file sharing based on voluntary collective licensing) against hositilities of the content industry who will lose market shares in the “couch potato” segment.

DRM

Somebody intending to broadcast HD television asked me

PS small question,: at what stage would I need Sony or Microsoft…

This is not a small question…

Currently Sony, Microsoft and some other big players are the only ones who can offer end-to-end DRM (Digital Rights Management) solutions to make sure that high resolution digital video content will not be used out of the context defined in the licenses which are issued by the copyright owners.

It is possible that you may not need to work with their technology – there are many examples of internet services where the copyright owners either just don’t care about the use of their assets or they license their material under an “internet friendly” license (e.g. Creative Commons) which allows reproduction and re-distribution.

However, usually the rights owners – the artists themselves or their agents (e.g. Corbis) who own the rights of digital reproduction and distribution – do care about what will happen to their assets when you broadcast them to an unlimited number of recipients. In this case you will need to guarantee to the rights owners that the content will be used according to the license terms.

So the short answer to your question is: it depends on the licensors of the content if you need to work with Sony or Microsoft (or some other players). If they license the content under a Creative Commons license your are fine and can use Open Source technology for your television station. If the content owners insist on DRM and make you liable for license infringements, you can’t.

As a consequence, one of your next steps should be to ask the rights owners about the terms under which they are willing to license their content.

The long answer to your question is a bit more complicated and has to do with the standardisation of Digital Rights Management systems, Hollywood studios, major music labels, content distribution monopolies, technology monopolies (e.g. Microsoft/ Intel), political lobbyism and the freedom of art.

As I told you, I am working with some people on a project called DMP to break the technical monopoly on secure content distribution. We have made some major achievements but the technology which will implement our ideas has not yet been introduced to the market. If you are interested in this project have a look at Leonardo’s website.