Bryan Ghows, For The Straits Times

Access and education key to IP protection

There will always be some who will never pay for digital content, even if it is practically free. -- PHOTO: THE NEW PAPER FILE 
There will always be some who will never pay for digital content, even if it is practically free. -- PHOTO: THE NEW PAPER FILE 

THE recent furore over Dallas Buyers Club is not new. In 2007, there was an uproar over similar actions taken out by Odex against members of the public for downloading anime. In the 1990s, there was similar outrage.

Looking back on the last 20 years of enforcing intellectual property (IP) rights, six key themes are apparent:

  • It's hard to beat free;
  • Convenience and speed trump all;
  • Technology wins;
  • There is a lack of education on the value of IP;
  • IP rights holders tend to be heavy handed in enforcement; and
  • IP rights holders have better ways to improve profits and reduce piracy than resorting to legal action.

1 It's hard to beat free

There will always be some who will never pay for digital content, even if it is practically free. However, the financial success of numerous digital content providers shows that many are prepared to pay a reasonable fee for content, provided that it is easy to purchase, available on demand and on the device of their choosing, and accessible 24/7.

2 Convenience and speed trump all

Legitimate platforms like Netflix, Apple TV and Hulu have been developed to deliver content on-demand across most devices. Their pricing is affordable and reasonable for a large consumer base who would prefer to do the right thing and pay rather than risk the consequences of piracy. There are many who would prefer paying for a legitimate copy of Dallas Buyers Club - US$14.99 (S$19.80) on iTunes - than risk legal action by downloading a copy.

Yet, Singapore consumers find many obstacles in jumping on this bandwagon. This is due to sophisticated licensing networks limiting local distribution. Anyone over the age of 20 will remember how popular TV shows were shown when they ended their run overseas. Likewise, many movies were released weeks, sometimes months, after their US premiere.

But as Singapore consumers became increasingly unwilling to be patient, piracy came in to fill the gap. To their credit, movie distributors now release major movies on the same weekend as their global premieres. Likewise, StarHub and Singtel release certain TV episodes within 24 hours of the US.

Despite these small victories, in a culture where information is available on-demand, there is a conspicuous void here. In the US, you can watch almost any movie on-demand on Netflix or Hulu. Why are we denied this service? Presumably because rights holders have placed restrictions on Hulu's distribution. I can set up a VPN to spoof a US IP address, but why should I go through the trouble and expense? Shouldn't rights holders take proactive steps to broaden their licences when there are consumers willing to pay?

3 Technology wins

The digitisation of music destroyed the music distribution structure I knew as a teenager. Titans like Tower Records and HMV succumbed to the digital onslaught. However, digitisation also opened up an infinite range of music previously unobtainable in Singapore. Steve Jobs had the market force to change music distribution with iTunes. Spotify changed the game further with its "freemium" music streaming service.

These did not happen without massive resistance from the music industry, but technology placed in the hands of consumers always wins. It's better to get some money through legitimate licensing than no money because of piracy.

4 Lack of education on IP

Content creators need to make a living and piracy has the potential to deprive some of a livelihood. One movie download may not significantly impact a studio's revenue, but when replicated multiple times, it severely damages the industry ecosystem.

5 IP rights holders still tend to be heavy handed in enforcement

Having had the experience of suing many infringers, I firmly believe legal enforcement should be limited to the minority who consistently do not respect the right of creators to earn a living.

Making examples of individuals who are not hardcore infringers tends to undermine and distract from the argument that IP should be respected. In recognition of this impact, a "three strikes" law has been implemented in some countries and reflects the "proportionality of punishment".

Threatening a fine "not exceeding $50,000 or to imprisonment for a term not exceeding three years or both" is sub-optimal if the educational groundwork has not been laid and is not targeted at persistent "offenders".

6 There are better ways

Rights holders of digital content need to re-think their business models. IP blocking and legal enforcement are little more than a finger in the dyke when technology is constantly evolving to bypass these efforts.

In short, I advocate for a more nuanced and graduated approach in protecting IP rights in Singapore and request rights holders to make available more digital content at a reasonable fee.

The writer is a lawyer in private practice focusing on intellectual property and technology matters.

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