Saturday, April 05, 2008

Intellectual Property - 101

Today I was again working for the shrill, panicky girl from the leading Chinese educational publisher who caused me such aggravation the other day.

It was a similar kind of deal, a promotion for some of their English teaching books - but this time a public session in a city bookstore rather than a closed seminar with university students.

About 30 seconds before I was due to go on and do my thing, she told me they were going to film the entire presentation.

"Oh no you're not," I said.

She tried to tell me that this had been arranged in advance with the British education company which had hired me for the gig. This turned out to be a LIE. She then tried to persuade me to relent by telling me how much money it had cost to hire a professional camera crew for the afternoon. I was unimpressed. She then tried to explain how useful it would be to have a permanent record of my teaching they could use with their "excellent students". I was even more unimpressed. She even said she would be willing to negotiate an additional fee with me (after the event - yeah, right!). But I was incorruptible.

Look, lady, I make my living giving presentations like this. People pay me good money to do it because I'm good at it. If you have a bunch of other people who you think would benefit from seeing my presentations, then pay for me to come and present to them live. Or, if you want to make a film that you can show in lieu of a live presentation 100 or 1,000 times...... well then, you'd better be willing to pay me 100 times what I make for delivering a presentation. If you're really prepared to talk about that kind of figure, then maybe we can do business. But understand that this would be only if I were working for myself, using my own material. Today I am representing a famous British education company and my presentation will be based on a set of PowerPoint slides which are their copyright. Filming my presentation and these slides is an unauthorised form of copying and would breach my employer's copyright. Therefore, you will please remove the camera - before I begin the presentation.

Update: A "genuine misunderstanding"? A one-off aberration? Well, maybe. I do try to be as tolerant and forgiving of these episodes as I can be.

But on Sunday morning, I was giving a teacher training seminar in a small university and exactly the same thing happened.

The level of naivety - or is it just sheer bloody front?! - of the Chinese about IPR is quite staggering at times. It just does not compute with them at all.


The British Cowboy said...

Hello Mr. Kettle. I'd like to introduce you to Mr. Pot. Why yes, Mr. Pot, Mr. Kettle is rather sooty.

Froog said...

Yeah, yeah, yeah - I knew you'd chip in on this one, Cowboy.

I think there are a number of potentially significant differences between this and the pirated Hollywood DVD situation.

1) I have more respect for the sanctity of an individual live performance. I think you should try to to restrict unauthorised recording of live performances. That is a rather different animal from the further copying of already recorded material.

2) I still have the control. I have suggested to you before that the theoretical basis of 'intellectual property' is somewhat muddy and malleable - and does in practice ultimately depend, as with real property, on effective degree of control. My view is that it is vain of music and movie companies to complain about people copying their product when they don't have any effective means to prevent it.

3) Questions of scale may be relevant here too. I argue against the bitching of the movie companies on the piracy issue largely because I think that (at least in China) it's not really harming them all that much; in fact, it is bringing them a lot of indirect benefits; and I think it's a battle they could win for themselves in the market place if they were prepared to get their hands dirty and sell at or below cost for a while to build their market share. It's harder to divine any indirect benefits for me personally in the presentations case (or even for the large English organization I was representing), or to justify risking short term losses against longer-term benefits. I'm just not operating at that kind of level, don't have the financial resources to take that kind of risk.

So, I fight battles that, I feel, are justified and winnable.

The movie (and record) companies ain't. Even if the casus belli is broadly the same.

The British Cowboy said...

Well I would hate to disappoint you by not commenting...

I have always todl you I have little problem with piracy, as long as people admit that what they are doing is theft. I just find it very amusing (and I am not accusing you of this, though you do walk very close to it) when the people who defend Napster etc would dress up what they were doing as for the benefit of music, or really in the interest of the musicians etc. Come on man! You wanted free music, and you took it. It's like students sitting there thinking they are smashing the state by smoking dope. Nope - you are getting high. Enjoy it for what it is.

What about the sanctity of a recording of a live performance? Is that any different?

Interestingly enough, given the case I am working on at the moment, your suggestion to the film companies, to sell at a loss to build the market, quite possibly may bring down a shot storm from the various competition bureaus around the world, as it runs headlong into antitrust law. Moreover, what happens in many countries to the local film industry if the market is flooded by cheap, shoddy, Hollywood flicks?

Though, without piracy, we would not have "Do not want!"

Yes, the situations aren't analagous exactly. But, in the end, did you expect to be allowed to bitch and moan about your own intellectual property rights without having your nose tweaked about the many times you have been somewhat cavalier about those of others?

Froog said...

I don't think we have any anti-trust law here - makes life a lot simpler. I don't see that that kind of consideration should be a problem where there is a limited number of producers all selling the same product (at the same price). In effect, price-fixing happens in the CD and DVD markets anyway; but I don't object to price-fixing cabals where they're agreeing to keep the prices low - and particularly where they are doing so to eradicate illegal competition. You'd have to make sure that any legitimate competitors were safeguarded.

The local film industry ain't worth much anyway - but I would guess that legitimate domestic DVD producers would have even more to gain (proportionately) than Hollywood from stamping out the piracy - although they'd probably demand some sort of subsidy (or help with production, distribution, marketing locally - or maybe a sweeter deal on overseas distribution) from the big boys before they'd play ball.

I don't honestly give too much of a toss for the UK company's IPR - but they probably pretend to, and when I'm working for them, I feel I ought to pretend to as well. It's more a question of ethical duty as an employee rather than ideologically supporting the principle.

I think in practice - at least in China - they are too lazy or disorganized either to defend their IPR or to aggressively market for more live presentation opportunities; if there's any loss to themselves, they don't really seem to care (they are nominally a non-profit outfit); and any loss to myself is largely imaginary.

I guess my view here (desperately trying to salvage some consistency of outlook) is that any business that markets unique creative output can only expect to control a certain amount of dissemination of that output - and should thus maximise its control, and its profit from, the first recording of that output, the initial wave of distribution, and any associated peripherals that may be easier to control the sale of. There is no way to restrict second and third and fourth order copying - so it's fatuous to try. And IP law, which is founded in business practicalities rather than abstract principle, ought to recognise that fact.

In most cases, I don't think recording live performances is that bad - particularly for musicians (but for all forms of performance, to some degree) each live performance is a little different, and most fans have a very large - almost limitless - appetite for them. And there is a special magic about actually being there. Even seeing a full-length professional quality bootleg is not going to stop many people from wanting to see a show themselves (and a crappy 2 or 3 mins of bouncy camera-phone video on YouTube certainly isn't). Quite the reverse: it's likely to inspire more people to want to go.

I'd like to think that is partly true even of me, but..... well, I don't quite have that sort of reputation; and I'm not in such a glamorous business. With what I do - education - the value of the presentation/seminar/workshop is mostly in the content, and that can be rather too easily replicated. So, I need to make damn sure I exercise control over an initial recording (and, if it were possible - though it's probably not - the initial round of copying and distribution).

For me, this incident was essentially about my rights as a performer (not so much about my employer's rights as an owner of abstract IP). If you want me to perform to a roomful of students, that'll be 1,000 rmb. If you want me to perform for a film camera, that'll be 50,000 rmb.

The British Cowboy said...

Yes China does have antitrust laws - and anyone dealing in international trade has to consider them. The Problem you talked about wasn't price fixing, but predatory pricing - charging less than cost on a unit. While there is obviously a lot more to it, that pricks up the ears of the regulators enough to be a generally bad thing.

It wasn't so much the Chinese film industry I was considering - more along the lines of the French, for example. And the French (and Germans) have a very different view of IP law, which is far more esoteric and less practical than the UK-US model.

Anyway - just as it is the problem of the movie companies for not making their wedge on the first recording, realizing this is going to happen down the line, isn't it just your problem for not negotiating the right price in the first place?

Froog said...

Yes, that was my point exactly. The problem here is that nobody is willing to pay shit for talent.

I don't think I'd let anyone film me doing this kind of event for less than a few thousand US dollars; I doubt if anyone in China would be willing to pay me more than one or two hundred.

Tulsa said...

um, i was going to comment that China does have anti-trust laws, but TBC beat me to it. I guess I'll just validate his comment and continue to enjoy the show.

Please, Froog, TBC, continue.

Anonymous said...

Are we not missing the rather obvious point that whereas video piracy et al. are somewhat anonymous (nay 'victimless') crimes, only the Chinese would think that they could do it in the physical presence of the owner of the intellectual property rights in question... and expect to get away with it?!

That really is rather thick-skinned by our self-effacing 'western' standards is it not?