Future Gazing about the Internet and the Web

August 31, 2004

The Future Gazing Panel covered a lot of ground from varied perspectives. But certain themes did emerge. Laurie Kaye’s personal view of the ‘top ten’ is as follows:

§ The Internet becomes just one part of the ‘always on’, IP protocol based, end-to-end network delivering content to a range of user devices.

§ The division between ‘public’ and ‘private’ areas on the Web becomes more sharply drawn.

§ Paid for, commercial services will continue to develop.

§ In the non-commercial world, tools such as the licenses and technology offered by ‘Creative Commons’ (see below) will be used by those happy to share their creative material with others to enable new works to be created.

§ Use of ‘peer-to-peer’ file sharing will be reclaimed from copyright piracy for its original purpose as a great way of sharing and building knowledge.

§ Digital rights management will gain consumer acceptance for certain types of paid-for services.

§ Consumers will regard their privacy as a form of intellectual property, willing to trade it in some cases, but not others, for particular goods and services.

§ Voluntary Codes, such as those governing ‘Notice and Take Down’ procedures, will continue to develop and become ‘de facto’ law.

§ Content is King – one way or the other. In the commercial world, content is never free. In some cases, it will be paid for, in others it will be used to subsidise sales of user devices. In the non-commercial world, creators will share their content on whatever terms they choose.

§ Finding practical and acceptable ways of verifying user identity becomes one of the key challenges for service providers.

The following summaries have been provided by all the Panellists.[1]

Andrew Yeates: Future Gazing

When asked to comment about the future of the Internet and the World Wide Web, it is tempting to announce that the future may well be here.

We know that increasing numbers of people around the world are accessing information and data of all kinds over an increasingly diverse range of services. Cannot the next 5 to 10 years just see more access and more services to keep people happy?

I do not believe so. Scratch below the surface of enthusiastic announcements over increased broadband adoption and the importance of getting the public online to deal with services from banking to completion of tax returns or claiming benefits and it is easy to see how the tensions between accessibility and the need for those who provide services in the online environment to receive a return on investment could lead to any number of developments over the next 5 to 10 years.

I have chosen to focus on three areas where I believe it is important that everyone involved works to get right – if we are to make the most of the opportunities offered by online technology during the next 5-10 years.

§ Getting public opinion behind the economic reality that services and goods available online have to be paid for either directly or indirectly, if the services are to continue to operate and develop to meet customer needs.

§ Developing legitimate services which provide for returns to be paid to rights owners and investors in infrastructure in a cost-efficient and consumer-friendly way.

§ Managing customer demand for regulation of the services which they choose to access at the appropriate level.


From the music industry perspective, getting people to appreciate that theft of music is causing real damage to the industry has not been not easy.

Record companies are essentially marketing companies. They promote their recordings and artists. In their success they create famous people who are perceived as being wealthy beyond the dreams of most. The public do not see or have reason to appreciate the real economics of the music business.

A parallel is perhaps that people do not generally think about how much it costs to produce an episode of Coronation Street. They may well believe that the stars are being paid the (generally inflated) sums quoted in the tabloid press – but a real understanding of the total costs involved is just not a reality.

This generally means that any arguments over people making unauthorised copies of works – or dodging payment of online subscriptions – face a public who :

either do not think that they are doing any real harm because all the people involved are so wealthy that they can afford not to notice “a little theft”;

or – despite realising they are probably doing wrong – believe that the chances of being found out, or punished, are so remote that it is worth taking the risk.

Online developments should mean that there are more job opportunities for creative people in the UK, not fewer. But this will happen in practice only if we change perceptions so that

(a) people realise that theft of music or other unauthorised use of copyright works – will mean that money is taken out of the hands of artists who depend upon being paid so that they can continue their work; and

(b) people know that they do run the risk of being found out and punished.

The BBC has fought hard to make people aware of the criminal nature of licence fee evasion. Even this raises political issues about the importance of public service broadcasting being a public service for all while cases are brought against those who face genuine hardship over payment of the Licence Fee. But these cases are a minority. We need to follow this lead and build awareness that action can and will be taken against individuals who use copyright materials in unauthorised ways.

In my view this should be done by the use of civil remedies (rather than criminal remedies). But the threat of punishment alone will not work to the advantage of creative or media services. To get public perception to change then, in addition to the threat of punishment we must make it easier to “do the right thing” online – as opposed to accessing services where unauthorised use is easily available “for free”.

Developing legitimate services

The last 12 months have seen great progress made in the launch of new legitimate online music services within the UK and wider European markets. At the beginning of June, figures from the Official UK Chart Company showed that, by the week commencing 24 May 2004, over 500,000 legal download sales of music had taken place since the start of the year.

The real importance of this is the way that the new services show the public that there is a right way to access music downloads online. It has recently been announced that there are now over 100 legitimate online music services operating in Europe. The new market is beginning to exist in reality.

The test over the next 5 to 10 years will be to make sure that these services are

(a) easy to use;

(b) flexible enough to remain attractive to users in the face of increasing consumer choice;

(c) price sensitive – to ensure that members of the public who have “gone legitimate”

are not tempted back into using unauthorised services to avoid subscription or other payment obligations for access to the legitimate services.

I believe that building consumer loyalties will be absolutely crucial as decisions are made by music users to “go legitimate”. The way in which BSKYB is challenging Freeview with its planned subscription free service – underlines the ways in which companies will need to be top of a consumer’s “awareness list” for particular media services – if they are to have a chance to push new pay services or enhanced services that will trigger rewards for those operating or providing content for new services to be launched in the next decade.

I believe that the impending final switch-off of analogue for broadcast services will continue to be a bit like the debate over the UK joining the Euro. “Deadline dates” for the switch over are not going to be any politician’s favourite subject!

Managing consumer demand for regulation of new services

I have argued long and hard with regulators about the impracticalities of regulating the Internet.

However, as broadcasts are increasingly communicated to the public using Internet or world wide Web connections, the public realise that some services reaching them via their PCs are in practice regulated concerning the content and the types of material delivered to them. Alongside this, fears about the effects of spy-ware, knowledge of the hard core material which can be accessed via the Net, and a wish to avoid unwanted spamming are all working towards development of a new culture of privacy for some users of the Net.

Initial attitudes of using the Net as a free for all are beginning to soften as consumers start to demand access “on their own terms”. I believe that this will lead to increased debate over the next 5 to 10 years about the way in which online services are to be regulated. OFCOM argue that they are not looking to regulate online services. This is vitally important for those who are effectively using new online services as alternatives to physical retail services.

But, whilst keeping the formal regulators at bay, I do think that there will be increased interest in the development of self-regulation and application of Codes of Conduct for new services. These will then be used by operators as marketing tools to help attract and retain subscribers in the hardening “loyalty driven” environment” that I have suggested will develop.

Chris Marsden: Protecting Rights Holders Without Criminalising Our Children

The Creative Commons UK licence will be released by the time you read this article: http://creativecommons.org/projects/international/uk/

The Creative Commons licence is a totally new, Digital Age method of protecting copyright and permitting fair use. By June 2004, over 50 countries were adopting licences and over a million works were protected by the licences. For the global digital medium, the Internet, a CC licence provides the means to permit others to enjoy, and even adapt, your work on your terms.

The Creative Commons project is an attempt to define more flexible types of copyright which allow public access to creative work with “some rights reserved” rather than “all rights reserved”. The BBC creative archive due to launch this autumn, is intended to provide thousands of three-minute clips of nature programming which people will be able to download, edit and incorporate into their own creative works.

Here’s how it works: Offering your work under a Creative Commons licence does not mean giving up your copyright. It means offering some of your rights to any taker, and only on certain conditions. What conditions? Owners mix and match such conditions from the list of options below. There are a total of 11 Creative Commons licenses to choose from.

Attribution. Owners let others copy, distribute, display, and perform your copyrighted work — and derivative works based upon it — but only if they give you credit. For example: Jane publishes her photograph with an Attribution license, because she wants the world to use her pictures provided they give her credit. Bob finds her photograph online and wants to display it on the front page of his Website. Bob puts Jane’s picture on his site, and clearly indicates Jane’s authorship.

Non-commercial. Owners let others copy, distribute, display, and perform their work — and derivative works based upon it — but for non-commercial purposes only. For example: Gus publishes his photograph with a Non-commercial licence. Camille incorporates a piece of Gus’s image into a collage poster. Camille is not allowed to sell her collage poster without Gus’s permission.

No Derivative Works. You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it. For example: Sara licenses a recording of her song with a No Derivative Works licence. Joe would like to cut Sara’s track and mix it with his own to produce an entirely new song. Joe cannot do this without Jane’s permission (unless his song amounts to fair use).

Share Alike. You allow others to distribute derivative works only under a licence identical to the licence that governs your work. Note: A licence cannot feature both the Share Alike and No Derivative Works options. The Share Alike requirement applies only to derivative works. For example: Gus’s online photo is licensed under the Non-commercial and Share Alike terms. Camille is an amateur collage artist, and she takes Gus’s photo and puts it into one of her collages. This Share Alike language requires Camille to make her collage available on a Non-commercial plus Share Alike license.

When owners have made their choices, they receive the appropriate licence expressed in three ways:

  1. Commons Deed. A simple, plain-language summary of the licence, complete with the relevant icons.
  2. Legal Code. The fine print needed to be sure the licence will stand up in court.
  3. Digital Code. A machine-readable translation of the licence that helps search engines and other applications identify the work by its terms of use.

The law is a clumsy, blunt instrument, setting the boundaries between legal and illegal. Lawyers of course use far more sophisticated risk analyses on behalf of their clients, to assess the ‘grey areas’. For our children, and others who can’t afford a lawyer, how do they determine legal risk? In the case of downloaded media, it is generally by ignoring a law which they consider out-dated and unsuited to their digital media use. They break the law and refute its purposes. This is very damaging for the credibility of digital media businesses, but, more broadly, is also an interesting example of mass digital civil disobedience: where previous generations boycotted South African products or marched against the Vietnam War, the current generation does similar things but also downloads music on their terms, not those of the media industry’s.

I think that non-commercial licensing is likely to become the dominant usage model for digital media, using Creative Commons-type attribution-only licences. The hierarchy-broadcast model of social organisation is antithetical to Internet Protocol networks, and as media converge onto the ‘medium of media’, the Internet, so we can expect more peer-to-peer creativity ‘sampling’ existing media and creating new forms. We should expect our children, currently classified under copyright law as criminals, to become more creative and interactive than those with the dominant couch-potato mentality of our own generations.

Mark Isherwood: Putting the Internet into context

Talking about the “Internet” in isolation is not really appropriate. The Internet is just one of many mechanisms for delivery of “content”. All delivery mechanisms are converging as the “terminals” cease to limit you to one form of delivery or another. Although the terminals are not completely interchangeable at the moment, they will be within five years. The terminal will actual determine which delivery mechanism is used, depending on bandwidth at the time to the service you are accessing. We as consumers will not care as long as we gain access to what we want.

One of the consequences of this is that the phrase ‘content is king’ is likely to become decreasingly true. Entertainment and media content, with some notable exceptions, will increasingly become commodities used to sell other products or services. iTunes is used to sell iPods. No money is being made by Apple on the iTune service yet. Feature films and sport are used to sell set-top boxes. Walled garden content is used to sell broadband connections. As a consequence, content owners will have to get used to a much lower per unit value. This may or may not be made up in volume, it is too early to say.

The implication of this might be that all content will be made available without protection. This is not necessarily true. There is likely to be a dual system in operation. One which uses Digital Rights Management and the other which does not. There is no reason as “citizens” and consumers why we should not be part of communities where we are happy to make our creations available for free and without protection. But this is not a business model which works for everyone, and certainly not for the entertainment and media industries. However, for DRM to work, it has to be really simple for the consumer but effective for the rights owner. This is not necessarily a balance that has been reached yet.

Jim Cottrell: Crystal Ball Gazing into the Internet

As far as the Internet is concerned, the future’s bright, the future’s every colour of the rainbow – and a few more you’ve probably never heard of.

One of the few things about the future we can be sure of is that it will get worse before it gets better.

Worse in respect of the degree to which the Internet is used as a channel for the support of criminal activities. I do not mean just the infamous cybercrimes of the 21st Century but all kinds of crime.

Spam is, in terms of numbers of transgressions, the biggest crime in the history of history – before spam speeding had to be the biggest crime on record across the world. In each case, it is a communications channel that is being abused; for speeding it’s the road network, for spam it’s the e-mail network within the Internet. Tackling spam today is big business. But despite the investment and work of many highly skilled people around the world, spam is booming, although as the Internet world knows all too well, boom leads to bust eventually.

Spam has got to the level where there are global initiatives to tackle it. Technical solutions are being agreed and deployed around the world, but they won’t solve the problem. Legislation exists across various parts of the globe, but is having little effect and is also not solving the problem. In fact, many would argue that the effective legalisation of spam in the US with the CAN-SPAM Act has not only NOT solved the problem but in fact made it worse. After all, we Brits can’t opt out of US spam now, can we?

So, in the future, we need to mix legislative regimes with technical solutions – savvy politicians with politically aware engineers. It must happen.

We need to bring the Internet kicking and screaming into the 21st Century, a century in which those who make the laws realise that old laws don’t fit the present let alone the future. The very recent ruling by the Boston Federal District Court on wiretap law and e-mail makes this plain, as does the UK‘s APIG report on updating the CMA.

Why should we have to bring the Internet kicking and screaming into the 21st Century? Isn’t it the very cutting-edge of technology, the heart of innovation? Yes, it is – all that is true and more. But there is still a view held by many of the Internet community that the Internet is somehow a magical place where the law should never intrude and freedom shall reign for all. The reality however is that the Internet is a communications channel, pure and simple, and all communication channels are open to abuse.

Take roads. No roads means no cars, no cars means no getaway drivers or drunk drivers. We have roads and roads are A Good Thing, but we have laws about how roads are used and who uses them, and this is also A Good Thing. The Internet, the Information Super Highway also needs good things and sometimes these good things are laws.

The future means that the Wild West that is currently the Internet, complete with self-styled sheriffs and lynching parties, needs to be tamed, to be controlled, to be civilised.

Hitting the road again, civilised roads have crash barriers, warning signs at danger points, speed limits and speed bumps. The road is itself part of the solution even though it is road users who break laws. If the Internet is the road, it has its part to play, its own version of speed bumps and traffic lights, but that’s as far as it should go. The Internet cannot police its users, and Internet Service Providers cannot police the Internet, but they can, do and will help where appropriate. The function of a road is to be a road. The architects of the road network have a duty to try and make the road both safe and fit to carry traffic. The Internet is a road for data – the same basic rules apply. It is equally important that the same thought, care and intelligence in legislation that has been applied to roads over the last 100 years is applied to the Internet now and in the future.

999,999 times and more out of a million it’ll be an accident on the roads that kills you before the Internet does, today. In the future, as more functions, more money, more people are controlled via the Internet, it could really become more dangerous than the roads. It is not the Internet itself that will kill you any more than it is the road itself; it is the users and, more importantly, the abusers.

Good Internet Law (and if there is any out there please tell me about it) is needed. Informed, effective and appropriate legislation must play a part in the future of the Internet. That future will support the other futures of the Internet, the Internet which is an indivisible part of the global network of telecoms, 3G, Internet and other emerging network technologies, delivering information, entertainment, employment and more around the world – all day, every day.

The future’s bright, but only if its legal.

Anne Foster: Power of the Web to enable relationships

The most important characteristic of the Web, now or in the future, is that, whatever technology we use or develop and whatever software and communication channels we exploit, the Web’s power lies in enabling relationships. Knowledge is powerful. Acquiring knowledge is a social process. Because access to the World Wide Web, and to internal incarnations of it inside our institutions and organisations, is ubiquitous in the rich economies, and viable elsewhere and because the Web universe is “always on”, it is the Web’s facilitation of the creation of powerful new relationships, and of the modification of existing ones that will represent the most important impact on our futures.

We need look no further than the profession of law to imagine some of the results of this empowerment. For example, governments are increasingly alert to the ease with which capital, both real and intellectual, can be moved from jurisdiction to jurisdiction. Corporations and individuals look for the kindliest tax regimes. Governments try to manage the impact by creating friendlier regimes through legislation. Creative legal counsel develop expertise in understanding and creating tax strategies that may involve the regulatory regimes of other countries. This creates opportunities for growth in services and client base. However, it also provides opportunities for clients to be more selective about who provides their services.

The fact that the executive intent on finding the most cost-effective professional advice for his global corporation can evaluate services on Web sites like The Lawyer, (www.thelawyer.com) or (www.venables.co.uk) and equivalents around the world will have profound effects on relationships between clients and practitioners.

Not all relationships will be happy. Our filtering systems are gummed up with the swarms of malware-infected e-mails that attack us daily. From Eastern Europe come threats of blackmail, for example, the British online betting sites threatened with Denial of Service Attacks (and those threats were made good in some instances). Fraudulent e-mails still gull individuals into providing security codes and banking details. The frauds are ancient in conception, playing on people’s atavistic hope that you really can get something for nothing. What the Web has enabled is much wider and easier access to assets. Even without succumbing to the blandishments of the Nigerian scam (www.silicon.com/research/specialreports/thespamreport/0,39025001,10002928,00.htm), our identities are vulnerable to the weakest security link in any network we touch.

The Web has lawless frontiers – or rather no frontiers – and yet is integral to the most important relationships of our culture. For example, governments, and their communication with citizens, e.g. through electronic tax filings; financial institutions and their relationship with their clients’ assets; professional advisors and their clients. Already we are seeing attempts to rein in the outlaws, and to make the citizens of the Web world more compliant to the enforcement of regulations that will re-establish order. This will become more widespread, and present new challenges to national and supranational agencies.

The Sarbanes-Oxley (SOX for short) is just such a piece of legislation. The Act is created to control fraudulent accounting and malpractice in global companies. It is not targeted at the Web. But in order to demonstrate compliance (and therefore in order to steer clear of trouble with US regulators for companies wishing to trade in the US marketplace) companies around the world will now have to demonstrate that they manage all their corporate documentation (including all e-mail) and digital transactions to the standard of accountability required by the legislation. See http://management.silicon.com/itpro/0,39024675,39121223,00.htm for a handy layman’s guide to SOX.

Global enforcement is not necessarily acceptable to all, and the assumption that certain jurisdictions will provide the legislative framework for global issue will create significant debate.

Robin Bynoe: Predicting the future of the Internet

It is salutary when predicting the future to revisit the futures that you predicted earlier. In the case of the Internet, the elapse of five years, say, takes us back to a very different world, the world of the dot.com boom, one of boundless optimism and the expectation of seemingly limitless funding. (For Internet lawyers, at one remove, the optimism was always more apparent than the funding.)

Most people’s predictions reflect what they find most interesting and what they themselves want. Techies often fall into the trap of concentrating on what the technology can do as opposed to what people want from it. Hence most of the excitable stuff that heralded the unveiling of 3G. Who ever thought that people would really welcome being spotted, technologically, as they strolled up the High Street, and then interrupted and told about the bargains available in the shops they were passing? It’s almost as bad an idea as pop-up advertising on Web sites.

Lawyers often do something similar, concentrating on the aspects that raise legal issues, or, better, produce legal work. Having said that, the predictions we made then do actually stand up quite well. They tended to be along these lines:

Retail online will take over the world and Oxford Street will wither away.

Of course, Oxford Street is still unwithered. It does seem to me though that there has been a sea-change in how consumers buy things. Most people would never have dreamed five years ago of buying anything over the Web, it being common knowledge that your credit card details would inevitably be hijacked by international mobsters lurking somewhere in cyberspace. Now, a Website is probably now their first option when buying books, CDs or airline tickets. The big online retailers – Amazon, eBay, ebookers and so on – have sat on their competition and are among the best-known brands in the world. That can only increase. What does intrigue me is that whereas five years ago there was relentless legal activity in this area, now there is silence: I cannot believe that the market is full yet.

Progress will be driven by the kids.

This is undoubtedly true. We should be humbled by the example of texting – an activity the sheer scale and pointlessness of which no one could have been predicted, but which has nevertheless kept many in the mobile phone business out of bankruptcy. No doubt the new ability to send each other photos of our bottoms by phone will do likewise. The lesson is: sometimes there is a killer application and sometimes there isn’t, but it’s rarely the adult, sensible and apparently commercial one that you imagined.

Whether the kids abandon Kazaa for iTunes is an extremely interesting question but, for the present, anyone’s guess.

The hardware will converge and we will treat computer, TV and phone as one.

This stubbornly refuses to happen, and will not happen until they can all be manipulated by voice, and perhaps not then. Until then we will be constrained by the facts that our fingers are too big for something that fits in the pocket and the British front parlour is no place for a keyboard.

The Internet will become the main forum in which to do business.

This is a prediction close to a lawyer’s self-interest and therefore heart. It is undoubtedly coming true, either through sophisticated virtual deal-rooms or the simple reliability of e-mail, combined with the universality of Microsoft Word. It increasingly happens that deals are done without many of the participants actually meeting each other. Video-conferencing, predicted as an essential part of the picture, is still too primitive to be more of a help than a hindrance. The main challenge for lawyers is how to manage the process. We have cheerfully abandoned centuries of experience of managing paper files without, many of us, establishing where to put, and find, things in our new paperless offices.

Two New Predictions.

The first has to do with the dissemination of news. Printed newspapers will become more and more an adjunct to the online versions – which someone will work out an effective way of making money from. As ownership of the media becomes increasingly concentrated into the hands of fewer people, many with political axes to grind, the present messy amalgam of bloggers, gossip and paranoia will coalesce into something like an alternative source of news and comment. This is already happening in the USA, where the traditional media are overwhelmingly pro-Government and many stories would otherwise never get a start in life. Small-scale initiatives, like local tactical voting, will become feasible for the first time.

Gossip will be the sharp end of this. People will despair of their privacy, except for a small number of celebrities, who will make a lot of money out of selling theirs. People will continue to despair of copyright as means of regulating these things.

The second is a fear rather than a prediction. We are used to viewing the Internet in Utopian terms. It may have been commercialised, we think, but it can only become faster, more efficient, better designed. I hope so. On the other hand, our inboxes are becoming swamped by spam and the creators of viruses are becoming more and more ingenious. We already have to cope with viruses that can affect a network without the recipient having to open any attachment, or indeed take any action at all.

As a result we hear already of companies that put up barricades, refuse their employees access to the Internet and require them instead to have all their dealings on secure extranets. The logical development of that is a world where the Internet becomes a muggers’ alley, confined to consumers and those who pursue them, where you take your life in your hands stepping out to buy a loaf of bread, and never do so after dark. If that comes to pass we shall come to regard now as the Internet’s golden age.

The Panel (in order of appearance) consisted of Andrew Yeates, lawyer, former Director General of the BPI; Chris Marsden, Research Fellow at the Programme in Comparative Media Law & Policy, Oxford University; Mark Isherwood, Senior Consultantant, Rightscom; Jim Cottrell, responsible for Government Policy Liaison at Energis; Anne Foster, Director of Strategic Planning at Electronic Publishing Services; and Robin Bynoe, Partner at Charles Russell, TMT Group.

[1] . The views expressed by the Panellists may be personal views, and may not necessarily coincide with those of their employers.