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Introducing... 'The Evolution of Content': Protecting and Monetising Content in the Digital Age Last week, News International unveiled new-look Times and Sunday Times websites which, from later this month, will be available only to those willing to pay-to-view. In a market where access to free content is the established norm, Times editor, James Harding has defended the controversial move as essential in creating a "sustainable economics for the future of journalism online." The digital publishing industry is not alone in its struggle to monetise content and protect creative rights in the online space. As all eyes turn towards the Times paywall experiment, this month's ICOMP newsletter examines the challenges facing the varied content owners and rights holders seeking to develop sustainable business models in the evolving online marketplace. Contents of today's ICOMP newsletter: 
Inside Brussels The European Parliament on 5 May adopted a (non-binding) resolution on Europeana, the European Digital Library, in which it stressed that the digital library "must not depart from its prime objective, namely to ensure that the dissemination of knowledge on the Internet is not left to private commercial firms". A substantial part of the financing should come from public contributions, such as the EU, Member States and cultural organisations, the resolution states. MEPs did not oppose the involvement of private partners in the digitisation process per se, as long as this would not lead to the creation of private monopolies, which they saw as a threat to Europe's cultural diversity and pluralism. Compliance with the rules of competition is a prerequisite to the involvement of private companies, MEPs underlined. Furthermore, they said public-private partnerships must ensure that copies of all digitised works can be indexed by all search engines. The Parliament also urged the Commission and Member States to adopt legal provisions designed to ensure that the digitisation process does not bring about any 'sui generis' copyright, and to address the issue of whether legal derogations should be introduced for the digitisation of orphan works. The legislative proposal on the digitisation, preservation and dissemination of orphan works must meet the requirement for diligent search and appropriate remuneration of rights-holders, MEPs stressed. Also on 5 May, the Parliament adopted a resolution on the new Digital Agenda, which the European Commission officially presented on 19 May outlining seven priority areas for action, such as creating a digital Single Market, greater interoperability, boosting internet trust and security, much faster internet access, and enhancing digital literacy skills and inclusion. MEPs generally endorsed the Digital Agenda but also made some proposals going beyond the Commission's ideas. They called, for instance, for the creation of a European Charter of digital rights, which should consolidate the Community 'acquis' in aspects such as protection of privacy. In this context, the resolution asked the Commission to submit a proposal for adapting the Data Protection Directive to the new digital environment, stating that all users should have control of their personal data, including the "right to be forgotten". Moreover, the resolution called for a study on harmonized rules within the EU to promote a common markets in cloud computing and e-commerce, greater investment in the use of open source software and a more forceful debate on copyrights.
Courts in the US and Europe continue to dismiss lawsuits alleging that Google's AdWords service enables the company to profit from trademark infringement despite growing concerns from rights owners. Last summer, foreign language software provider Rosetta Stone Inc. brought such a lawsuit before a US District Court. In a case resonant of the recent LVMH case before the European Court of Justice, the company staged its objection to Google's practice of permitting counterfeit software companies and competitors to bid on search terms relating to Rosetta stone's trademarks, forcing the company to enter into a bidding contest in order to protect its brand. In April, the Court struck out the case before it even came to trial, yet Tom Adams, CEO of Rosetta Stone Inc., asserts the company's determination to continue its fight to establish a fair online ecosystem, telling Reuters: Indeed, the issue's dismissal by regulators belies a plethora of cases across the globe pointing towards the wide ranging impact of loss of copyright protection on companies and content owners from a variety of sectors. Last month the highest federal court in Germany ruled that Google's use of an artist's pictures in its image driven search results amounted to a breach of copyright under national law. Nevertheless, the artist lost her case against Google on the grounds that, in making her website visible to search engines, she had consented to the inclusion of her images in search engine display. This ruling is questionable- one must ask how small businesses can survive in an online ecosystem that demands the sacrifice of intellectual property rights for the price of visibility? Nevertheless, there may be a ray of light at the end of tunnel for some trademark owners. Last year the Chancery Division of the High Court in England and Wales referred a series of questions to the ECJ relating to the Interflora's case against Marks & Spencer's for trademark infringement. In light of the Court's recent clarifications on AdWord trademark infringement, Mr Justice Arnold has reviewed his original questions, and has asked the ECJ what the situation is under the Trademark Directive, "if a search engine operator does not permit trade mark proprietors in the relevant Member State of the Community to block the selection of signs identical to their trademarks as keywords by other parties?" Depending on the ECJ's response, this could be highly problematic for Google's AdWord policy, as in certain Member States, such as Ireland and the UK, Google currently refuses to disable sponsored links in breach of trademarks. Despite this opening, in the current landscape, organisations continue to feel the pressure of weakened control of how their IP is used online. As long as search advertising and copyright protection remain mutually exclusive, trademark owners will no doubt be forced to seek new forms of advertising that protect their reputation and investments. ICOMP to participate in the Annual CEPIC Congress (Dublin, June 2010) On June 11th 2010, ICOMP will be involved in the annual Centre of the Picture Industry (CEPIC) Congress. The Congress programme this year focuses upon on the importance of maintaining sustainable business for content owners and rights holders, subjects that are of considerable importance to ICOMP and its members, including CEPIC. The CEPIC Congress is the world's largest forum representing the entire spectrum of the international photo agency community. The theme of this year's congress is 'Growth and Opportunity in the new Digital Age' and features two sessions to which ICOMP has made its contribution. The first on Sustainable Internet Business Practices will touch on intellectual property issues; the second, a panel on Growing the Industry, looks at best practices for content creators that wish to monetise in a digital era, particularly relating to those in the imaging industries. Because imaging touches many aspects of online publishing (affecting not only picture agencies but also authors, musicians, newspapers, social networks, mobile content providers, social platforms and more) the Congress promises to address issues relating to trademarks, monetising content, online and mobile advertising, as well as the impact of market dominance on the digital economy. To enjoy regular updates on events taking place in the run up to and during the congress, see the CEPIC website, Facebook event page and Twitter feed. If you plan to attend this event, you are invited to contact icompsecretariat@bm.com if you would like to arrange a meeting with ICOMP. ICOMP and the German Institute for Economic Research (DIW) to host Panel Discussion: 'Competition 2.0: The winner takes it all? ICOMP, in partnership with the German Institute for Economic Research (DWI), will host a panel discussion in Berlin on Monday 7 June 2010 addressing the question, "What effects do quasi-monopolies on the internet have for industries, companies and users?" The discussion will be moderated by Christoph Waitz (former MP and Media Spokesman of the German Liberals); panellists will include senior figures from the online, scientific and political sectors as well as representatives of ICOMP. The discussion will be streamed live (in German) from 4.30pm CET at: i-comp.org/events-de/interaktiv Privacy Invasion by Design? Challenging Google's Privacy Credentials Earlier this month, Google revealed that the roving cars used to create its Street View service have been "mistakenly" gathering private information over unsecured wireless networks for the past three years. In response to this revelation, ICOMP Director, Auke Haagsma has reflected on the company's commitment to data protection in a blog post entitled, 'Privacy Ivasion by Design? Challenging Google's Privacy Credentials.' Considering Google's public response to its misappropriation of data within the context of EU law, Auke writes: "In its "Digital Agenda for Europe" launched yesterday, the European Commission reiterated that the rights to privacy and to protection of personal data are fundamental rights in the EU. They must be effectively enforced using the widest range of means. According to the Commission, these means should range from the wide application of the principle of "Privacy by Design" in relevant ICT technologies to dissuasive sanctions where necessary. If the succession of privacy disasters mentioned above shows one thing, it is that whatever Google's public statements, privacy still ranks very low among Google's main concerns." See here for the full post. Founder of ICOMP Council Member, OneNewsPage.com, Dr Marc Pinter-Krainer has also given his perspective on the issue in an article exploring the privacy challenges currently facing Google. He writes: "With concerns about Google's data collection machine already collecting vast amounts of user data, such as web browsing activity, search topics and various other patterns used for behavioural profiling already mounting, this latest major privacy hiccup does not bode well for the search giant." The article can be read in full here. AdMob Clearance Signals Even Greater Need for Antitrust Scrutiny ICOMP has published an issue statement commenting on the implications of the Google/AdMob deal following its authorisation by the US Federal Trade Commission. The statement addresses the widespread concerns that Google has used its dominance in search to foreclose competition in other forms of online advertising have deepened with the news that the US Federal Trade Commission has decided not to oppose Google's acquisition of AdMob. The article can be read in full here.
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ICOMP is an industry initiative for organisations and policy makers involved in the online marketplace, which aims to draw up and build widespread support for principles that underpin a transparent and competitive internet.
ICOMP is funded by member contributions as well as sponsorship from Microsoft. Burson-Marsteller acts as its secretariat.
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