Delivering the Creative Future

Caroline Davidson, literary agent, reports and comments on:

Delivering the Creative Future:
Rewarding Talent in the Digital Age

A PMA/BBC morning seminar and lunch held at The London Art House, Islington on Thursday 16 November 2006.

This was an important occasion at which senior members of the BBC addressed an audience of about 250 members of the Personal Managers’ Association (PMA).

Here follows my report on the six speakers and what they had to say, slanted towards the interests of literary agents and the writers they represent. As will soon become apparent, the issues at stake are of great significance. There is much for agents to think about and act on.

This reportage will be followed by a separate document, analysing the BBC’s attitude to the digital revolution, which represents a crunch point in the history of intellectual property, and suggesting how agents should respond.

***

The dominant themes of the seminar were how the BBC is adapting to the digital age, the additional competition and opportunities that this engenders, and the challenge of dwindling audiences, especially the young. The message is that the BBC wants to work co-operatively with agents and creatives in the challenging days ahead.
 
We learned a great deal about these topics and the BBC's anxieties and hopes about the future.

There is an essential background document to pick apart and analyse. Although this was only mentioned in passing on the day, it provides the key to understanding the BBC’s current thinking about its future and, more particularly, the content of this seminar.
It is the Director-General, Mark Thompson’s Royal Television Society Fleming Memorial Lecture of 25 April 2006 entitled Creative Future – The BBC programmes and content in an on-demand world.
(www.bbc.co.uk/print/pressoffice/speeches/stories/thompson_fleming.shtml).

This document, along with others on the BBC website, provides an essential grounding in the concepts, terminology and jargon au courant in the BBC. For example, do you really know what 360° means? Can you distinguish between CreativeCommons, Creative Future and Creative Archive? Does DRM trip effortlessly off your tongue? 

As it happens, DRM (which stands for Digital Rights Management) was the unseen focus of the seminar. There was nothing about Rewarding Talent in the Digital Age, as proclaimed by the seminar’s title.

For anyone who doesn’t know, the PMA is the professional association of agents representing UK based actors, writers, producers, directors, designers and technicians in the film, television and theatre industries. Established in 1950, the PMA has over 130 member agencies representing more than 1,000 agents. Their website can be found at www.thepma.com.

It was never clear what role the PMA had played in initiating and organising the seminar, and whether it or the BBC was essentially in charge of the agenda and proceedings. Nor was it made clear who was responsible for the interesting venue and the delicious lunch.

***

THE SEMINAR

Here follows the sequence of seminar speakers and what they had to say (distilled from 16 pages of notes in my A5 notebook). None of the speakers provided handouts for their lectures.

 

1) Michelle Kass: an agent for literary fiction, drama and film scripts, and President of the PMA

Ofcom, the independent regulator and competition authority for the UK communications industries, is pressing the BBC to obtain maximum rights in all deals. In future, the BBC is to obtain all rights in sound, pictures and text in all media and for all platforms.

Agents and creatives are under huge, ever-increasing pressure to give away more for less. Indeed, the BBC has not yet revealed what, when and how it is going to pay creatives for each of the proliferating array of digital rights that are emerging around the world.

In this situation it is no good to focus on individual rights.

She urged anybody interested in the future of the BBC to study Mark Thompson’s Fleming Lecture.

According to Michelle Kass, the BBC should educate the public about the benefits of maintaining the copyright system. However at the same time she thought that the administration of copyright should be simplified: otherwise the BBC might buckle under the “insane number of provisions” that they will have to comply with.

She argued that there was a need for a definition of public service, i.e. the purpose for which the BBC exists.

She didn’t think that film studios or book publishers have answers to the problems posed by the digital age.

It should be noted that Michelle Kass also circulated an email in advance of the seminar setting out 18 issues of concern that she expected to be raised during the day. As it turned out, not all of them were, so it is worth quoting them verbatim, since they are equally relevant to the Association of Authors’ Agents (AAA) as to the PMA:

2) Richard Halton: Controller, Business Strategy “heading up corporate strategy for the BBC”

He joined the BBC in 1999 from Andersen Consulting, the global consultancy now known as Accenture. Since 2005 he has been leading “Creative Future – a major pan-BBC project looking at audience, technology and competitive environments over the next five to seven years and determining how the BBC should respond”.

He argued forcibly that the old days of people sitting down in front of their television and being broadcast at are over: people want to find content wherever they are, how they want it, when they want it. They also want to generate their own content.

Apparently, a third of the UK population now has “no significant relationship with BBC TV”, such is the fragmentation of media needs and consumption.

For anyone wishing to understand this phenomenon and its media environment, Richard Halton recommended www.flickr.com, a photographic website where users can view, share, download and comment on all sorts of photographs ingeniously catalogued to facilitate searches.

He said the BBC is not only having to generate its own content, but also forge numerous new media relationships, typically covering distribution (e.g. BT), software (e.g. Google) and devices (e.g. Sony). Although he didn’t actually say so, I got the impression that this was rather an exhausting process!

He identified four key documents to study, although he did not talk about them in any detail:

• Building Public Value (June 2004)
  http://www.bbc.co.uk/thefuture/bpv/prologue.shtml

• The Department for Culture, Media and Sport’s White Paper A public service for all: the BBC in the digital age (April 2006)
  http://www.bbccharterreview.org.uk/have_your_say/white_paper/wp_home.html

• Creative Future (April 2006) – a speech by Mark Thompson to BBC staff.
  http://www.guardian.co.uk/uk_news/story/0,,1761065,00.html

• Licence Fee Settlement (November 2005) – a presentation to Government.
  http://www.bbc.co.uk/thefuture/pdfs/bbc_licence_presentation.pdf. For background
  information, see http://www.bbc.co.uk/thefuture/pdfs/bbc_licence_information.pdf

On the technology side, he was very pleased by positive feedback of a trial of High Definition televisions, the imminent launch of the BBC iPlayer (planned for early 2007), and the BBC’s first steps to get TV on to mobile phones.

While acknowledging that the “blur” of new technology and audience change are irrelevant compared to the need for great content, which underpins the BBC’s success, he nonetheless emphasised the importance of the BBC competing successfully for attention and controlling gateways and navigational systems. According to him, the BBC needs to be an innovator in technology and in content (in that order).

Looking to the future, he anticipated that on-demand delivery raises the prospect of profound editorial changes, as will the convergence of TV and the Internet.

He said that unity was required in the BBC’s commissioning process. The BBC should be carrying out genre commissioning across all platforms. In addition, it must join its business affairs and rights management in a single group.

Richard Halton predicted that the BBC would in future have to make the case for the public service value for each new programme. He did not explain how this would be done or who would be making the decisions.  Again, as would hold true throughout the seminar, there was no attempt to define or explain the concept of “public service value”.

According to him, there will be three broadcasting “windows” dominating the future: the first window of public service broadcasting will last for seven days; the second window of commercial broadcasting will start at eight days and will last as long as is viable; the third and final window could be an ‘open archive’, lasting indefinitely, which could be entirely public service or combine commercial and public features.

He also said that the BBC needed a simple mechanism for getting content from Windows 1 to 2 to 3.

It is worth noting that Richard Halton did not explain how this journey might be managed, or its timing determined. For agents and their clients, this is a matter of no little significance. No one would wish for an arbitrary system or for one shrouded in secrecy. Similarly there will surely be cases arising where the so-called creatives and their agents will campaign for one outcome while the BBC will want another. Will the word “archive” become synonymous with “consignment to limbo”?

 

3) Ben Lavender: a man of many parts (see start of extensive programme notes quoted below)

“Ben Lavender is an inventor and project director of the BBC iMP trials, a catch-up TV and radio service that would allow audiences to download the previous week’s programmes over the internet using peer-to-peer and DRM and view them on their PCs, mobile devices and TVs. Led 3 month iMP Technical Trial carried out mid-2004. Led a larger iMP consumer trial between September 2005 and Feb 2006. The trials were highly successful and led to support for a live service. iMP was pivotal in re-engineering the BBC’s role as a broadcaster in an on-demand world.”

Ben Lavender said he would be speaking about “BBC – On Demand”.

He proclaimed the good news that there are now 140 ways to access Top Gear. Ben Lavender showed us a video parade of these 140 platforms. It was an astonishing, dizzying experience, akin to travelling on a Japanese bullet train, but not one that was very enlightening because many were unfamiliar and in any case we were not given any idea of their relative importance in terms of audience and revenue.

Ben Lavender thinks that copyright is being destroyed by blogs, as is the ever-increasing illegal downloading of television programmes. He talked about the massive growth in sales of electronic goods to consumers, almost all of which use copyright material. His list included home audio mp3, mobile electronics including telephones, video and TV, home information (cameras, computer peripherals) and electronic games.

Ben Lavender’s main technological enthusiasm is his invention: the iMP (Integrated Media Player) application, which allows TV and radio content to be played via PC or mobile telephone for seven days after the initial broadcast. This service was trialled from October 2005 to February 2006, and he was upbeat about the results. 84% of all programmes made available in this way were downloaded and that 10-11p.m. was the peak viewing time. Comedy, drama and documentaries were the most popular categories for downloading.

Ben Lavender is enthusiastic about the BBC’s Creative Archive trial with its slogan “Download, edit and share”, which he sees as representing public value for home use.

For those who are not aware of Creative Archive, it is a trial scheme involving the BBC, the bfi, Channel 4 and the Open University. This made archive content – including moving images, audio and stills – available to the public to download, manipulate and share. The scheme was solely for personal enjoyment, not commercial use. This was done without breaching copyright law, under the terms of a Creative Archive Licence, influenced by the Creative Commons licensing model.

There were several questions after Ben Lavender’s talk. One expressed concern about the re-editing of material. Another focused on why there were trials of the Creative Archive when no digital rights management had been set up. A third enquired about the framework for communicating details of rights exploitation to agents and creatives: this issue was fudged.

I asked what I considered to be an important question about the balance of revenue between the UK and abroad derived from the BBC’s exploitation of digital rights. I was not given any answer but told that this question would be addressed in a later talk – which it wasn’t.

 

4) Gregor Pryor: a lawyer from Kirkpatrick & Lockhart Nicholson Graham’s Intellectual Property, Technology and Sports Group.

He explained that his international law firm consisted of more than a thousand lawyers. They are used to negotiating with everybody in the media chain, including creatives, rights owners, distributors, content protectors and licensors. He then said that his was a general-purpose talk and that he had not prepared anything specifically for this occasion. He was a dab hand at acronyms and had several key points:

i) Communication to the public is distinct from publication.

ii) It is essential to license digital rights from the start.

iii) His PowerPoint presentation listed the advantages of digital technology as:

• Location tracking and identification
• Capture of demographic and other user data
• Precise viewing habits and patterns
• Ability to carve up copyright (subject to restrictions)
• Instant payment
• High investment/low operational cost
• Connecting rights holders and others in real time

 

In listing these seven points of advantage, Gregor Pryor was doing something that none of the other speakers did: implicitly revealing a corporate agenda that prioritises controlling and restricting public access. Only after this system of control is established, will the broadcaster consider the question of content.

According to this way of looking at things, content will always be of secondary importance to the broadcaster.

iv) Gregor Pryor shone the spotlight on several innovative distributors whom he considered to have devised good business models:

• YouTube - www.youtube.com
• FIFA - www.fifa.com
• Last.Fm - www.last.fm
• Jamba - www.jamster.co.uk
• IODA - www.iodalliance.com
• SnoCap - www.snocap.com

 

5) Simon Danker: BBC Worldwide Director, Digital

In the programme notes, he made the following statement:

“New distribution platforms will give audiences what they really want – access on-demand to an unprecedented choice of programming. The quality and breadth of BBC Worldwide’s catalogue, and our global reputation as a distributor, means we are in a great position to work with platform owners and producers to generate new income streams in this space.”

Turning to his talk, he revealed an enthusiasm for “joined-up thinking within BBC Worldwide”, making money, quick launches and spending lots of time in San Francisco. He believes that everyone will want digital media rights and that the timing of releases is critical.

 

6) Jane Tranter: Controller, BBC Fiction in BBC Vision

She was the most confidential of the speakers, immediately explaining that the BBC needs to be “more on the case”, acting speedily and not being left behind. She said that fiction was already promoted via multi-platforms including:

• “Switch over” from channel to channel
• Associated radio coverage
• Drama websites
• Web marketing
• DVDs
• Publicity
• Merchandising

 

She sounded like a typical book editor or publisher in her preoccupation with the need to create and maintain a “buzz” about every programme or series. On commissioning any programme or series she is adamant that its “multi-platform life” must be considered. She applauded the end of the “brief candle” idea of television, in which an enormous amount of labour was invested into a single broadcast on BBC 2.

Jane Tranter laid considerable emphasis on her co-operative, empowering and enabling approach to managing her Fiction Division. This made a striking contrast to the more de haut en bas, ‘I am the boss’ approach of the men who had been speaking before her. However, she had a distressing habit of wondering, apropos the BBC, “whether the glass was half empty or half full”.

***

CAROLINE DAVIDSON’S ANALYSIS

 

 My impressions of the BBC from the seminar are that it is:

• Worried about its loss of pre-eminence and popularity
• Deeply concerned about its failure to attract young audiences
• Confused about the meaning of its national public service mission and how to achieve it.
• Uncertain of how to balance its duty to the British public with its international audience, which is presumably free of such duties.
• Appalled by the multi-tasking demands being made of it. Not only must the BBC continue to cater for its traditional audiences in the UK, but it is also under great pressure to re-capture those that it is has lost. In addition, there is the daunting challenge of creating programmes that will appeal to an international audience and make money.
• Obsessed with the licence fee, two words that are weighed down with questions and meanings. At the seminar we gathered that the negotiations for this and the uncertainties about future funding were very distracting and forced an unproductive, cyclical pattern of work.
• Disunited. There is constant competition for funding, which does not make for an atmosphere of harmonious cooperation.
• Spooked by the fact that so many other media organisations are doing so well, and so comfortable in the digital age, especially since the BBC is itself so nervous and apprehensive about managing its digital transformation.
• Uncertain about the impact of the digital age on the BBC's finances and business future, both here and in the rest of the world, particularly whether it might lessen its dependence on the licence fee.
• Indifferent to rights selling. It was significant that none of the BBC speakers at the seminar came from Rights or Contracts. The subject of rights selling was hardly alluded to.

 

The BBC, agents and the digital revolution

There is a fundamental need to define terms in this area, and to make sure that everyone is understanding and speaking the same language.

No one at the seminar defined the meaning of digital rights or digital media. If one turns to Wikipedia for definitions, disappointment ensues:

“The term “Digital Rights” is indicative of the freedom of individuals to perform actions involving the use of a computer, electronic device, or a communications network. The term is particularly related to a set of actions which would normally be permitted in accordance with the rights of individuals as they exist in any other aspect of life but which have been impacted by a change to digital technology.”

“Digital media (as opposed to analog media) usually refers to electronic media that work on digital codes. […] Digital media (“formats for presenting information” according to Wiktionary:Media) like digital audio, digital video and other digital “content” can be created, referred to and distributed via digital information processing machines. Digital media represents a profound change from previous (analog) media.”

In both cases, it is apparent that rights are being defined from the consumer’s point of view, not the creative’s, nor the broadcaster’s. The BBC, conversely, think about digital rights as commodities to be acquired, exploited and protected. These, and other conflicting ideas about digital rights, cannot be easily reconciled.

Returning to the seminar, nobody explained the meaning of digital rights management (DRM).

For literary agents the words ‘rights management’ mean a complex web of activities with which they are utterly familiar because they are engaged in them all the time. These activities govern the ways in which a creative’s work is disseminated and exploited commercially – from everything to how it is reproduced, circulated, published, sold and distributed, and exploited by the publishers or producers. These include: selling rights (i.e. offering them to a variety of potential buyers); negotiating the terms of the sale i.e. the territories covered, the types of rights granted, the length of the licence, and all the financial and payment details); drawing up and negotiating the agreement; drawing up addenda and/or renegotiating agreements if required; overseeing the prompt and correct payment of the monies due to the client etc. etc.

The addition of the word ‘digital’ before the words ‘rights management’ could easily be taken as a simple qualifying adjective.

However, to understand DRM in this way is to fall victim to a cruel misapprehension.

Turning to Wikipedia once again, it emerges that DRM ‘is an umbrella term that refers to any of several technologies used by publishers or copyrights owners to control access to and usage of digital data or hardware, and to restrictions associated with a specific instance of a digital work or device. The term is often confused with copy protection and technical protection measures.’ (my italics).

As for the World Wide Web Virtual Library (www.drm.uk.com), it has a longer definition:

“Digital Rights Management (DRM) describes a range of technologies which allow control of distribution and access to digital information, typically - but not restricted to - mass-media content (e.g. books, music, movies), software or data files (e.g. documents, spreadsheets, databases).

Control may be applied for purposes including copyright or intellectual property protection, commercial, industrial or military confidentiality, regulatory privacy and regulatory compliance, amongst other functions. In the latter cases digital rights management solutions typically ensure that duplicate files cannot exits. This ensures that audited documents remain traceable, that the originators of any and all changes can be traced and recorded and that duplicates (or excerpts) do not exist when confidential files are deleted.

Digital Rights Management solutions typically consist of technical protection measures and some type of rights database that determines correct policy or usage for each file and each user. The technical protection system typically comprises a cryptographic layer and a copy protection layer.”

The subject of DRM was certainly not discussed by the BBC representatives speaking at the seminar, except to the limited extent of portraying an obsessive interest in platforms.

At no point did any of the speakers focus on the implications of DRM for agents and creatives.

What about the BBC’s content?  Some lip service was paid to this, but very much in passing.  As for quality and value, well… The emphasis fell on how to chop it up and recycle it in as many ways as possible.

And what of the BBC’s relationship with creatives? A clear picture did not emerge, except for the idea that these amorphous people need to be paid to create content. There was also the assumption that they would only do so if sufficiently rewarded. The possibility of there being other dimensions to creativity and many additional ways in which to engender and enjoy a good working relationship with creatives never came up.

Although never explicitly stated, it seemed obvious that the BBC has already decided that it must buy out all digital rights from now on.

The key question for agents is whether this should be resisted, if indeed it can. Assuming that the Davids of this world have no choice but to deal with Goliath and his demands, what is the best way of proceeding?

The next instalment of my ruminations about digital rights will include a manifesto for action.

 

 

Dedication: this report and think piece is dedicated to Maggie Noach, a valiant, independent literary agent who died this month. She was the founder of a wonderful ‘knitting circle’ which, from the mid 1980s, used to meet at different locations round London every six weeks or so. The literary agents lucky enough to be included revelled in reporting and discussing what was going on behind the scenes of book publishing. They knew that it was safe to speak freely and that nothing would be passed on. Its members loved to be among compatriots whom they could trust and who truly understood their problems. The knitters helped each other - pooling their communal wisdom about how to handle difficult people and troublesome contracts. The name of this secret society bore homage to the tricoteuses who actually did knit as they sat and gossiped by the guillotine during the French Revolution.

 

27 November 2006

 

Copyright Caroline Davidson, 2006

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