B2fxxx

The universality of organisational stupidity

2012-05-28T14:34:00.000+01:00

1.   Knowledge = Power [sic]

2.   Time = Money [sic ditto]

3. Power = Work/Time [Science]

Substitute 1. into 3. to give:

4.   Knowledge = Work/Time

Substituting 2. into 4. demonstrates:

5.    Knowledge = Work/Money

Re-arranging 5. leads to the conclusion that

6.     Money = Work/Knowledge

Hence we derive and/or demonstrate the universal nature of organisational stupidity. I was thinking of using this in opening my book on the convergent evolution towards insanity of large organisations. But insanity, at least in a legal sense, is to do with a person's capacity to be responsible for their actions in the context of a loss of contact with reality. Stupidity is a feature of the insanity of large organisations but I'm wondering if it is a sufficiently important feature or emergent property of the insanity to merit inclusion in the introduction? Answers on a postcard (or electronic equivalent) please...

A Global reality: don't put your data in the cloud, Mrs Worthington

2012-05-25T10:52:00.001+01:00

Hogan Lovells have produced a very practical and succinct white paper, A Global Reality: Governmental Access to Data in the Cloud.

The authors examine government access to personal data in the cloud across ten jurisdictions and conclude that we're kidding ourselves if we believe controls on government access are tighter in the EU than the US.

"Businesses often assume knowledge of the laws regulating
governmental access to data in their home jurisdictions, and
they make further assumptions about the legal regimes
abroad where Cloud service providers may be located."

The authors mention the PATRIOT Act as a particular bogey man for critics of the US in this regard. Whereas the PATRIOT Act does give governmental authorities wide ranging powers equivalent anti- terrorism laws in other jurisdictions mean

"Every single country ... examined vests authority in the
government to require a Cloud service provider to disclose
customer data in certain situations, and in most instances
this authority enables the government to access data
physically stored outside the country’s borders, provided
there is some jurisdictional hook."

The result is that:

"Some erroneously believe the best way to limit governmental
access to data is to use Cloud service providers present only
in “safe” jurisdictions – places where data are thought to be
free from troublesome governmental access."

But even when particular jurisdictions don't seem to have nominally permissive access regimes,

"The existence of Mutual Legal Assistance Treaties greatly
diminishes any argument that data stored in one jurisdiction
is immune from access by governmental authorities in
another jurisdiction."

Just as civil rights activists have been explaining for years, you can drive a coach and horses through the loopholes in the statutory protections for privacy in the EU.

The report points out that in terms of protection the EU could, by virtue of the existence of the data retention directive (Directive 2006/24/EC) be structurally weaker on personal data protection in theory than the US.

"a law that perpetuates the existence of data that might not otherwise be available to governmental authorities (because it would have been deleted) is a factor to be considered in evaluating the favorability of one jurisdiction over another as a service provider location."

Being a short overview of 10 jurisdictions the Hogan Lovells report doesn't have the capacity to go into the practical application of the various legal regimes. They clearly and succinctly outline the situation in each jurisdiction - the US, Canada, Australia, Denmark, France, Germany, Ireland, Japan, Spain and the UK and also note that "Proposals for reform of privacy rules in the EU do not contemplate altering the current environment in which law enforcement has significant access to data in the Cloud." In the UK, for example,

"The government may intercept communications if doing so is
“necessary” in the interests of national security; for the
prevention or detection of a serious crime; to safeguard the
economic well-being of the UK; or in response to a request
under an international mutual legal assistance agreement.
There is no need for court approval and the details of such
an “interception warrant” must be kept secret."

The table at the end of the paper provides a neat summary indicating you can barely slip a cigarette paper between the access regimes across all 10 jurisdictions reviewed. The lesson?

For the foreseeable future, if you want to protect your data from essentially unrestrained government access, (without even thinking about private sector and criminal access and sharing), don't put your data in the cloud, Mrs Worthington.

Report authors, Winston Maxwell and Christopher Wolf, should be commended for condensing a complex subject in such an accessible way.

Update: One of the smartest thinkers/practitioners around on privacy and the Net, Caspar Bowden, has pointed out that the over-simplification in the report, as simplification often does, distorts the real story here. The claim that the EU might be structurally weaker than the US on privacy regulations, for example, does not stand up to any kind of close scrutiny. Caspar draws particular attention to the DOJ's belief that the PATRIOT Act is subject to secret government interpretation and additionally that such claims are unsustainable when the details of the PATRIOT Act and the FISA (Foreign Intelligence Surveillance Act) Amendment Act 2008 (s.1881a) are examined and compared to EU regulations.

Update 2

Caspar Bowden says:

"This paper, and several others of its kind over past few years, manage to avoid mentioning ... :

- the FISA Amendment Act 2008 s.1881a, which created a new power targeted only at non-US persons outside the US, to intercept communications and access "remote computing services" (i..e Cloud computing) from any company subject to US jurisdiction, which compels access, without any warrant, to...

- ...information which merely "relate" to "the conduct of the foreign affairs of the United States" or "with respect to" a "foreign territory" or "a foreign-based political organization". Isn't is strange how all US accounts of US laws seem to omit these limbs of the (enormous and rambling) definitions?

- s.215 of the Patriot Act, which is being interpreted according to some secret doctrine that is (possibly/probably) about grabbing arbitrary data stored on disk under powers designed for library records, thus avoiding a warrant. This will likely be worse if you are outside the US, because you will have no chance at all to get standing in a US court (assuming you ever found out about it).

All this is quite illegal in ECHR territories, which grant universal rights irrespective of nationality (within the jurisdiction of the 50 signatory states), with laws that are precise and foreseeable in their effect, for purposes which cannot include spying on ordinary lawful democratic political activities and beliefs"

He goes on to comment specifically on some of the detail:

"pp1. "As one observer put it, France's anti-terrorism laws make the Patriot Act look "namby-pamby" by comparison."
- following the footnotes, that 'observer' is one Gary Schmitt, former staff director of the US Senate Select Committee on Intelligence

pp2. - "it is incorrect to assume that the United States government’s access to data in the Cloud is greater than that of other advanced economies"
- Untrue: FISA explicitly discriminates both the protections and allowed purposes by nationality, given inferior (or zero) protection to foreigners, especially outside US

pp.2 - Kennard: "In a number of critical areas, the U.S. provides more restrictions to the access of personal data than do European Member States."
- Untrue: under no Cloud-relevant circumstances will the data of a European in Europe receive greater protection under US law than under European law

pp.2 - "Despite the procedural hurdles that may exist to request and obtain information pursuant to MLATs..."
Misleading - euphemism for fact EU law enforcement authorities may have to wait 6 months while their MLAT requests stack up in the US Department of Justice (thus discouraging sending very many)

pp2. - "The existence of Mutual Legal Assistance Treaties greatly diminishes any argument that data stored in one jurisdiction is immune from access by governmental authorities in another jurisdiction."
Wrong - unless the US wants to do any political spying (e.g. on the European Commission where apparently use of US cloud apps is rife for preparing official documents)

pp.4 - "The reality is that most of the investigatory methods in the Patriot Act were available long before it was enacted. And those investigative tools had, and still have, limitations imposed by the United States Constitution and by statute"
Misleading: - although the US Constitution is silent on the matter, the US mostly doesn't recognize (ask John Yoo) foreigners as having Constitutional rights, even those physically within US territory. Which is sort of the point in Cloud computing.

pp.4 "Under the ECPA, if a government body seeks disclosure of customer data from a Cloud service provider, it can only do so if a judge issues a search warrant or special ECPA court order, or if the government issues a valid subpoena to the provider"
Omission - which is why the secret interpretation malarkey of Patriot 215 is important, because it by-passes this law and then some (no probable cause, or reasonable grounds to believe etc.)

pp5. "FISA Orders and NSLs were available to the United States government even before the Patriot Act was enacted. The Patriot Act merely expanded some of the
provisions of these access methods. For example, it added “gag order” provisions"
- here's what that merely amounted to for one small ISP owner

pp.5 "A Cloud service provider also may petition the court to overturn the “gag order.”"
- only took Nick Merrill six years of life

pp5. "...relevant to the concerns of foreign countries about their nationals’ data, a recent ruling by a United States appeals court one level below the Supreme Court confirmed that statutory protections are extended to non-United States citizens for data physically maintained in the United States and stored in the Cloud"
Misleading & wrong: - there's no reference given, but they plainly mean the Suzlon case, which only applies to ECPA (Electronic Communications Privacy Act) not ways of getting at data under FISA or Patriot or relying on 4th Amendment protection, and isn't a Supreme Court decision anyhow. But well done Microsoft for litigating hard anyway, even if it is self-serving to reassure your foreign customers.
====

[...]

====
pp.12 "In short, the proposals for reform of privacy rules in the EU do not contemplate altering the current environment in which law enforcement has significant access to data in the Cloud."
Sadly true but also misleading: the draft of the proposed new EU DP Regulation which leaked in Dec 2011 contained an Article (42) which would have required Cloud providers to get the approval of data protection authorities before responding to direct US law enforcement authorities' requests (e.g. under Patriot/FISA), on pain of severe fines, and to notify the individual. Presumably after heavy lobbying, this Article was removed in the published proposal, replaced with a pathetically weak Recital 132 which says if the Commission finds out something naughty is going on they should jolly well do something about it quickly""

Caspar would be grateful for comments, corrections and refinements. Thanks to Caspar and to Peter Sommer who originally drew my attention to the report via the excellent FIPR alerts.

The $8 (or maybe $6) billion iPod

2012-03-19T14:56:00.002Z

Rob Reid, founder of the Rhapsody online music subscription service has being doing some copyright Maths at TED.

He suggests we put aside the emotive debates about copyright and associated monsters like SOPA and ACTA and look at the numbers. The MPAA, for example, claim the internet is costing the US economy $58 billion a year "due to content theft". $58 billion which if you had it laid out in pennies would stretch all the way to Mars. It's also equivalent to the entire US corn crop failing, along with all fruit, wheat, cotton, rice and a number of other crops.

Music revenues are down about $8 billion a year since Napster's early days according to the music labels. Movie and cable TV along with publishing revenues are up so where's the missing $50 billion, once the $8 billion drop in music sales is accounted for? With copyright revenues up in most sectors the missing $50 billion must be "foregone growth in a market that has no historic norms", i.e. a market that didn't previously exist. His tongue in cheek answer to the missing link is "the insidious cost of ringtone piracy."

The MPAA also tell us the economy loses 373,000 jobs to content theft. Interesting given that in 1998 the US Bureau of Labour Statistics showed the entertainment companies were employing 270,000 people.

He goes on to talk about the $150,000 statutory damages available in the US for copyright infringement, (hence the notorious excessive damages in the Jammie Thomas and Joel Tenenbaum cases). He claims the original MP3 player the Rio could store 10 songs i.e. $1.5 million worth of songs. In an iPod with a 40,000 song capacity this runs to $6 billion "worth of stolen media." It's a pity he got his sums wrong here, as he actually says "$8 billion worth of stolen media or about 75,000 jobs." Maybe the error is deliberate and he's making a subtle point about the normal rules of mathematics being ignored in copyright debates and policy? His conclusion that you might find copyright math strange is an understatement. The five minute talk is nevertheless worth a look.

Update: Rob Reid explains his $8 billion calculation:

"In determining a given device’s maximum capacity for infringing material, I assumed an average song length of three minutes, and an encoding rate of 128 kilobits/second. I went with 128 kbps because using the AAC codec,[25] this is the rate at which music achieves “hi-fi transparency[26] — which is to say, it becomes indistinguishable from CD quality in most listening environments. This rounds very closely to 1 megabyte of data per minute of music.[27] At 32 megabytes, the Rio (1999’s Christmas hit) therefore had room for about 10 songs, which, if pirated, could represent up to $1.5MM in liabilities under US law. Today’s iPod classic, with its 160GB capacity, can hold 53,333 songs, which at $150,000 a pop is precisely $8 billion. Incidentally, Apple markets the iPod classic as having room for just 40,000 songs, but by my math, that’s selling it short. I meant to note this in the presentation, but I was running way over time by then, and spared everyone the convoluted math (so if the leap from 40,000 songs to an $8 billion liability confused anyone, I apologize — I had meant to take a quick detour through that 53,333 figure!)."

That's a really helpful clarification. The problem with simplifying is you end up losing precision to the point of getting it wrong. I hesitate to extend the pedantry but 53,333 songs at at $150,000 a pop is precisely $7,999,950,000 not $8 billion. Another 1/3 of a song at $50,000 is needed to reach the magic $8 billion. Of course the odd $50k in the copyright wars is barely discernible small change...

Pictfor: Harvgreaves, consumer & creator rights

2012-03-14T15:01:00.001Z

Consumer Focus and the Parliamentary Group on Internet Communications and Technology (Pictfor) had another panel discussion about the Hargreaves review yesterday evening in the Grand Committee room in Westminster Hall at the Houses of Parliament. The speakers were Mike Holderness, Chair of the Creators’ Rights Alliance, Gwen Thomas, Consultant to the Association of Photographers, Saskia Walzel, Senior Policy Advocate at Consumer Focus, and Simon Indelicate of the UK band the Indelicates.

The event was chaired by Alun Michael MP, who opened proceedings opining that finding common ground was a more productive process to the usual situation where vested interests get together in their own silos and reinforce their own views. Stakeholders getting together, listening to each other and working out a way forward was much better than leaving it to government which has a huge capacity to get things wrong. So stakeholders should work out what needs to be done and get the law to underpin that with principles. He also mentioned that the panel event was a follow up to a Consumer Focus and creators rights day long event which had explored:

Copyright exceptions
Orphan works
How to smooth the flow of money from consumers to creators

- and associated issues. Then introduced the speakers, inviting Saskia Walzel of Consumer Focus to go first. Saskia opened by explaining Consumer Focus is the statutory watchdog for consumers. They work on copyright licensing, exceptions and enforcement. The work on licensing grew out of their initial work on enforcement.

Consumer Focus are keen for licencing reform and the facilitation of the licensing of legal services in a timely manner. They have found that consumers are broadly supportive of copyright as a framework to ensure creators get a fair share of the revenues flowing from their work. But equally consumers are bewildered by the complexity of copyright and for example the illegality of format shifting.

Historically consumers were not big stakeholders in the detailed archaic rules of copyright. It was relatively difficult for them to engage in infringement, so they didn't need to understand the rules. In the modern world though where the use of a computer connected to the internet results in de facto copyright infringement consumers need to understand and buy into copyright regulations. So Consumer Focus strongly support Hargreaves recommendation for a limited private copying exception.

Saskia said the last major copyright law update in the UK was in 1988 in the time of tape recording machines. Ancient times and therefore unsuitable for the internet age. Consumers expect private copying to be legal. But also accept unlawful copying via peer to peer networks to be controlled.

In a digital age many exceptions intended to benefit creators are now used by consumers e.g. reporting and commenting done by bloggers. So exceptions need to work for consumers as well as creators. Consumers are users of copyrighted materials and share creator needs.

Consumer Focus argue there is a desperate need for a small claims court for copyright disputes. The UK Intellectual Property Office hope to introduce such a system later this year. The cost of litigation under the current system is way beyond the means of most individual consumers and creators. The current system was created for commercial entities, the assumption being they would have the necessary funds to go to court if and when necessary.

Hargreaves conclusions were quite similar to those of the Gowers review in 2006. The primary difference was the Hargreaves concentrated on well functioning markets to support growth and therefore focused on licencing. Consumers and creators are large stakeholders in this. We need to ensure the fruits of consumer spending get back to creators. Creators in the UK often get a very small slice of the pie if any at all. In a bid to address this creator groups have periodically called for levies on consumer technology like ipods. The thinking is that an extra revenue stream can be generated which creators could benefit from. But the flaw in the plan is that it does not address the key problem of the money being soaked up by intermediary commercial agents like the big music labels. Nearly £800 million was spent on recorded music in 2011. Commercial companies and wealthy artists got the lion's share of it.

Saskia also noted that Hargreaves did not properly consider creators' rights. Though moral rights do get mentioned.

There is an underlying false assumption behind a lot of the public debate on copyright that creators' rights are coincident with commercial entities interests. The Monopolies and Mergers Commission as far back as the mid 1980s found that the big music labels were engaged in monopolistic practices; and that they used their monopoly position to impose unfair contract terms on creators. Yet they concluded that this was not against the public interest.

The interests of creators and commercial intermediaries are not the same. So how do we construct a copyright system where intermediaries do get paid but creators get a better share of the spoils?

The next speaker was Mike Holderness, Chair of the Creators’ Rights Alliance (CRA). He explained that the CRA has about 100,000 members, many of whom are sole traders. The CRA are concerned about how we will get growth.

He asked the question: what do? And then answered by stating it involved overwhelmingly the work of sole traders. These individuals have very little bargaining power in dealing with the commercial intermediaries. Mike Holderness himself is a science writer.

Technological changes create massive possibilities e.g. to reach a worldwide audience but most of these possibilities are only theoretical. The changes and the possibilities provided to sole traders by disintermediation are welcome. But the problem is taking advantage of the changes because people trust big name brands.

Hargreaves concentrated too much on re-users and intermediaries (e.g. big search engines) as far as the CRA is concerned. It is hard to make a living as a professional creator. Wikipedia is a great example of what people will do for free but it's not reliable. We have to have reliable information produced by people who dedicate their working lives to doing it.

There has been a lot of controversy around the phone hacking scandal and we need to get journalists to take responsibility for their work. Yet they often have no control over how it is presented. The journalist researches and writes a story. It is then mangled by the editorial process at the newspaper where the first three paragraphs are rewritten to trot out the paper's editorial line. To get the story as it was intended to be conveyed you have some chance only if you start reading at the fourth paragraph. There are numerous examples of newspapers and magazines altering photographs e.g. Time Magazine's alteration of a photo of O.J.Simpson around the time of his arrest as a murder suspect making his skin look darker. An unaltered copy of the photo appeared simultaneously in Newsweek. The original photographer had no control over any of this. The president of the CRA herself had an article she wrote on gay marriage grossly distorted and misrpresented when published in the Gulf.

Publishers often have a standard creator rights waiver which writers are obliged to sign if they want their work published. So creators need an enforceable right to be named/accredited as happens in France. The UK has failed creators in the area of moral rights. Moral rights support the careers of individual creators.

These laws are not made for agents. Every kid in the country will be a published author, holding copyright in their contributions to Facebook, before they can vote. We therefore need to level the playing field in terms of relative bargaining power between individuals and large commercial services like Facebook.

As he then got the nod from the chair that his time was up, Mr Holderness concluded with a rapid "Libraries are a very wonderful thing!"

The third speaker was Gwen Thomas, Consultant to the Association of Photographers. Ms Thomas opened directly with a critique of the Hargreaves review suggesting it missed two key areas - contracts and moral rights. The Association of Photographers did a survey in 2007 of about 2500 members. 50% of respondents said that their bargaining power had diminished in the previous ten years. 40% had been forced into signing moral rights waivers and 24% had seen decline in attribution over the same period. 31% said the decline was getting worse.

So they believe we need to strengthen moral rights and equalise bargaining power of commissioners, creators and users.

When the Copyright Designs and Patents Act (CDPA), introducing extra protection for photographs, came into force on 1 August 1989 it was a mixed blessing. Nice in theory but that same day nearly all photographers got a letter from the big publishers including a contract to waive moral rights. They were obliged to assign the copyright in their photos to the publisher and waive their moral rights into the bargain. For every photographer refusing to assign copyright there is a queue of people prepared to do it.

Unlike for European colleagues UK law treats copyright like a property right. Therefore as property it is something you can give or sign away.

The UK needs to strengthen the Unfair Contract Terms Act 1977 which does not apply to intellectual property.

Moral rights are hugely important to photographers because derogatory treatment of their work is rife. Most professionals are aware of moral rights but not that they need asserting. Everyone is a photographer but most are not aware of their rights under the law.

There is a lot of talk about orphaned works but images become orphaned unintentionally. The original photographer knows they are not orphaned. Photographers can avail themselves of the economic benefits of lending rights when there is no name on the image.

Moral rights are incredibly important for reputations. The moral right to object to the derogatory treatment is hugely important (this applies equally to digital artists and illustrators). Images can be and are widely copied and mutilated on the internet and this can damage the career of a photographer. Misuse, distortion and doctoring of images of people can damage the people in those photos.

We need stronger moral rights. If we don't get them the UK photographic community will decline.

The problem with digital images is that the embedded metadata can be removed. Photographers use the internet to sell themselves but images are constantly lifted. The Association of Photographers calls for "effective sanctions against those who deliberately extract metadata." When I asked later if they were asking for specific new anti-circumvention provisions in law to cover metadata in digital photographs Ms Thomas indicated with a nod that yes that was what they were interested in.

Simon Indelicate of the Indelicates band was the final speaker. He began by explaining he found the idea of copyright weird and then proceeded to outline the genealogy of one of his own songs, Savages, from the album Songs for Swinging Lovers. He described the song as being one of his favourite creations which he would hate to see mistreated. The song draws inspiration from -

Ode to my Family by the Cranberries - chords
Orchestration from someone else
Beat - "used in every dance track since 1985 and every indie song since 2003"
The savage from Huxley's Brave New World, a title stolen from Shakespeare
Paraphrased line from West Side Story
The phrase "sweat of the brow" as used in a particular video game
A section stolen from a poet who stole it from another poet which ended up sounding like something from The NeverEnding Story.
Samples from recordings made by a violinist

None of the parts were done by corporates. They were created by him being inspired by other creators. But he believes the resultant song is uniquely his and certainly uniquely important to him and his wife. Good art communicates and for that we need to be able to freely refer to our culture. Just like Milton freely referred to the Bible and Shakespeare. Creators need to be able to consume and use copyrighted materials.

He wants people to pay him for his creations but we need to recognise that our culture does not have the division between creators and consumers there used to be. Creation needs constant access - free and open access - and also a chain of recognition.

At this point the chairman, Alun Michael, called for questions from the floor, with an opportunity for the panel to respond at the end. The 'questions' mostly turned out to be statements rather than questions.

Q1. New technology is changing at an astonishing speed. Everyone has become a creator. Who needs to change fastest, intermediaries or legislators? (That, in fairness, was a question)

Q2. Could Gwen Thomas from the Photographers Association elaborate on how to draw the line between original work and what users can do with it? (Also a question. Pity Alun Michael didn't let the panelists respond at this stage. It might have set the tone for a dialogue.)

Q3. David Hammerstein of the TransAtlantic Consumer Dialogue (TACD) said copyright is not in harmony. Citizens violate copyright massively. Therefore we need to adjust the law to fit reality. He finds though he is almost reluctant to describe it as such a "luddite" resistance to this change. So at the point when we have the ability to digitise orphan works we get the EU constructing a law to prevent it. Copyright is almost absurd today. It is absurd that we need an international treaty to give blind and partially sighted people access to copyrighted works. 1.5 million Braille works can't be sent from the UK to India because it is illegal. It's very important to release orphan works and facilitate easy access for those with visual disabilities.

Q4. Paul Ellis, co-founder of Stop43, who successfully lobbied against photography provisions in the Digital Economy Act, said orphan works are only orphans as far as the discoverer is concerned. A photographer knows his own work is not orphaned. Calling the copying of orphaned works a victimless crime is nonsense. Copyright is a human right under Article 27 of the Universal Declaration of Human Rights. Creators have to be allowed to make money from the work we create. We can only do that through copyright.

Q5. A representative from the Open Rights Group asked Gwen Thomas if she could clarify whether it was moral rights or economic rights the Photographers Association was most concerned about. (Another question!)

Q6. A representative of the UK IPO mentioned they were working on a current government proposal that photographers should be equitably remunerated.

Q7. James Firth of Open Digital asked how the panel viewed the global jurisdiction issue particularly in the light of the two recent copyright extradition cases. (Note the Home Secretary, in the latest stage of the UK TVShack case, decided yesterday that student Richard O'Dwyer should be extradited to the US).

Q8. I asked Gwen Thomas if she was calling for a specific new anti-circumvention provision in law to cover meta data in digital photographs. She nodded.

Q9. Three or four (if EMI doesn't get rolled into Universal) music companies own 95%+ of the world's recorded music of the past 50 years. These middlemen are standing in the way of consumer money getting to creators. Transparency is important. We need clear audit trails of the cash flows.

Q10. Guy Fletcher of the Performing Rights Society (PRS) said they represent 75,000 writers and 5000 publishers. In answer to the point made by one of the speakers about the Monopolies and Mergers Commission, they also investigated the PRS and found them to be effective. About 60,000 of their writers don't make a living. Those 60k need the collective bargaining strength of the PRS. The Monopolies and Mergers Commission decided they were a necessary and benign monopoly. The PRS Board is run by creators and publishers. He welcomed the moral rights language in the 1988 copyright legislation. However the writing community suffer like the photographers. They bend to pressure and sign waivers.

Q11. A former MP and representative of the CRA asked Saskia Walzel of Consumer Focus when the interests of consumers should override those of creators. (Finished on a high with a question).

The panel then got the chance to respond in reverse order.

Simon Indelicate went first. He said the collecting agencies presented an interesting problem. When his band plays in small clubs in Germany those clubs pay large fees to the German collecting agency. As a result those clubs are barely financially viable. Yet his band never sees even a small proportion of the fees paid to the collecting society because they are too far down the food chain.

He believes we can improve the system with the aid of modern technology. The collecting agency system is too monolithic at the moment - everyone loses apart from Bono. On the points raised by Stop43 on unintended orphan works and moral rights, they are legitimate but all creators including Shakespeare stand on the shoulders of giants. Copyright's purpose is to ensure more culture is made. More culture is good for society and the Net is great at facilitating the creation of more culture. He doesn't like the idea of the law making the creation of culture more difficult.

He also has a problem with the claim that he has a right to make money doing what he does. As far as culture is concerned supply has exploded but demand has not kept pace. Yes photographers should get paid but they don't have a right to make a living from photography.

His final contribution addressed the first question - he didn't care if corporations (i.e. intermediaries) changed because their business models were already causing them to fail.

Whilst making his points he was subject to some heckling by Labour MP, Jim Dowd, who had originally been scheduled to be on the panel in his place. He responded to Mr Dowd robustly and was cheerfully supported in that endeavour by the chair, Alun Michael.

Next up was Gwen Thomas from the Photographers Association.
She was particularly keen to address the question from the Open Rights Group representative about whether they were primarily concerned about moral or economic rights. Moral rights were pre-eminent. The primary focus was integrity not money. But the building of reputation through the protection of moral rights enabled photographers to derive income from their work.

Mike Holderness from the Creators' Rights Alliance was next.
He has a problem with the corporation that scanned all the world's books without permission and put them online. A creator should have the right to object to the distortion of their work in a way which damages their reputation. He is pleased there is a sensible draft of a WIPO Treaty for an Improved Access for Blind, Visually-Impaired and Other Reading Disabled Persons. There were delays there because a lot of vested interests were trying to include crazy exceptions on the back of it.
Most importantly to round off Mr Holderness was emphatic about the need to level the playing field in terms of the relative bargaining power between individual creators and the corporations they do business with.

Saskia Walzel from Consumer Focus finished up the session for the panel.
She outlined some history explaining copyright was originally supposed to cover books and the law has been changed in response to changes in technology. In the UK we have had big changes in copyright law in 1911, 1956 and 1988. So it is not unusual that it gets changed to cope with new technology. It is the current rate of change of the technology that is the problem.

It takes about 3 years to update primary legislation. So we should make copyright legislation more technology neutral.

Creators should always be attributed as has been the case in most European countries since the beginning of the 20th century. That principle has not changed.

In the UK the time-shifting exception in 1988 has stood the test of time. Lots of language in the 1988 Act was technology specific (e.g. photocopying). Such language will not stand the test of time.

Creators are the first owners of copyright. They get that privilege so they can bargain with publishers. Shakespeare had no copyright but still made money. Copyright developed country by country. That's why Charles Dickens had so many problems with the US where so many publishers copied, printed and sold his books without ever paying him a penny. There was no mutual respect between countries or recognition of the copyrights of foreign authors until the Berne Convention was negotiated in the late 19th century.

We as a society have decided that rewarding creators is important. Some people are making money out of the copyright system. Too often these beneficiaries are not the creators. So we need to focus on reforming the contracts and licencing systems to ensure creators get a fairer share of the spoils.

Alun Michael then closed proceedings by expressing his admiration in principle for the notion of technology neutral laws. His concern is that technology makes everything unpredictable. Also that too often parliament is concerned with legislating to deal with specific problems of the day, rather than laying down blueprints of more general principles.

A few of closing notes:

1. Thanks to Consumer Focus for inviting me along.

2. I've attempted to report what was said accurately at this stage, rather than comment (with the exception being the comment about the way questions were handled). Regular readers will know I have a different perspective to a number of the views expressed.

3. It is irritating when the blogger spellchecker refuses to work on long posts - precisely when it is needed - and I have to cut and paste and check in an external word processor. If I've missed any typos let me know and I'll correct them.

EDPS opinion on the data protection reform package

2012-03-12T12:25:00.000Z

The European Data Protection Supervisor (EDPS), Peter Hustinx, last week issued his opinion on the European Commission's data protection reform package. The Commission announced proposed changes to EU data protection rules in January, including a proposal for a Directive covering data protection in law enforcement. He is impressed with the intent of the new general data protection rules and simultaneously "seriously disappointed" (code for "appalled") at the carving out of a special anything goes directive for law enforcement. There is a decent summary of the opinion in the associated press release.

"On the package, Peter Hustinx, EDPS, says: "The proposed Regulation constitutes a huge step forward for the right to data protection in Europe. However, we are unfortunately still far from a comprehensive set of data protection rules on national and EU level in all areas of EU policy. The proposals are disappointing in the law enforcement area, and they leave many existing EU data protection instruments untouched, such as the data protection rules for the EU institutions and bodies and also all the specific law enforcement instruments...

"The proposed rules for data protection in the law enforcement area are unacceptably weak. In many instances there is no justification whatsoever for departing from the rules provided in the proposed Regulation. The law enforcement area requires some specific rules, but not a general lowering of the level of data protection."

The EDPS is concerned in particular with regard to:

the lack of legal certainty about the further use of personal data by law enforcement authorities;
the lack of a general duty for law enforcement authorities to demonstrate compliance with data

protection requirements;

the weak conditions for transfers to third countries;

the unduly limited powers of supervisory authorities. "

In relation to new general Regulation on data protection he also has some specific concerns on the details:

the possibilities for restricting basic principles and rights;
the possible derogation for transferring data to third countries;
the excessive powers granted to the Commission in the mechanism designed to ensure
consistency among supervisory authorities;
the new ground for exceptions to the purpose limitation principle.

As usual with Mr Hustinx it is a thoughtful comprehensive opinion and whereas I don't expect many but privacy anoraks to read and inwardly digest the full 85 pages, the two page executive summary should be compulsory reading for all EU citizens. Expect the Commission to liberally use and abuse that description of the proposed regulation as "a huge step forward for data protection in Europe" whilst simultaneously ignoring and engaging significant energies to circumvent the serious concerns raised in the opinion.

BT, TalkTalk lose DEA appeal Part 2

2012-03-09T18:58:00.006Z

I've been thinking further on the BT DEA Court of Appeal decision, BT Plc and TalkTalk Telecom Group Plc -v- Secretary of State for Culture, Olympics, Media and Sport and others on Tuesday. This post will focus primarily on the data protection element of the case.

In my previous post I mentioned the Court's questionable assumption of balance in the text of the legislation and the associated lack of understanding of the technology. The other thing that concerns me about the decision was the selective perspective on legislative histories of the relevant legal instruments.

Then Secretary of State for Business, Innovation and Skills Peter Mandelson's road to Damascus like revelation, following a holiday with some rich friends and including a meeting with a well known entertainment mogul, that the UK 'needed' a 3 strikes regime, quickly led to the ill thought out Digital Economy Bill. This got rushed through parliament in the wash up of legislation before the last election becoming the controversial Digital Economy Act (DEA). The possibility of balance in the final text of the statute was effectively blown out of the water by the unseemly, unprecedented haste with which it was rushed through, the almost complete lack of parliamentary scrutiny of the bill and the universal lack of understanding amongst parliamentary representatives about what it was all about.

Let's look at some of the detail of that in the context of the data protection element of the case. As previously mentioned BT and TalkTalk challenged the act on four grounds. Firstly in relation to the technical standards directive and secondly the ecommerce directive. These aspects of the case I covered in my first post. Ground 3 of the challenge was based on the data protection directive and the privacy and electronic communications directive.

On the data protection directive the Court focuses on Article 8(1) and 8(2)(e)

"SPECIAL CATEGORIES OF PROCESSING

Article 8

The processing of special categories of data

1. Member States shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.

2. Paragraph 1 shall not apply where: ...

(e) the processing relates to data which are manifestly made public by the data subject or is necessary for the establishment, exercise or defence of legal claims. "

In High Court last year judge Parker originally concentrated his analysis of the data protection directive angle on the processing of personal data by copyright owners. As explained by Lord Justice Richards in the Court of Appeal decision this week:

"75. For reasons given at [152]-[157], the judge concentrated on the processing of data by the copyright owners, i.e. the processing involved in their identifying apparent infringements, together with relevant IP addresses and subscriber details, for the purpose of compiling copyright infringement reports: it was accepted that subsequent processing by the ISPs, including the sending of notifications and the completion of copyright infringement lists, would be compatible with the directive. The judge proceeded on the basis that the data processed by the copyright owners would be “personal data” and that, because of what might be revealed by the nature of the unlawfully copied digital material identified by the exercise, some of it would be special category data falling within Article 8(1). He held at [159]-[161], however, that such processing would fall within the exception in Article 8(2)(e). In particular:

“159. The Defendant and the Interested Parties rely on Article 8(2)(e) …: the processing is necessary for ‘the establishment, exercise or defence of legal claims’. That would appear to be the precise purpose of the contested provisions of the DEA: the copyright owner will be able, through the procedures under the DEA, to establish not only that there has been an infringement of copyright but also who is responsible for the infringement.”

So the judge bypassed the ISP processing of the personal data and concentrated on that done by copyright owners. He then concluded the data at the heart of the case was covered by article 8(1) privacy protection provisions but that article 8(2)(e), the right to pursue legal claims, was an absolute get out clause which facilitates fishing expeditions to detect copyright infringement via mass invasion of privacy. Contrary to European Court of Justice recommendations in the Promusicae case in 2008 (which I'll get to a little later in the context of the privacy and electronic communications directive) Judge Parker effectively decided that copyright protection trumps privacy.

BT argued that a substantial number of cases triggered by the DEA would not involve legal claims because it was estimated that 70% of ISP customers receiving warning letters would act to stop infringement associated with their account at that point.

"76. The appellants’ essential submission is that the judge lost sight of the fact that in a substantial proportion of cases the scheme established by the DEA 2010 is not intended to involve legal claims at all... assumption in the Government’s impact assessment for the statute that 70% of infringers would stop once and for all upon receiving a single notification from their ISP... if that is right, those cases will not get as far as inclusion in a copyright infringement list and there will be no prospect of a legal claim... “a principal aim of the measures is educational (so obviating legal action)”. In the light of those matters, Mr White submitted that the scheme would operate for the most part as an extra-judicial curtailment of copyright infringement, and he submitted that in those circumstances the processing could not be said to be necessary for the establishment, exercise or defence of legal claims and could not therefore fall within the exemption in Article 8(2)(e)."

Quite clever that - 70% of suspects will never get involved in legal proceedings so the personal data processing exception, article 8(2)(e) can't apply to these. The surveillance and processing of personal data in the case of the 70% cannot be considered to be necessary for the establishment, exercise or defence of legal claims.

Lord Richards sadly completely rejected that argument. His explanation feels a bit like saying the ends justify the means:

"77. I do not accept that submission. In my view the processing is plainly necessary for the establishment, exercise or defence of legal claims even if the beneficial consequence of the sending of a notification by the ISP pursuant to a copyright information request will be that in the majority of cases the infringing activity ceases and no further action is required. As Mr Saini QC observed on behalf of the Interested Parties, the fact that the scheme seeks to educate users about the legal rights of copyright owners and to encourage them to desist without the need for legal action does not mean that the copyright owners are not establishing, exercising or defending their legal rights. It no more has that effect than does the sending of a letter before action to an infringer in the hope that he will desist. In my view, therefore, the judge was right to find that the processing in question in this case would fall within the exception in Article 8(2)(e)."

The mass processing, he suggests, is necessary and 8(2)(e) applies because it facilitates the sending of warnings equivalent to cease and desist letters. It's a defensible perspective but I think it avoids addressing the fishing expedition issue. I'm wondering if there is Supreme Court (doubtful) or ECJ guidance on the specific interpretation of 8(2)(e) in this kind of context that would help here?

Lord Richards then concludes his assessment of the data protection directive's impact on the case by mentioning the European Data Protection Supervisor's (EDPS) clear opinion (relating to ACTA negotiations) that mass personal data processing for 3 strikes regimes was disproportionate and in breach of EU data protection laws; but the noble Lord rounds off by stating that EDPS opinion is not binding on the Court so does not alter his view on article 8(2)(e).

"78. I should mention for completeness that the appellants placed reliance in this context on an Opinion dated 22 February 2010 of the European Data Protection Supervisor (“the EDPS”) on then current negotiations by the EU of an Anti-Counterfeiting Trade Agreement with third countries. We were told by Mr Saini that the Opinion was provided by the EDPS of his own motion and was based on the EDPS’s own understanding of what was then proposed. At paragraph 52 of the Opinion, in relation to the possible imposition on ISPs of a “three strikes internet disconnection policy”, the EDPS acknowledged that the collection of targeted, specific evidence, particularly in cases of serious infringements, might be necessary to establish and exercise a legal claim, but he cast doubt on the legitimacy of wide-scale investigations involving the processing of massive amounts of data of internet users. It is not clear that he had Article 8(2)(e) of the DPD specifically in mind, but if he did it is difficult to see why the applicability of that provision should depend on the scale of the operation. In any event the view expressed by the EDPS is not binding on us and it does not cause me to alter my own view that the processing in this case would fall within Article 8(2)(e)."

Whereas it is true that the EDPS's opinion is not binding on the UK, Lord Justice Richards casual dismissal of the scale factor here is rather worrying: "it is difficult to see why the applicability of that provision should depend on the scale of the operation". Seriously? If the judiciary can’t understand that scale changes everything we have a potentially insurmountable problem. Yet I'm flummoxed on how to get that through to a distinguished judge in terms he would understand.

Possibly what we have here is a Court seeing a problem through the lens of the strongest possible contrast of the false privacy v security dichotomy. When the problem is constructed as the balancing of the privacy of a single individual against the security of a whole nation or society, then the needs of the many outweigh the needs of the few. In this case, the privacy of the individual (remember scale doesn't matter according to Lord Richards), especially a suspected pirate hiding his nefarious copyright infringing deeds and therefore unworthy of the rights of decent law abiding citizens, has to be weighed against the interests of an important industry. Do we want to protect the dirty pirate - the underlying unspoken assumption being that privacy is fundamentally about concealing bad behaviour - or the livelihoods of thousands of people dependent on that industry? Again it's a no contest. The greater good favours protecting the many by protecting the industry. The abstract societal value of protecting the privacy of the individual is incalculable but nebulous. And the absence of evidence to the effect that this mass privacy invasion will help the industry is not even a factor that remotely touches the cognitive radar of the learned judge. Routine copyright warning notices or the 3 strikes regime almost inevitably bound to emerge from the DEA will not solve the industry's internet copyright infringement problem. Machines, transmission pipes and storage are getting faster, bigger and cheaper and copying is only going to increase in volume.

I got a little side-tracked there but the scale and the framing of the problem are critical when it comes to protecting privacy and finding sustainable business models for the >entertainment industry. Lord Richards took slightly less space to dispose of the BT challenge based on the privacy and electronic commerce directive than he did in the two pages of the decision dealing with the data protection directive.

The privacy and electronic commerce directive articles 5 and 6 impose obligations regarding the confidentiality of communications and traffic data. Article 15(1) is the universal get out clause here and provides for bypassing confidentiality when it is:

"a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph."

Note that copyright protection is not included in that list of reasons to ignore privacy. However, in paragraph 80 of the judgment, Lord Richards uses the Promusicae decision from the European Court of Justice to conclude that protection of copyright can be used as an excuse to bypass privacy obligations imposed by the directive. It is true that the ECJ in Promusicae said that article 15 could provide a route around privacy obligations when it involved "the protection of the rights and freedoms of others." The ECJ indeed clearly stated that music labels had the right to protect their copyrights. The fundamental foundation of the Promusicae decision, though, was that copyright owners rights must be balanced with the basic human rights of users of the Net. Having access to the Net is now a basic part of nearly everyone's life in the developed world and it relates to basic rights to

free expression
freedom of association
education
and employment

and the ECHR and every other serious international charter of rights says that if a law is not proportionate it is not legal. Copyright does not trump privacy according to the ECJ. Even with the legitimate aim of defending or protecting copyrights, the ECJ clearly instructed member state governments that they are not to endanger human rights or proportionality. Professor Lilian Edwards of Strathclyde University actually thinks that the Promusicae decision was a clear warning from the court aimed directly at the kind of 3 strikes notice and disconnect schemes the French have implemented and that might emerge from the DEA. That Promusicae, therefore, should be used in defence of the position that protection of copyright does trump privacy is something of an anomaly.

BT's final shot on the privacy and electronic communications directive was that the the recent judgement of the European Court of Justice in Scarlet v SABAM (Case C-70/10, November 2011), negating the demand that the ISP install a copyright filtering system, supported their argument that article 15 could not be an excuse for copyright trumping privacy. Lord Richards simply responded that the Scarlet case was effectively not relevant here and rejected that argument.

I'm not going to spend a lot of time on the fourth and final ground on which BT brought the case, the Authorisation Directive, (2002/20/EC), save to say that both BT, the original judge made some fair points. Though I would question the semantic hair splitting of both sides in paragraph 97; and the concluding implicit value judgment in that same paragraph that the DEA strikes "a proportionate balance between the free market and the protection of copyright."

Now just three final points to note on the authorisation directive. Firstly at paragraph 95, Lord Richards says:

"95... the Commission’s comments on the French legislation which permits measures to be taken against internet users who commit copyright infringement online. In those comments the Commission recognised that copyright protection is a general interest objective of a kind referred to in Article 1(3). As to the Commission’s comments on the draft Costs Order, the fact is that the United Kingdom persisted in its reliance on Article 1(3) but the Commission took no further action, which is at least consistent with an acceptance by the Commission that Article 1(3) is applicable."

This sounds a little like deciding to take the legislative history of the directive into account when it supports the Court's perspective on the case but ignore it when it doesn't.

Secondly, Lord Richards does agree with BT's counsel, Mr White, that: "all costs and charges under the DEA regime, including “relevant costs”, are to be regarded as “administrative charges” within Article 12.
What matters is substance, not form:" So the ISPs had a partial win on the authorisation directive.

Thirdly, I predict that Lord Richards final paragraph on the authorisation directive where he says:

111... I do not think that anything material is added by recourse to the principle of non-discrimination or the desirability of technological neutrality. "

will be repeatedly taken out of context. I confess I can't resist the temptation to be the first to do so. This statement on its own is a simple example of the learned judge's lack of understanding of the technology.

So there you have it. The decision was predictable though questionable in the underlying assumption of balance in the text of the legislation. It's disappointing that that judiciary continue to have a problem understanding the technology and the difference that the scale of surveillance and data processing has on this whole landscape. We techies have to get better at explaining it to them.

What we have here is a clash of values even more than of law or of vested economic actors like telcos and the entertainment companies. Perhaps we need a modern day Samuel D. Warren or Louis D. Brandeis to create a navigation blueprint, internet constitutional framework or just a base level equivalent understanding of the impact of the technology of the information society on our fundamental right to privacy.

BT, TalkTalk lose DEA appeal

2012-03-07T16:01:00.004Z

The Court of Appeal (Civil Division) issued its judgment in the case of BT Plc and TalkTalk Telecom Group Plc -v- Secretary of State for Culture, Olympics, Media and Sport and others yesterday.

They rejected BT's and TalkTalk's challenge of the Digital Economy Act (DEA), as did Justice Parker in the High Court last April.

In many ways it was a predictable outcome but nevertheless frustrating, both for the lack of understanding of the technology displayed by the Court and the underlying assumption of "balance" in the wording of the key legal instruments on display.

The contested provisions of the DEA impose "initial obligations on ISPs to notify (s124a) customers of copyright infringement reports (CIRs) received from copyright owners; and to provide (s124b) copyright infringement lists (CILs) to content owners if an "initial obligations code" is in force. The initial obligations code could be self regulatory (s124c) - worked out between the telcos and copyright owners - or imposed by Ofcom (s124d) in the event the relevant agents can't agree amongst themselves. S124e gives a fairly detailed list of the things that the initial obligations code is supposed to cover eg CIRs, CILs, what suspect identification has to be expedited, who pays what, administrative specifics, proportionality, transparency, non discrimination and other provisions. The DEA also empowers the Secretary of State to decide rules about the relative responsibilities for costs arising from the initial obligations code.

The DEA also allows the future introduction of blocking measures or a 3 strikes regime or, more accurately, future "technical obligations" on ISPs to police copyright infringement. The case was not concerned with these technical obligations - only the initial obligations code and the relative costs provisions.

The ISPs are exorcised by the demands the DEA initial obligations code is imposing on them. They appealed Justice Parker's rejection of their challenge on 4 grounds.

Firstly they content the obligations (sections 124 a to e of the DEA) should have been notified to the EU Commission under the requirements of article 8(1) of the Technical Standards Directive. Lord Justice Richards (in para 24 to 45 of the judgment) rejects the claim on the basis of European Court of Justice precedents (Case C-317/92 Commission v Germany 1994 and Case C-194/94 CIA Security SA v Signalson SA and Securitel SORL 1994) which suggest that the initial obligations code, once the details are worked out, will be notifiable to the Commission under the directive, but the primary legislation from which the code is derived is not notifiable, since it's not detailed enough to be a technical standard.

BT made some sound detailed arguments on this eg when (para 34) they suggest the original judge might have been mistaken in saying "that the ISP would not be liable to receive or take action on a copyright infringement report “unless” a code was in force: “unless” suggests that there might not be a code, whereas the statute requires there to be one." This is a very fair point but on the substance of the precedents they lost the overall argument on points in relation to the technical standards directive.

Secondly they challenged on the basis of a perceived twofold breach of the Electronic Commerce Directive.

"(1) that the effect of the contested provisions is to render ISPs potentially “liable for the information transmitted”, contrary to Article 12, and (2) that the contested provisions amount to restrictions on the freedom to provide information society services from other Member States, “for reasons falling within the coordinated field”, contrary to Article 3."

Lord Richards quotes liberally from the original High Court judgement of Justice Parker here. Justice Parker basically liberally praised the balance of the legislation (eg. he explained he was concerned about "doing violence" to the language and thereby "upsetting the careful balance represented by the text"); whilst saying that making an ISP police copyright infringement is not the same as making them liable directly or vicariously for copyright infringement. So forcing ISP into incurring costs of policing does not trigger making them liable as "mere conduits" and therefore article 12 of the directive doesn't apply. It's a defensible and possibly even clever position but the notion that it is "balanced" is too deferential to the legislature and a long way out of sync with such evidence as is available regarding the proportionality of the mass surveillance the DEA facilitates. Lord Richards uses paras 46 to 60 of the judgment to do little more than agree with that position.

The argument in relation to article 3 of the ecommerce directive, which excludes copyright from its scope, was slightly more convoluted. Basically BT argued that the DEA was not a copyright statute so therefore not excluded from section 3. The government argued and the judges agreed that it was a law related to copyright and therefore excluded. There was an argument too about whether the copyright and related rights directive provided an upper limit on what member states could do with copyright law (BT's position) or whether it was a baseline ("a minimum harmonising measure") and didn't prevent the enactment of more restrictive measures. BT lost that one too.

"70. At the time when the Electronic Commerce Directive was adopted, “copyright” in the Annex to the directive must in my view have had its normal meaning, encompassing all aspects of the law of copyright under national laws, and cannot have had the elaborate meaning attributed to it by the appellants. At that time there was no harmonising directive at the Community level in the field of copyright protection. It would be unrealistic to impute to the Community legislature, at least in the absence of clear, express language to this effect, an intention to give “copyright” a meaning related to provisions of a copyright directive that had not yet been adopted. But if “copyright” did not have the appellants’ meaning at the outset, I do not see how it can have come to acquire that meaning subsequently. The later adoption of the Copyright Directive cannot of itself have had the effect of changing the meaning of the expression. It would have needed an express amendment of the Electronic Commerce Directive to achieve that result, but no such amendment has ever been made.

71. In my judgment, that is sufficient to dispose of the appellants’ case under Article 3 of the Electronic Commerce Directive."

Ground three of the appeal was on the basis of the data protection directive and the privacy and electronic communications directive. My perspective on that central element of the case and ground 4 in relation to the authorisation directive will be the subject of a later post.

Do authors still need publishers?

2012-02-29T13:14:00.002Z

I've been in touch with the publisher of my first book, Springer, about writing another one, this time on systems failures in regulating the internet. I would like to release it under a creative commons licence and price it at less than £15.

Springer was one of the first big publishers to try open access publishing as far back as 2004, primarily with academic journals. They describe their perspective on open access thus:

Open access publishing makes articles published in a journal freely and permanently available online. Open access journals operate in the same way as traditional journals, including stringent and thorough peer-review. The only difference is the business model, whereby a fee is levied upon publication. Articles are then freely available and can be redistributed and reused as long as the article is correctly attributed.

And this short video gives a decent overview:

The company is fairly new to releasing books under creative commons licences but told me that if I wanted to go down that route there would be an initial fee and that the print version of the book would be priced at £44.95.

By coincidence I was reading Anthony Horowitz's article in yesterday's Guardian, Do we still need publishers? when the further details came through from Springer by email. The fee would depend on the number of pages in the book. The minimum fee would be €15,000 if the book was shorter than 200 pages; and €75 per page for longer books. So a 312 page book (like my first) would cost €23,400.

On Springer's open access journals there appears to be a reliance on authors' academic institutions providing the up front publishing fee. So it was a natural question from Springer's perspective to ask whether the Open University would be interested in providing some funds for me to publish my book with them under a creative commons licence. The answer, given the funding squeeze on universities in the UK, is no.

There are a lot of very smart, hard working and dedicated people at Springer but, even if universities were not facing financially straitened circumstances, €20k+ up front for publishing a book is not a good business proposition. Hopefully my friends at Springer will find a more viable and sustainable model for publishing creative commons and open access books. Until then I'll have to look for another publisher if I want to CC my next book.

Anthony Horowitz, by the way, concluded we do need publishers and he values highly the important values and standards they bring to the table.

"I asked my own publisher, Jane Winterbotham, why I needed her and she came straight back with the reply. She said she'd call me next Tuesday...

Jane is a brilliant editor ... without Walker, Alex Rider would never have seen the light of day...

...my feeling is that in some indefinable way, having a publisher raises the bar...

Publishers do, I think, provide an imprimatur, a sort of quality control... I don't like being what Apple calls "talent". I'm an author. And I write books, not "content"...

... traditional publishers have less to fear from the digital revolution than they think... For me, the digital revolution offers fantastic opportunities – if you grab hold of them."

The outline of the book I sent to Springer was -

Systems failures in regulating the Net

1. Systems

What's a system?
The internet: a complex system
Our system of governance and regulation

2. Systems failures

ICT systems failures
Regulatory systems failures
Internet regulatory failures
A pattern emerges: Vaughan’s normalisation of deviance

3. Decision making on Net regulations

Garbage cans rule: technological ignorance of policymakers
The shift key circumvention tool
Rationality drought
Reactionary politics: "Events, my dear boy, events"
Think tanks and grand plans
Media, politics and the criminal justice system: a case study in phone hacking
Benjamin Franklin v hacking
Money - republic lost

---> normalisation of deviance in the institutions of regulation

4. Copyright rehashed

The internet and piracy as progressive taxation
Innovation not lawsuits
BT v Secretary of State for Business on the Digital Economy Act
BBC HD DRM saga
Golan v Holder - Eldred all over again?
EU term extension 2011
Google book settlement
ECJ SABAM v Scarlett
Post SABAM web filtering alive and kicking
SOPA and PIPA: social network activism a temporary blip?
The economics of copyright
Robert Heinlein, 1939 thought for the day

5. Crime

The 24 hour news cycle and politicians
Cybercrime
Something must be done.
We've done something.
Something has been done
EU stupid plans to mandate web blocking
Cybercrime booming business in economic hard times
McKinnon and O'Dwyer
Legislate in haste, repent at leisure

6. Erosion of liberty bit by bit, byte by byte

Privacy a thing of the past: the nothing to hide fallacy
Social networks: anti privacy architectures and norms
Stolen phones and consequences: AMP v Person's Unknown [2011] EWHC 3454 (TCC)
US Supreme Court and medical privacy: Sorrell v. IMS Health Inc.
Teaching hospitals and the Gordian knot of medical privacy
No data protection on NHS Choices
EDPS and the data retention directive
R v Commissioner of Police of the Metropolis on DNA and fingerprint retention
Free speech and the intermediaries as choke points
Net neutrality and/or co-regulation
Great firewall of China… + UK + US + …
How Islamophobia has become socially acceptable
Wikileaks and Bradley Manning: saint or sinner
Search & seizure: US v Jones on GPS tracking
School fingerprinting and the ASCL: convenience and deviance
UK, the Human Rights Act and the European Court of Human Rights
A patent on what?! IBM, Apple, Google, Amazon, Facebook, Intel, Microsoft and Turing
Judge Bonello’s last stand
A UK bill of rights or a constitution for cyberspace?

7. End runs and trade negotiations

GATT, WTO, TRIPS
WIPO treaties
Cybercrime treaty
EU Directives
ACTA: transparency lost & Commissioners at war

8. Avoiding normalised deviance in regulating the Net

Understand the technology and science
Fundamental principles of social regulation apply
Law and cyberspace
---> Sagan's Demon Haunted World: Science as a Candle in the Dark

Judge rules TV Shack O'Dwyer should be extradited

2012-01-19T16:02:00.002Z

I've been meaning to write about the O'Dwyer TVShack extradition decision since District Judge Purdy made his ruling on Friday but I'm still (and sadly looking likely to continue to be) buried in zombie bureaucracy. Catherine Lee at Jeremy Phillips' ever reliable IPKat blog, however, has done a terrific analysis and pretty much saved me the job. Mr O'Dwyer challenged the extradition order on 3 grounds (see section 3 of Judge Purdy's ruling):

"Firstly that this Request is not an extradition offence(s) per S.78(4)(b) Ex Act 2003 i.e. the complaints do not meet the dual criminality requirement of the conduct being, if committed in this jurisdiction, an offence(s) here as well as in the U.S.A. Secondly that it would be “unjust or oppressive” by virtue of the passage of time from the alleged offences to extradite for trial per S.82 Ex Act 2003. Thirdly that it would be disproportionate to order extradition and thus breach his Article 8 ECHR (family life) Convention rights as enshrined in the Human Rights Act 1998 and per S. 87(2) Ex Act 2003. A material gloss, if I may so term it, on this third challenge is a submission that if any offence(s) is/are to be prosecuted such can/should take place in this jurisdiction, the so called forum issue."

The passage of time argument was unlikely to pass muster and precedent meant the odds were against him on article 8 but I originally thought he had a fair case on the dual criminality issue. He still might have on appeal but as IPKat succinctly explains the key question will be the interpretation of Section 107 of the Copyright, Designs and Patents Act 1988:

"Dual Criminality: for this Kat, this was arguably the most intriguing aspect of the case. Counsel for the US Government argued that the substantive offence committed by Mr O'Dwyer was contained in s. 107(2A) of the Copyright Designs and Patents Act 1988::
'A person who infringes copyright in a work by communicating the work in public
(a) in the course of business, or
(b) otherwise than in the course of business but to such an extent as to affect prejudicially the owner of the copyright commits an offence if he knows or has reason to believe that, by doing so he is infringing copyright in that work'.
Counsel for Mr O'Dwyer sought to refute this by relying on 'mere conduit' exception as set out in Regulation 17 of the Electronic Commerce (EC Directive) Regulations 2002 and applied at first instance in the Gloucester Crown Court in R v Rock & Overton (2010) (the TV Links case, noted by TorrentFreak here). Counsel also submitted that Mr O'Dwyer did not 'make available' copyright material that came from remote websites.

Counsel for the US Government went very close to arguing that TV Links was wrongly decided. In any event, Counsel sought to distinguish Mr O'Dwyer's behaviour from the restrictive decision in TVLinks. First the TVShack websites were entirely in the hands of Richard O’Dwyer and his co-conspirators, requiring third parties to sign up to TVShack and be vetted before going further. Secondly, unlike TVLinks, there was no attempt to protect copyright, as Mr O'Dwyer knew materials were subject to copyright and actively taunted already-cited efforts in June 2010 to seize TVShack.net.

In a short conclusion, Judge Purdy found in favour of the US Government. He stated:
'To my mind there is much in the distinction factually, always remembering these matters are allegations of conduct which a trial court alone can resolve – that Mr Jones contends between the instant matter and Rock & Overton. I also have in mind the mischief Parliament had in mind. Accordingly in my judgement I am satisfied the conduct alleged in the instant request meets the dual criminality test and would be an offence in this jurisdiction'.

[...]

This Kat was looking forward to a more rigorous discussion of the meaning of 'communicating the work in public' in s 107(2A). She notes that the Copyright and Trade Mark Enforcement Notebook for Trading Standards Officers prepared by the Federation Against Copyright Theft (FACT, whose self-stated 'primary purpose is to protect the United Kingdom’s film and broadcasting industry'), available here on the UK Intellectual Property Office (IPO), website states (at 8) that:
The offence in s107(2A) is now available as a tool to trading standards officers to prosecute uploading file sharers of digital product, such as film and music, whether or not they do so in the course of a business.
As such, this understanding from an organisation which is in favour of IP owners is that s. 107(2A) would not cover the encouragement of others to download film and TV program files from third party websites.

The IPKat asks the $64,000 question: what is your understanding of 'communicating the work in public' in the context of s 107(2A)?"

I hadn't fully appreciated that FACT favored an interpretation of s107, at least in the context of their advice to trading standards officers, that would work to Mr O'Dwyer's advantage.

Human rights: the root of all evil

2012-01-12T16:30:00.010Z

The UK is currently taking its turn at the head of the table at the Council of Europe (Nov'11 to May '12) the objectives of which are

to create a common democratic and legal area throughout the whole of the continent, ensuring respect for its fundamental values: human rights, democracy and the rule of law

Cue the Mail, the Telegraph and rights-for-all-except-those-we-don't-like politicians peddling the 'human rights are the root of all evil' meme again.

Let's get something straight from the start - both the Mail's and the Telegraph's headlines are misleading. The Mail screams Europe's war on British justice: UK loses three out of four human rights cases, damning report reveals. The Telegraph's is a more staid, apparently factual statement ECHR: Britain loses 3 in 4 cases at human rights court.

Now look at the actual statistics published by the Court. Take, in particular, the riveting, graphically agreeable and accessible report, European Court of Human Rights Statistics on judgments by State: Statistics 1959 - 2010. The graphic on page 21 shows the UK's status. I'll reproduce it here for clarity:

Just look at that pie chart again. Only 3% of the cases that the UK faces in the European Court of Human Rights ever get to a judgment. 97% are rejected as inadmissable or struck out. 97%. Of the 3% that go through the full process in the Court, the UK has lost 271 and won 86 of a total number of 357 cases since 1959. So the UK loses about three quarters of 3% of cases or about 2.3% of the cases that it faces in the ECHR.

It's worth repeating that - the UK loses only a little over 2% of its cases at the ECHR. To use a favorite UK sporting metaphor, that's one helluva batting average. So the Mail's notion that the ECHR is making a mockery of British justice is somewhat difficult to defend. In fairness to the Telegraph, although the heading is misleading, the body of the article is largely devoted to reporting on the report that makes the claims. Unfortunately it's the heading that will stick in the mind.

It is ironic, though, that mainstream media and politicians, in a country that fought two world wars in the 20th century and has been and continues to be engaged in multiple other military adventures in the name of freedom, take such an antagonistic perspective on human rights. I'm not necessarily defending the ECHR as an absolute bastion of virtue. At the opposite end of the scale the Court has been criticised for taking such a convoluted approach to human rights law that its decisions have little wider application. It might be a perenniel target for rabble rousing media and politicians but it was not the Court that was at fault when it ruled against the UK in relation to the shooting of unarmed terrorist suspects or the hacking of a police chief's phone because she was suspected of having "frolicked in her underwear".

If the benchmark is that someone loses their basic rights as soon as they can be labelled a terrorist or as falling the wrong side of some nebulous sexual (or other) morality line, then then that is sad, dangerous and pretty scary. Even a small campaign group working to stop an energy company dumping waste into local lakes have been labelled "domestic extremists" (aka terrorists). So it's always worth remembering when the rights-for-us-not-for-them brigade are on the march, that ordinary people get unexpectedly caught on the wrong side of that we-don't-like-you-so-you-don't-have-any-rights line.

Update: Human Rights blog on same. Adam Wagner's interpretation of the figures is slightly different as he also considers the cases where there were eventual "friendly settlements/striking out judgments" and "other judgments", of which there were 65 and 21 repectively (or 357+65+21=443 in all). The more detailed figures are available in the Court's Violation by Article and by Country 1959-2010 table.

Update 2: the UK's success rate in 2011 was even better - "of the 955 applications against the UK decided, the court found a violation of the convention in just eight cases." A success rate of 99.2% i.e the UK lost only 0.8% of its cases in the Court last year

John Naughton's new book now available

2012-01-06T11:04:00.002Z

John Naughton's terrific new book, From Gutenberg to Zuckerberg: What you Really Need to Know About the Internet, is now available.

Recommend, nag until they agree to get it or better still stick a copy in the grubby hands of every single person of influence you know who doesn't get the Net. They won't be able to put it down once they start and they'll thank you every time they are faced with a big technology related decision.

We could begin to build a significantly different world if the next piece of crackpot Internet regulation that appears in Parliament or Congress or the EU is met with policymakers muttering "the web is not the Net", "disruption is a feature not a bug", "Orwell and Huxley are the bookends of our future, good grief he's right!", while flicking through a well thumbed copy of John's book.

Here's John talking engagingly about why he wrote the book and an outline of ideas therein:

and his related Observer article from 2010.

AMP v Persons Unknown: privacy injunction on stolen mobile images

2011-12-21T15:54:00.000Z

There was a really interesting interim injunction granted in a privacy case, AMP v Person's Unknown [2011] EWHC 3454 (TCC), in the UK High Court yesterday.

AMP v Persons Unknown

A young woman (AMP) had her mobile phone stolen. The phone contained sexually explicit images of the woman which subsequently appeared on a free online media hosting service, tagged with her name and Facebook profile. She found out about this via messages from strangers on Facebook and contacted the hosting service which removed the images. She was also threatened via Facebook by a 'Nils Henrik-Derimot' that if she did not add him as a Facebook 'friend' he would expose her identity and spread the images widely online. She deleted these threats and blocked the sender.

The images were subsequently uploaded to a Swedish BitTorrent site tagged with AMP's name and consequently came top of the search results when that name was plugged into any of the major search engines. Her solicitors had some success in getting these links removed from the searches through DMCA takedown notices in the US.

AMP is now pursuing this case in a effort to "prevent the spread and indexing of the image files by preventing their storage and transmission" within the UK.

Andrew Murray, professor of law at the LSE, was consulted as an expert witness and he explained the nature of BitTorrent technology. The Court's understanding of his testimony is laid out in paragraphs 9 to 18. The Court accepts that torrent seeders can be identified via their IP addresses and therefore prevented (or ordered to cease) from transmission, storage and indexing of the images in question. The Court also accepts (paragraph 17) that

it is also possible to prevent internet search engines from indexing particular sites or files which contain specific words; in this case the descriptor file containing the Claimant’s name could be filtered out on that basis. He says that this would then prevent wide-scale access to the “.torrent” file and again because of a lack of seeders the distribution by the BitTorrent protocol would cease to occur.

Whereas this is a genuinely valiant effort at providing the Court with advice on how to frame an order to protect someone subject to blackmail and harassment, the practical problem is that it is easy to produce an alternatively labelled descriptor file which could evade the filters. It seems fairly clear that Prof Murray pointed this out to the judge as Mr Justice Ramsey, in his concluding order, attempts to address the issue by prohibiting the creation of derivative files.

The case was brought against "persons unknown" because until the torrent seeders could be identified, via their IP addresses through their ISPs, they could not be party to the proceedings; but delays involved tracking down these people could lead to an increased spread of the images causing further damage to AMP. However it was straightforward to define a class of defendant, "namely any person in possession or control of any part or parts of the relevant files containing the relevant digital photographic images".

The key issue in terms of the practicalities of any injunction, not explicitly referred to by the court but nicely articulated by Andrew Murray, was that AMP was an ordinary person, not a modern celebrity or person of interest to the tabloid media. So people sharing or torrenting the sexually explicit images are likely to know or be acquainted with AMP personally. Therefore there is a fair chance they will be resident in the UK and hence subject to the jurisdiction of the Court. Any injunction with sufficiently severe sanctions related to its breach would have a respectable chance of succeeding in deterring people who know AMP from spreading the images around. It is a little depressing to note that that partial protection declines exponentially if ever AMP did attain some degree of celebrity, as long as the images remain in the possession of actors with nefarious intent or purposes.

In terms of the legalities, AMP claimed the protection of the Copyright Designs and Patents Act 1988, the Human Rights Act (article 8 privacy) 1998 and the Protection from Harassment Act 1997. Mr Justice Ramsey focused exclusively on the latter two in his judgement. He gives a very careful analysis (paragraphs 23 to 38) of the human rights issues and why AMP's right to privacy clearly, in this case, trumps the (Article 10 free speech) right of persons unknown to store, index and distribute AMP's photos. Likewise he concludes AMP has a case for protection from harassment:

"44. ... I consider that, on the current evidence, there has been conduct on at least two occasions; the conduct was targeted at the Claimant; it was calculated, in an objective sense, to cause alarm or distress; objectively judged it would be oppressive and unacceptable in the context in which it occurred and, in my judgment would cross the line and be conduct which amounts to harassment, alarm or distress.
45. There is therefore a good arguable case that the conduct of disseminating the digital photographic images amounts to harassment of the Claimant under the Protection from Harassment Act 1997 and that this is a case where it is appropriate to grant an injunction."

The judge also re-affirms an earlier order under civil procedure rule (CPR) 39.2(4) that AMP's anonymity be maintained (paragraph 46) before concluding with a strong interim injunction.

"Conclusion
47. ... I consider that this is an appropriate case for the court to grant relief both in relation to a breach of the Claimant’s right to privacy and also a breach of the provisions of the Protection from Harassment Act 1997.
[...]
49. This is a case where the Claimant is entitled to an interim injunction to prevent the distribution of the digital photographic images, either by conventional downloading from a site or by downloading by the use of the BitTorrent Protocol.
50. I therefore grant an interim injunction in the following terms against persons unknown being those people in possession or control of any part or parts of the files listed in Schedule C to the order who are served with this order:
(1) shall immediately cease seeding any BitTorrent containing any part or parts of the files listed in Schedule C of this Order.
(2) must not upload or transmit to any other person any part or parts of the files listed in Schedule C of this Order.
(3) must not create any derivatives of any of the files listed in Schedule C of this Order.
(4) must not disclose the name of Claimant (or any other information which might lead to her identification) or the names of any of the files listed in Schedule C of this Order."

AMP's legal team will now need to identify and contact UK residents whose computers are involved in the further distribution of her images. Anyone involved in such activity, whatever their motives might be, would be well advised to stop. This was a civil action but breach of the injunction attracts criminal sanctions. See sections 3(6) and 3(9) of the Protection from Harassment Act.

For the moment AMP has had a clear win in the High Court. However, it follows years of expensive legal proceedings in the UK and US, the embarrassment and stress of having intimate photographs on public display and no indication that the original phone thief and/or blackmailer(/s) or possibly collective of actors of disreputable intent have been found. Though the police were notified of the phone being stolen there is no indication in the decision whether there was a subsequent criminal investigation either of the theft or of the blackmail. I assume, since it was a civil case, there was no criminal harassment investigation or proceedings and the deletion by AMP of the Facebook blackmail threats may have made such an investigation difficult.

In a lot of ways this was an easy case for the judge to decide. The rights of the ordinary woman, with no celebrity status, to privacy and protection from harassment, trump those of unknown persons spreading her private photos around the internet. The injunction may help to cut the distribution of the images by people resident in the UK, as AMP and her legal team hope, but it can't fully repair the damage of what's happened. It will be interesting to see if the 'not a celebrity' feature has a wider application in the future.

Council conclusions on the open internet and net neutrality in Europe

2011-12-13T16:15:00.000Z

The Council of the European Union has published the Council conclusions on the open internet and net neutrality in Europe. Some highlights:

The Council adopted the following conclusions:

"THE COUNCIL OF THE EUROPEAN UNION

1. WELCOMES
The Commission Communication of 19 April 2011 on "The open internet and net neutrality in
Europe"...

3. RECOGNISES...

d) The importance of preserving the open character of the Internet and ensuring the
maintenance of a robust best efforts Internet for all while respecting fundamental rights
such as media pluralism, linguistic diversity, freedom of expression and information as
well as freedom to conduct a business;

e) The need to encourage investment in new network infrastructures by both the public and
private sector, without prejudice to the negotiations on the Multi-Annual Financial
Framework, and to allow innovative business models to serve the needs of the market.

4. NOTES
a) That, although ICT is fundamental to the running of EU economies across all sectors, the
establishment of a well-functioning competitive digital single market still poses challenges
that need to be addressed;

b) That the open character of the Internet fosters innovation by creating a level playing field
for all actors involved and significantly contributes to the fulfilment of the Digital Agenda
for Europe goals;

c) The existence of some concerns, in regards to

- Discriminatory forms of traffic management and treatment of data, in particular
throttling of data and blocking of content, applications and services;
- Price transparency and quality of service, in particular the discrepancy between
advertised and actual delivery speeds for an Internet connection;
- Network congestion, mainly as a result of growing data streams;
- Sustainability of business models of network operators and Internet service
providers, due to investments needed to adequately respond to the growing
Internet traffic;
- Personal data protection.

d) The positive steps that can be taken by industry, in consultation with other stakeholders
and in coordination with National Regulatory Authorities, to provide effective transparency
to end users, notably on the scope of their services and on issues such as traffic
management, connection speeds and any restriction placed on data delivery.

5. UNDERLINES
a) The need to preserve the open and neutral character of the Internet and consider net
neutrality as a policy objective, which is consistent and interrelated with a number of
policy objectives already identified in article 8 of Directive 2002/21/EC (Framework
Directive) and with the corresponding provisions included in the amended EU Regulatory
Framework for Electronic Communications Networks and Services, namely in aspects
such as the promotion of the ability of end users to access and distribute information or run
applications and services of their choice, the increased transparency in the characteristics
and conditions of the service providers and the powers conferred to National Regulatory
Authorities to impose minimum requirements on quality of service;...

e) The importance of the enforcement by National Regulatory Authorities of the provisions
under the EU Regulatory Framework for Electronic Communications Networks and
Services (inter alia article 20 of Directive 2002/21/EC -Framework Directive-, article 5 of
Directive 2002/19/EC -Access Directive-, articles 20, 21 and 22 of Directive 2002/22/EC -
Universal Service Directive-), including promoting the publication of transparent,
comparable, adequate and up-to-date information on applicable prices and tariffs as well as
quality of service;

f) The importance of ensuring efficient transparency, i.e. enabling consumers to make better
and informed choices, particularly through effective implementation of articles 20 and 21
of Directive 2002/22/EC (Universal Service Directive) and the promotion of innovative
technological solutions;

g) The importance of addressing the issues of discrimination and degradation of service that
may arise from certain traffic management practices (inter alia blocking, hindering and
restrictive connection and interconnection policies), particularly through effective
implementation of article 22 of Directive 2002/22/EC (Universal Service Directive);

h) The importance of promoting the ability of users to create, distribute and access online
content, applications and services of their choice, as required in Directive 2002/21/EC
(Framework Directive);

i) The importance of the application of the principle of technology neutrality, underlying the
objectives of the EU Regulatory Framework for Electronic Communications Networks and
Services;

6. WELCOMES...

c) The Commission’s commitment to issue a Code of existing EU Online Rights by 2012...

7. INVITES THE COMMISSION TO
a) Encourage its dialogue with Member States and stakeholders on net neutrality while
supporting Member States in ensuring the rapid development of broadband;

b) Monitor, jointly with BEREC, the issue of traffic management to allow for a smooth flow
of proportional, necessary and transparent traffic management practices that do not affect
net neutrality; ...

d) Continue studying, with the support of BEREC's investigations, any aspects of net
neutrality where significant and persistent problems are substantiated, including charges
and conditions that mobile operators impose on VoIP users as well as throttling of content,
applications and services;...

e) Further assess, jointly with BEREC, the discrepancy between advertised and actual
delivery speeds occurring in Member States, and report to the Council and to the European
Parliament on the situation thereof by 2012;

8. INVITES MEMBER STATES TO
a) Encourage the application of the principle of net neutrality and continue their dialogue with
the Commission and stakeholders on the openness of the Internet and net neutrality, taking
into account ongoing analyses;
b) Ensure the open and neutral character of the Internet as their policy objective.

9. INVITES STAKEHOLDERS TO
a) Continue the dialogue with Member States, National Regulatory Authorities, BEREC and
the Commission to further the benefits of an open and innovative Internet;

b) Develop behaviours and economic choices that support an open Internet platform, thus
preventing the exclusion of small players and innovative models, and enabling access to, or
the transmission of, online content, applications and services;

c) Seek wide consensus on the aspects of net neutrality through balanced discussions between
all participants in the knowledge economy and the Internet and electronic communications
sector, civil society and users' organisations."

Just to sum up, they

welcome an open & neutral net in Europe
recognise the importance of net neutrality but accept the maintenance of a robust best efforts Internet for all
understand the need for network infrastructure development
understand openness facilitates innovation
have concerns about discriminatory traffic management, throttling and blocking; price transparency and quality of service; discrepancy between advertised and actual delivery speeds; network congestion; personal data protection.
underline the need to preserve the open and neutral character of the Internet and for National Regulatory Authorities to address discriminatory anti-neutrality behaviour on the part of network operators
emphasise the importance of the ability of users to create, distribute and access online
content, applications and services of their choice
welcome the Commission’s commitment to issue a Code of existing EU Online Rights by 2012
would like member states to sign up to net neutrality as a policy principle or objective
encourage public and civil society involvement in policy development

That's a round to the net neutrality advocates, though the important get-out clause for industry is in 3(d) "ensuring the maintenance of a robust best efforts Internet for all". The telcos and big technology companies can drive a plethora of coaches and horses through that. And in fairness to them, as long as infrastructure capacity and investment are overloaded and underfunded respectively, they have a defensible stance. Despite the economic crisis it's time for Keynesian network economists to be making the case for massive modern infrastructure investment and development.

There is no such specific get-out clause for the copyright industries when the Council Conclusions underline "The importance of promoting the ability of users to create, distribute and access online content, applications and services of their choice, as required in Directive 2002/21/EC (Framework Directive);"

Overall it is, perhaps, a surprisingly positive commitment in principle by the EU Council to an open and neutral internet. Whether it will have any real meaning in practice remains to be seen.

Council of Europe book on media and human rights

2011-12-09T18:53:00.015Z

At the invitation of Article 19, I attended the launch of a new Council of Europe book on Human Rights and a changing media landscape yesterday at the Free Word Centre in London. Thomas Hammarberg, the Council of Europe Commissioner for Human Rights, led the panel of authors in a wide ranging discussion of freedoms in a digital age. The website has a nice synopsis of the book

"The media play a crucial role in the protection of human rights. They expose human rights violations and offer an arena for different voices to be heard in public discourse. Free, independent and pluralistic media are a core element of any democracy. However, the power of the media can also be misused to the extent that the very functioning of democracy is threatened. Some media outlets have been turned into propaganda megaphones for those in power. Others have been used to incite xenophobic hatred and violence against minorities and other vulnerable groups.

Now the phenomenon of social media presents us with a range of fresh challenges. Blogs, video and social networking sites have become a key forum for political debate and organisation – so much so that they have provoked counter-responses from some repressive states. While there is a need to ensure better protection of personal integrity in social media, the right to freedom of expression must not be undermined.

The purpose of this publication is to contribute to a more thorough discussion on media developments and their impact on human rights in a constantly changing media landscape. Eight experts were invited to contribute their personal assessments of trends and problems. They have not shied away from addressing controversial issues or providing far-reaching suggestions. Together their texts indicate that there is a need for stronger protection of media freedom and freedom of expression in Europe today. These are clearly topics of paramount importance which demand serious public debate."

But actually there is nothing like hearing it first hand from the authors.

The Commissioner opened proceedings noting the human rights cause really needs a free and professional media. Rights organisations fundamentally depend on free and professional media but he is seriously worried about current trends in this area all over the world. We can note the positive effects of social media and the internet's value for demonstrators. But governments have been very active in regulating new media and it is important that we understand how to avoid strangling fundamental rights of freedom of association and expression in the process.

Some of the threats are the same as they have been with traditional media and the Commissioner wanted to highlight the abuse and murder of journalists in Russia, Turkey and Azerbaijan. In some of these cases a killer has been caught and prosecuted but those responsible for orchestrating the murder have escaped and continue to escape justice. This creates a chilling effect where people are afraid to speak out for fear of their lives.

There are other pressures on a free press such as the criminal defamation laws in about half the member states of the Council of Europe. In some cases these laws lead to journalists getting imprisoned or subject to disproportionate and unreasonable fines. This also creates a chilling effect. There are currently 70 journalists in prison in Turkey as a result of their writings alone.

Governments like to control media output and that desire for control is not limited to repressive regimes. Hungrary's implementation of a new liberty bashing media law earlier this year at the same time as the country was holding the presidency of the EU is an important example.

Freedom of information is fundamental, the Commissioner believes.

Another threat is monopolies in the private sector. Pluralism in radio and newspapers is under a more serious threat than for a very long time. The oligarchs who control the media have their own agendas and bend their media control to serve those interests. The Commissioner noted that transparency of ownership is key here but even that apparently obvious condition has become controversial in Albania. Many journalists have been dismissed for attempting to do old style investigative journalism in particular when there was a possibility it might expose some nefarious activity that might be associated directly or indirectly with media oligarchs or their preferred social/professional/political circles.

The ethics of journalism is under threat, an important example being the News of the World phone hacking scandal. It is important that the Leveson inquiry gets full support and comes up with recommendations that will be useful not just in the UK but in the wider European context.

The Council of Europe formally supports self regulation of the press. But the Commissioner bluntly stated that it simply has not worked in many countries, including most of Europe. Why is that? Well very often the dominant media don't cooperate because it doesn't fit the interests of the oligarchs in control.

The result is there is less ethical journalism and serious journalists are having difficulty being heard. You could argue, therefore, that there is a case for public service media. Where there has been public service media it has been positive but we can't ever believe they will be completely objective. The holy grail of total objectivity does not exist but public service media where they exist should strive to be as objective as possible.

The Commissioner therefore asked a collection of experts to contribute to the book and the 6 chapters therein broadly cover the points he outlined above.

Dr Agnès Callamard, Executive Director of Article 19, followed Commissioner Hammarberg

So there is a pressing need for public service media but the trend is not looking good on this. And the financial crisis has been an extra burden/excuse in that regard.

The disturbing trend of physical violence against journalists continues. A journalist in Azerbaijan was murdered 2 weeks ago.

Additionally Dr Callamard is concerned about legal violence against journalists and has observed a "deterioration by imitation" around Europe as countries copy each others' worst laws. There has been some progress on the decriminalisation of defamation but not much. The use and abuse of defamation laws remain a major impediment to freedom of expression. There are multiple legal attacks in this area in western as well as eastern and central Europe.

And quite simply regulatory violence has a chilling effect.

Dr Callamard wanted to highlight the case of Hungary's terrible media law. Hungary is a member of the Council of Europe and the EU. When they got away with it, others will emulate it.

She also noted that the OSCE met this week and declined to adopt a declaration on freedom in a digital age. Yet the fundamental freedoms don't change with technological development so press freedom does need to be protected in our digital age.

Ali Sheikholeslami, the London correspondent for Euronews, who was chairing the panel, at this point noted it had been a "dark cold summer" for journalism with the phone hacking scandal and occasionally off the back of that it sometimes makes him ashamed to admit to anyone he's a journalist.

Aidan White, author of chapter 2 on ethical journalism and human rights, then came in and robustly suggested there was no reason for journalists to feel ashamed of their profession. The issue in the News of the World case was corporate culture not journalism. It was also important to note that the nefarious criminal behaviour involved was exposed not by the police, the self regulators or the government but by journalists.

Mr White passionately believes we have to look again at the principles and values that underpin journalism and that this should feed into ethical behaviour in public life as a whole - including politicians and corporate leaders.

How do the media respectfully report the cruelties and tragedies of the world in which we live? Journalism is in crisis but sound ethical investigative journalism has a great future. Good journalism, contrary to popular opinion, dominates access to information on the Net. The debate about principled behaviour in journalism is really important but it can't be restricted to newsrooms.

Ethics has to be management led. (Mr White is a very articulate, convincing and passionate speaker but at that point I have to admit that the thought "is that a realistic prospect" ran through my head.).

He noted a lot of key problems are highlighted in the book and that we have to deal with energetic and sustained deceit in journalism.

Do we do this through regulation? Well in nearly every country the print press is self regulated and the broadcast press is subject to statutory regulations. Changing technology makes this approach useless. Therefore we need an open debate. But we don't need what has happened in Hungary. Though they have not used the draconian tools in the law there yet, they will. South Africa are doing likewise and both have used the News of the World phone hacking scandal as an excuse.

The notion that media organisations can avoid any form of statutory control is not sustainable. It is probably no longer possible to have self regulation of the press. Co-regulation, that awkward compromise between statutory and self regulation, is the necessary path forward but we need to have the hugely important public debate on this. It may also be necessary to have a privacy law but there must be built in protections in such a law for public interest journalism.

Prof Douwe Korff, joint author of chapter 6 along with Ian Brown, was the next speaker. Prof Korff explained social media have features that are different to conventional media the most obvious being access to speech tools and audiences which were previously restricted to the professionals or the wealthy. He suggested the problem with social media was that ordinary people use it for private communications whereas organisations use it for professional ends. At the professional end of the scale you can apply legal and ethical standards. Private communications have different legal boundaries.

The technologies that are widely used for censorship in despotic regimes are the same technologies supposedly used for benign ends - like controlling copyright infringement or distribution of child pornography - in the West.

The data retention directive requires mass surveillance of people not suspected of any crime. How's that for a despotic law?

When technology can be used for abusive ends it will be so adopted and we have no cause to be smug in that regard in the West because governments and the private sector are engaged in unethical mass surveillance using these technologies.

Human rights standards are universal and should apply in the online as well as offline worlds. Offline they can be tailored to the specific sovereign jurisdiction and the European Court of Human Rights accepts multiple variations in the specific regulations governing freedom of expression in member states. Yet if we are to apply the most restrictive of these laws online then you end up with unconscionable cases like the US citizen of Thai descent getting arrested and jailed for two years when he visited Thailand for something he wrote on the Net in the US. Such transnational applications of domestic legal standards lead to real problems.

Another key issue in relation to human rights is that the internet is effectively controlled by the private sector. How, therefore, do you ensure the private sector not only respects but also upholds the rights of users? These private companies are not equipped to do so. They cannot be expected to make subtle human rights judgments. They are in business to make money so neither are they motivated to protect the rights of users.

So when these companies operate in repressive regimes they will do the will of those regimes and we have seen multiple examples of this.

Prof Korff also mentioned he is working with his fellow author Ian Brown on a framework to encourage the private sector to respect human rights. In many online contexts punishment is arbitrary, lacks transparency, lacks due process, with limited access to remedies or appeals. That is not an environment in which human rights will be respected and so intermediaries like the telecoms companies and ISPs need support in protecting human rights.

Boyko Boev of Article 19 and co-author with Barbara Bukovska of chapter 5 on public service media and human rights, was the last of the panel into the fray before the audience got the opportunity to ask questions. He symbolically instructed the audience to open the book at page 133, the first page of his chapter, before pointing out that public service media is a hot issue in Europe. The problems with public service media in Europe have been highlighted by a Council of Europe expert group. Their report noted 4 key issues

1. the transition from public service broadcasting to public service media
2. competition with the private sector
3. securing the independence of public service media from the state and the powerful private sector
4. lack of funding

He tried to look at public service media from a human rights perspective focusing on transparency and accountability and found it instructive to use the epistemological framework relating to a "rights based approach to development". And the Article 19 issue paper, Public service media regulation in Europe: future or funeral was his starting point.

The problem of public service media is not recognised in a lot of countries.

From an economics perspective there is no money. From a human rights perspective there is no question but that public service media are essential.

Then Ali Sheikholeslami addressed 2 questions to Aidan White and Commissioner Hammarberg:

1. How do we guarantee conglomerates will not have too much power
2. How do we guarantee governments don't undermine freedom of expression.

Mr White answered that transparency and disclosure are the key - who is saying what and why; who owns what; what are their interests etc. It is scandalous for corporate power to have influence without disclosing potential conflicts of interest.

On regulation we need to modernise the root and branch of regulatory institutions because the existing ones are creaking and not fit for purpose. We have an opportunity to move towards more forms of self rule and we have to find a way to make self regulation workable through co-regulation. This can't be a restraint on the right to report but a regulatory body should have the power to do minimal investigations and e.g. call witnesses. The Press Complaints Commission is bound by a lack of authority.

We can make self regulation more creditable through co regulation.

Commissioner Hammarberg concluded this part of proceedings by noting transparency is really important. He had just come from Ukraine where private sector media oligarch control and public service media control are coming together just as it did in Italy under Berlesconi and likewise in Georgia and Azerbaijan. He agrees with Mr White that self regulation, attractive though it might be in principle, does not work in practice. We need a thorough analysis of how to make it effective without restricting or damaging freedom of expression. The idea of having a co-regulatory legislative basis is worth discussing and exploring. But the key is who is going to be involved in making such laws and civil society's input is crucial. The structures of the EU are certainly not ready to take this on, however.

At this point the floor was opened to questions and I will endevour to do another short report on the Q&A when time and a following wind allow.

The lobbyists and the PM: Bell Pottinger calling the kettle black

2011-12-06T11:37:00.002Z

The Independent's front page story today is on PR company Bell Pottinger's alleged influence on the UK government. It's based on an undercover investigation carried out by the Bureau of Investigative Journalism.

I'm not a big fan of lobbyists but some of the individuals caught on camera actually come out of the story slightly better than you might expect. They are quoted as showing interest in working to improve the image of the Uzbekistan regime but only if that government demonstrates an intent to improve its behaviour on human rights.

"A number of [our client] governments have had serious reputational issues,"[...]
But he also stressed a need for genuine commitment to reform. "Everything we are recommending is predicated on the agreement by the government to change," he said. "[That] justifies why a PR company is representing a country which previously people shouldn't have been talking to. Now it actually wants to change it is fully acceptable."

Another executive stressed, whilst talking about one of the firm's clients: "I wouldn't actually represent a client whom I didn't believe."

He added: "Just trying to sell the situation as it is or to say that things are changing when in reality they aren't is not going to work. Once we're clear that we've got the collateral, the proof that things are changing, then obviously we have the connections to get the message through to the right people."

They're also reported as boasting easy access to and influence over government, though that's hardly surprising in a meeting where they are attempting to promote their services to secure a lucrative contract.

It's probably the government and in particular the prime minister who comes out of this with the least credit, if the PR consultants (or the journalist's reports) are to be believed. Mr Cameron and the deputy prime minister Nick Clegg have been repeatedly quoted about the damaging effects of the disproportionate degree to which lobbyists and big business influence government. They even have plans for a register of lobbyists.

The alleged lightning speed at which a business can get a message through a PR firm to the prime minister, who then instantly takes that complaint to a foreign head of state, in this case China, therefore, will be cause for concern. Whether that concern arises from being found out or a desire that such influence should not be so powerful is another question. What was predicatable in the world of Westminster, the media and PR was that the PM's office would issue a denial:

"Bell Pottinger nor any other lobbying firm has any say or influence over government policy."

The almost amusing part of the story comes at the tail end where, through their lawyers Carter Ruck, Bell Pottinger declare:

"The conduct of the Bureau of Investigative Journalism does not remotely constitute responsible journalism. It is an attempt by unethical, deception to manufacture a story where none exists."

A case of the Bell Pottinger calling the kettle black? {Assuming you define a kettle (or the Bureau of Investigative Journalism) as 'a vessel designed to withstand high temperatures, used in various processes such as refining and brewing' (stories)}

Open University Access to Success fund for poorer students

2011-12-01T14:39:00.000Z

I just got an email from the Open University's Director of Development regarding a fund the OU are setting up to facilitate access to our courses for poorer students who will not have access to student loans or the government's new National Scholarship Funding. It deserves wider circulation hence I've reproduced a copy below.

"Dear Colleague,

I am writing to you as I am concerned about future funding for some widening participation students in England who take part in introductory Openings courses. For many students, successfully completing an Openings course means that they have the skills and the confidence to forge ahead to complete their chosen qualification.

However, the new National Scholarship Programme will not be available to Openings students, and nor will those students be eligible for loans. Those courses, though, are a vital gateway to OU study and give confidence to people with no prior Higher Education experience.

We have created an Access to Success fund which will specifically provide financial support for Openings students who cannot afford to pay their own fees. The University has asked the Development Office to raise money for this fund to ensure that those taking their first steps into Higher Education can do so without finance being a barrier to entry. I was delighted that the first £100,000 was donated by OU students themselves through a generous gift from the OU Students Educational Trust. I am now writing to you as a member of staff to ask you to consider making a donation. A wider fundraising appeal will start next year.

Ahead of a public launch, we have been given a time-limited opportunity for donations to be matched by Sir Alec Reed CBE, a friend and generous supporter of the OU, and the OU’s Pro-Chancellor and Chair of Council, Lord Haskins. It means that a donation made next week through The Big Give Christmas Challenge (Sir Alec’s fundraising initiative) could be match-funded by both The Big Give and Lord Haskins. In addition, Gift Aid can be added. This means that in total, a donation of £10 could be worth £23 towards the new fund.

This is the first time that many OU staff members have been directly asked to consider making a donation to the University. These are unprecedented times for the institution. We are determined to ensure that we can continue to provide opportunities for the most disadvantaged.

Many members of staff already choose to contribute in this way. The OU is an educational charity and, over the years, many of its alumni, students, staff and friends have shown their support through donations. In fact, just last year, more than 9,000 people and organisations made contributions to the University totalling more than £2.4 million.

As a member of staff, your contribution to enriching our students’ lives is invaluable. I am hoping that you might consider joining me in supporting our students through this appeal and I will be in touch again next week to let you know how to donate.

Best wishes,

Edith Prak

Director of Development

The Open University"

ICT & schools - we're getting it all wrong

2011-11-28T12:02:00.001Z

The Next Gen. Skills campaign is kicking off today:

"One of the founding fathers of interactive entertainment and fiction Ian Livingstone OBE and Double Negative MD Alex Hope OBE will announce that some of the biggest names from the UK digital, creative and hi-tech industries have joined up with leading skills and educational bodies to back a new campaign aiming to improve the computer programming skills needed for the future growth of the UK’s economy.

Launching a day before the Chancellor’s Autumn statement, the Next Gen Skills campaign showcases:
Announcement of major industry supporters
Key policy objectives and industry demands
How high-tech skills contribute to the growth agenda
Reactions to the Government’s response to the Livingstone-Hope Review"

Three cheers for Alex Hope on the BBC this morning where he did a great job of explaining to the ever technophobic Today folk the importance of teaching kids about how computers work. It is a truly appalling indicator of the state of our broadcast culture and education system that we are even having to ask the question.

I knew the ICT curriculum in schools was not even in terminal decline - that would have implied it once had a spark of life in it - but completely devoid of even the pedagogic DNA that might one day give it life, on talking to an ICT teacher a few years ago. He explained to me with some enthusiasm one of the "exciting" activities, particularly for the boys, his class had been engaging in for that past few weeks. The activity? Drawing up a balance sheet for a hypothetical car dealership using Microsoft Excel.

"Exciting?" I queried, a little less impressed than he had anticipated.

"Because Boys like cars, don't you see." he replied, baffled at my lack of outwardly visible joyful exhilaration (or was he just amazed at my remarkable self control?).

Kids learn more about computers from mucking about with Gamemaker or Scratch or the dreaded (by parents) MMORGs, or the plethora of wireless enabled gadgetry they own than they do in a school ICT class. IF the substantive chunk of the next generation, necessary to sustain a robust 21st century economy, are to learn to use computer and networking tools creatively and productively then it is vital that it be underpinned by a strong educational infrastructure.

It's an opportune time to remind people of the 20 recommendations of the Livingston Hope Review:

"Twenty recommendations across the talent pipeline

Schools

Recommendation 1. Bring computer science into the National Curriculum as an essential discipline.

Recommendation 2. Sign up the best teachers to teach computer science through Initial Teacher Training bursaries and ‘Golden Hellos’.

Recommendation 3. Use video games and visual effects at school to draw greater numbers of young people into STEM and computer science.

Recommendation 4. Set up a one-stop online repository and community site for teachers for video games and visual effects educational resources.

Recommendation 5. Include art and computer science in the English Baccalaureate.

Recommendation 6. Encourage art-tech crossover and work-based learning through school clubs.

Recommendation 7. Build a network of STEMNET and Teach First video games and visual effects Ambassadors.

Recommendation 8. Introduce a new National Video Games Development and Animation Schools Competition.

Recommendation 9. Design and implement a Next Generation of Video Games and Visual Effects Talent Careers Strategy.

Recommendation 10. Provide online careers-related resources for teachers, careers advisers and young people.

Universities, Colleges and Vocational education

Recommendation 11. Develop kitemarking schemes, building on Skillset accreditation, which allow the best specialist HE courses to differentiate themselves from less industry-relevant courses.

Recommendation 12. HEFCE should include industry-accredited specialist courses in their list of ‘Strategically Important and Vulnerable’ subjects that merit targeted funding. Industry commits to these courses through industrial scholarships and support for CPD for lecturers.

Recommendation 13. Raise awareness of the video games and visual effects industries in the eyes of STEM and arts graduates.

Recommendation 14. Give prospective university applicants access to meaningful information about employment prospects for different courses.

Recommendation 15. Develop a template for introducing workplace simulation into industry-accredited video games and visual effects courses, based on Abertay University’s Dare to be Digital competition.

Recommendation 16. Leading universities and FE colleges sponsor a high-tech creative industries University Technical College (UTC), with clear progression routes into HE.

Recommendation 17. Kitemark FE courses that offer students the best foundation in skills and knowledge to progress into Higher Education.

Training and continuous professional development

Recommendation 18. Skillset Creative Media Academies and e-skills UK’s National Skills Academy for IT to work with industry to develop specialist CPD training for video games and visual effects industries.

Recommendation 19. Support better research-oriented university-industry collaborations in video games and visual effects.

Recommendation 20. Continue to treat the 18 visual effects occupations on the Government’s shortages list as shortage occupations."

None of this is new - you'll see the same recommendations in multiple government reviews of maths, science and language education. Some of it I don't agree with - the kite/quality mark stuff is energy sapping, distracting, superficial inspection based tick box nonsense. But the baseline recommendation:

of putting smart dedicated teachers together with decent tools/facilities, a broad based relevant curriculum with sufficient professional freedom to experiment and kids with a natural curiosity about this stuff

would, if the political establishment had sufficient guts and long term vision to pursue it [sic], create magic.

ECJ rule out blanket filtering in Scarlet v SABAM

2011-11-24T16:29:00.004Z

The European Court of Justice has published its decision in the case of Scarlet v SABAM, Case C‑70/10. This is the Belgian case where the entertainment industry and creative artists representative body SABAM had sued Scarlet, an ISP, in an effort to have the respondent compelled to install filters. The filters desired were pretty broad and crude, though, and the Court, predictably, ruled in favour of the ISP, on a narrow interpretation of the facts.

Expect a positive spin on the decision from both sides in spite of the apparently crystal clear outcome in favour of Scarlet.

The conclusion was:

"the Court (Third Chamber) hereby rules:
Directives:
–        2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’);
–        2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society;
–        2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights ;
–        95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and
–        2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications),
read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering
–        all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;
–        which applies indiscriminately to all its customers;
–        as a preventive measure;
–        exclusively at its expense; and
–        for an unlimited period,
which is capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual-property rights, with a view to blocking the transfer of files the sharing of which infringes copyright."

The bottom line is that the Court believed the ISP level filtering demanded by SABAM, a system to filter:

– all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

– which applies indiscriminately to all its customers;

– as a preventive measure;

– exclusively at its expense; and

– for an unlimited period,

was over-reaching. That the decision was so short - a mere 55 paragraphs - and clear is an indication that it wasn't that difficult a challenge for the Court in relation to the specific facts of the case.

I can only agree with Jeremy Phillips, however, that the decision is quite narrowly focused and the race will now be on to see what kind of filtering will be considered acceptable. Newzbin 2 anyone?

The Court makes reference to the excessive surveillance features of the SABAM demanded filtering system and the disproportionate interference with

(a) the right of the ISP to engage in commercial enterprise and
(b) the fundamental rights of the individual

that such filtering would result in.

They also refer approvingly to the earlier ECJ Promusicae case which emphasised the need to respect intellectual property rights but not at the expense of more fundamental freedoms such as privacy and free expression. The key elements are:

"39 Preventive monitoring of this kind would thus require active observation of all electronic communications conducted on the network of the ISP concerned and, consequently, would encompass all information to be transmitted and all customers using that network.

40 In the light of the foregoing, it must be held that the injunction imposed on the ISP concerned requiring it to install the contested filtering system would oblige it to actively monitor all the data relating to each of its customers in order to prevent any future infringement of intellectual-property rights. It follows that that injunction would require the ISP to carry out general monitoring, something which is prohibited by Article 15(1) of Directive 2000/31...

43 The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.

44 As paragraphs 62 to 68 of the judgment in Case C‑275/06 Promusicae [2008] ECR I‑271 make clear, the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights...

47 In the present case, the injunction requiring the installation of the contested filtering system involves monitoring all the electronic communications made through the network of the ISP concerned in the interests of those rightholders. Moreover, that monitoring has no limitation in time, is directed at all future infringements and is intended to protect not only existing works, but also future works that have not yet been created at the time when the system is introduced.

48 Accordingly, such an injunction would result in a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly.

50 Moreover, the effects of that injunction would not be limited to the ISP concerned, as the contested filtering system may also infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

51 It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.

52 Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.

53 Consequently, it must be held that, in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.

54 In the light of the foregoing, the answer to the questions submitted is that Directives 2000/31, 2001/29, 2004/48, 95/46 and 2002/58, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an ISP which requires it to install the contested filtering system."

So in summary the SABAM required filtering system is crude and damaging because it doesn't respect the right to privacy, freedom of expression or the freedom to conduct a business. The case is a nice illustration of why Cory Doctorow argues that there is no longer such a thing as copyright policy but doesn't really get us a whole lot closer to a ceasefire in the copyright wars.

Update: ECJ press release on the decision is also available. What's interesting about the press release is that it states the decision of the Court in stronger terms than I suspect the Court intended:

"EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files
Such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between, on the one hand, the right to intellectual property, and, on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information"

A reading of the press release alone may have led some members of the press to interpret the decision as meaning that filtering on copyright protection grounds is universally prohibited. What the Court actually said was that the specific kind of filtering demanded by SABAM would breach a plethora of directives on ecommerce, copyright & related rights, data protection and intellectual property enforcement.

Update 2: SABAM are disappointed.
Glyn Moody wonders if it is a turning point in EU law.

Minister: UK music industry a huge success

2011-11-23T17:59:00.000Z

Largely unremarked in the mainstream press the Parliamentary Under-Secretary of State for Culture, Olympics, Media and Sport, Ed Vaizey, (and other MPs) had some very upbeat things to say about the UK music industry in the House of Commons yesterday. His contribution to the discussion begins at 1.49pm.

"I congratulate my hon. Friend the Member for Selby and Ainsty (Nigel Adams) on securing this important debate. The fact that so many hon. Members have attended, intervened and made speeches shows that there is large-scale recognition throughout the House of the success of the music industry, and support for it...

We talked about the huge success of the British music industry—and it is a staggering success, with almost £4 billion of sales. Britain is the only country apart from the United States and Sweden that is a net exporter of music..

We have a thriving and vibrant music scene...we have a vibrant music ecology in this country..."

Sadly he also engaged in loose platitudes about "intellectual property theft", the alleged dazzling brilliance of the digital economy act and the Newzbin blocking activities and vague references to the Hargreaves report.

It does beg the question though that if the UK music industry is doing so spectacularly well, why so much energy continues to be expended on the expansion of copyright? It would also be interesting from an economic perspective to see the underlying evidence for the suggestion that it is currently a nearly £4 billion industry and what specifically that £4 billion entails.

BBC legal advice on HD DRM

2011-11-18T18:26:00.000Z

The BBC has now responded to my internal review request in relation to disclosing their legal advice on competition issues associated with HD DRM. The review is very thoughtful and the analysis of the issues clear and enlightening. In summary the response suggests that:

(a) the BBC had no formal structured legal advice on the competition issues relating to introducing DRM on the HD Freeview platform;

(b) the legal advice that was sought was ad hoc and given in email communications on a range of issues over a number of weeks;

(c) the BBC should disclose the draft document (“Draft Submission”) they prepared on some of the competition and copyright legal issues which was intended for submission to Ofcom (but in the end not actually submitted);

(d) the BBC are going to review the relevant document before releasing a redacted copy by the 25th of November (next Friday).

Copy of the review below.

"Reference:
IR
2011027

Date:

17
November
2011

Original Request and the BBC’s Decision
By a request made on 6 June 2011, the requestor sought copies of all BBC
communications with Ofcom relating to the Ofcom consultation “Content
Management on the HD Freeview Platform”. A number of documents were
then disclosed by the BBC under cover of a letter from Steve Gutteridge (BBC
Distribution) dated 8 July 2011.

The requestor then raised a series of questions relating to the disclosed
material. Relevant to this internal review, the requestor asked if the BBC had
sought and/or received “professional legal advice on the competition issues
relating to:

(i)
Mandatory DRM removing the ability of consumers to purchase
receivers without DRM and the BBC leveraging its position as
holder of the multiplex licence to mandate DRM thereby affecting
competition at the level of the manufacturers;

(ii)
Rights holders’ possible collective efforts to pressurise public
service broadcasters into mandating HD DRM?”

In its response dated 25 August 2011, Rachel Ward (Information and
Compliance) confirmed that the BBC “did seek legal advice on our approach
to HD content management”.

Perhaps not surprisingly, the requestor then, on 25 August 2011, requested
disclosure of that legal advice and also copies of BBC documents and/or
briefings summarising that advice. On 23 September 2011, Mr Gutteridge
wrote to Mr Corrigan informing him that the BBC was withholding this
information on the basis that it was subject to legal professional privilege. It is
this final decision that I am now asked to review.

Issues Under Review

Although the requestor has asked that the review focus on the foundation of
one argument relied on by Mr Gutteridge (that legal professional privilege is
perhaps at its strongest where it relates to a public body or quasi-public body),

I do not consider it to be my role to scrutinise specific pieces of reasoning
which led to the decision to withhold information. My role is to look at the
issue afresh and to decide whether an exemption applies in respect of the
information that is sought. I therefore summarise the issue that I am to
address simply in the following terms:

Whether the Section 42 (1) exemption (legal privilege exemption) requires
that the information be withheld.

Consideration
In undertaking this review, I have considered the provisions of the Act and the
guidance issued by the Information Commissioner’s Office and the Ministry of
Justice on the exemption relating to legal professional privilege. I have also
consulted individuals within the BBC, both in its Legal Division and in BBC
Distribution, who were responsible for advising the BBC on the content
management proposals relating to HD on the DTT platform and for
corresponding with OFCOM on this issue.

I have gathered together a very considerable body of information relating to
the BBC’s proposal for content management on the DTT platform. In many
instances, one or more internal lawyers were party to internal communications
which fed into the BBC ‘s response to Ofcom’s consultation on HD Content
Management. However, having spent a very considerable amount of time
gathering this information and reviewing it, it is clear that only occasional input
was sought or offered by lawyers on competition law issues. It is important to
note, also, that there was no set piece formal legal advice that was provided
and, further, that the legal issues addressed in this advice do not closely
mirror the two issues highlighted by the requestor.

My assessment, therefore, is that legal advice was sought and given in email
communications on an ad hoc basis over a number of weeks on a range of
issues (“the Advice”), only some of which touch on (but do not mirror) the
issues highlighted by the requestor. In addition to the Advice, a document
was prepared for possible submission to Ofcom outlining some of the
competition and copyright law issues that had been identified. It appears from
my enquiries that this separate legal document (“the Draft Submission”) was
not in the event submitted to Ofcom.

The requestor is seeking the BBC’s internal legal advice and also
documents/briefings which summarise that advice. I consider that the Advice
corresponds with the first category of documents and that the Draft
Submission corresponds with the second category.

Notwithstanding the requestor’s observation that not all advice given by
lawyers is privileged legal advice (based on the House of Lords decision in
the Three Rivers Litigation), the wording of the request makes it clear in my
view that peripheral advice relating to business issues that may have been
provided by lawyers is not is what is being sought. The requestor in terms
seeks “professional legal advice” on “competition issues relating to two
specific issues”. Any presentational and/or commercial advice given by a
lawyer would fall outside the scope of the request. I am satisfied, therefore,
that the Advice held by the BBC is subject to legal professional privilege.

Section 42 (1) is for qualified exemption and it is therefore necessary to
consider the public interest test. In this case, apart from furthering the general
public interest in disclosure of information relating to public authorities, it also
possible that the public interest is served by the public understanding the
tenor of legal advice that was received may further the BBC’s accountability in
respect of the its actions. However, in the absence of a formal, structured
piece of advice on the competition law issues highlighted by the requestor, the
disclosure of the Advice would in fact shed little light. I consider that the public
interest in disclosure is clearly outweighed in respect of the Advice by the
public interest in legal privilege being maintained (recognised by the
Information Tribunal in Bellamy v Information Commissioner as being a strong
public interest). I see no factor in other words which displaces the public
interest in an organisation being able in confidence to seek and be given
candid legal advice on complex legal issues.

However, slightly different considerations apply to the Draft Submission
because, although this can be seen as addressing some of the same issues
as the Advice, it was prepared with a view to being provided to Ofcom as
representing the BBC’s considered position on the legal issues it addressed. It
was therefore prepared with a view to any legal privilege attaching to it being
waived. This document can be regarded in my view as a BBC document
and/or briefing which to a degree summarises the legal advice that was
received (albeit, understandably, it does not address the full process by when
the BBC came to form its legal position). Whilst legal professional privilege
does still apply to this document, it is of a lower order than attaches to the
Advice in respect of which, as I have explained, it is vital that organisations
can seek, receive and consider legal advice candidly and in confidence.

I also believe that there is some public interest in disclosing the Draft
Submission. This is because it may aid public understanding of the legal
basis of the BBC’s submission to Ofcom on HD Content Management
because the Draft Submission provides legal analysis of some of the issues
raised by the BBC in its submission. The disclosure of this document does
not risk in my view revealing the train of thought of the legal advice that was
sought and received and, therefore, does not undermine the confidentiality of
that important and sensitive process.

Decision

I endorse the BBC’s application of the Section 42(1) (legal professional
privilege) exemption so as to withhold the legal professional advice sought
and provided to the BBC on the two issues that the requestor has highlighted.

However, I have concluded that the same does not apply to the final version
of the Draft Submission document that was prepared with a view to it being
provided to Ofcom. Whilst earlier drafts of that document should not be
disclosed because they may reveal the train of the legal advice that was
sought and given, the final draft can be seen as setting out the BBC’s settled
position for external submission. My conclusion, therefore, is that the final
draft of the Draft Submission only can be disclosed, redacted to remove any
personal or commercially sensitive data in accordance with the Freedom of
Information Act and redacted so as to remove information that is not relevant
to the request. "

More Panasonic DMR EX75 DVD tinkering

2011-11-17T10:26:00.002Z

My Panasonic DMR EX75 DVD recorder with the dodgy DVD drive was back on the blink this week. It started refusing to pick up the Freeview signal again. It's been a year since I replaced the capacitor that's prone to overheating on these machines and, sure enough, on lifting the lid and inspecting the over-stressed replacement capactor, that's the problem again.

You need to remember if you're going to tackle this problem that when you take the metal cover off there is still some dismantling to do. This is the picture under the metal cover:

At this point you need to unplug the connector strips from both sides of the green PCB and remove the screws from the corners of that PCB and carefully unplug it. There's a smaller green pcb towwards the front of the machine above the one you're removing and you'll need to loosen the two retaining screws on this as well before lifting out the bigger board. You can then get at the dodgy capacitor.

Clip the old capacitor legs off as high as you can in order to leave plenty of purchase to crimp your new capacitor legs on. This makes the subsequent soldering much easier. If you cut the legs too close to the surface of the board soldering is extremely fiddly and it's very difficult to get a clean connection.

Now carefully replace the pcb. I wasn't careful enough and snapped the newly replaced capacitor off the bottom board. Back to square one. Pcb off, re-solder the capacitor and carefully replace the pcb. Plug the connector strips back in. Put the metal cover back on and you're done!

Except that in my case I wasn't.

On connecting the machine back to the TV and switching on, the DVD drawer comes out, the display starts flashing and eventually tells me I've got a U61 error.

This is the same DVD drive that the machine's DRM is preventing me from using. After a lot of communications with them last year, Panasonic eventually agreed to replace the faulty DVD drive free of charge via J.F. Associates. Shortly thereafter the stressed capacitor failed and I replaced it. At this point the Pansonic's DRM decided it didn't approve of my DVDs and wouldn't play any of them!

Ok I haven't been able to use the DVD drive anyway so I'll live with the U61 DVD drive error. No can do says the machine. Because as long as there is a U61 error it is going to keep whirring and flashing, sticking the DVD drawer in and out, switching the stations on the TV, sticking messages on the TV screen and generally making it impossible to watch the TV or use the hard drive on the Panasonic. Honestly it's like a scene out of a Morecombe and Wise sketch.

It's resort to the manual and online forums time. On consulting the troubleshooting section in the manual it tells me this is not a fault (the forums beg to differ) and that I should just let the machine go through the motions of resetting itself; and then turn it on when it powers down. I let the machine whirr and flash and guess what - the manual is wrong and the forums are right. The problem persists and no amount of automated resetting is getting rid of the fault.

I tried a variety of fixes none of which worked. Then I decided to try unplugging the connector strips connecting the DVD drive to the circuit board and connecting the machine to mains electricity with the DVD drive disconnected. The theory was that whatever software loop was causing the automatic reset to fail might be bypassed if I disconnected the drive, thus enabling a fix. There are four of these connectors:

It's probably best isolate them with insulating tape to avoid shorting, before replacing the machine cover and plugging into the mains. I gave it about 15 to 20 minutes to reset (I hoped though not with a great deal of optimism) before disconnecting it from the mains again.

The final stage was to plug the four DVD drive connector strips back into the green pcb, put the lid back on and try connecting it up to the TV and mains again. This time it worked. The Panasonic can pick up the Freeview signal and record to and playback from the hard drive again.

Now dare I believe that, as a side effect of this tinkering, some sense might have been knocked into the machine's DRM, to the extent it might play my DVDs again? I know if I try it the system will have a heart attack and just give up but I can't help myself.

Open the DVD drawer.

Put in a DVD (Red fwiw).

Close the DVD drawer.

Hold my breath.

Whatdaya know...

It plays!

Why didn't I think of doing a disconnect reset this time last year! [Probably because at that point in the saga I had given up (unfairly as it turned out) on Panasonic ever helping and bought a cheap DVD player to play my discs.]

In any case the DMR EX75 is back in operation until the next time... I'm hoping at the very least that it survives the stress of the holiday season.

Note: pictures, as before, are from the AVForums thread that pointed me at the suspect capacitor this time last year.

The anti-social nature of social networks

2011-11-09T17:40:00.000Z

Whilst working on other things I came across two excellent essays on social networking today, one from maciej on Pinboard and the other from Charlie Stross. The former articulately describes the highly anti-social nature of the architecture of social network services. The latter critically assesses a social network analytics firm.

There are echoes of Alessandro Acquisti's SCL 6th Annual Policy Forum keynote address in both. Acquisti is interested in the behavioural economics of privacy.

Maintaining privacy in a social networking context involves engaging in the complex calculus of balancing an immediate cost (eg deciding not to participate) against a future benefit (preservation of privacy) and we're not particularly good, as social creatures, of tipping the balance in favour of the long term benefit. Hence the traditional Schmidt/Zukerberg 'solutions' to privacy -

[let the market decide]/[no one's forcing you to participate]/[transparency]/[user control] = privacy expedited

don't work. Counterintuitively, the experiments that Acquisiti has done demonstrate that the user, who believes that they have more control over their personal data, trusts the entity offering that superficial control and ironically discloses more personal data. Whereas natural suspicion of economic agents (companies) not offering that apparent control leads to more limited disclosure.

One of the many other problems with mass personal data pollution is that the negative events/perceptions show a greater longevity than the positive. Or as Acquisti says, when it comes to privacy, "the bad is not only stronger than the good it is also discounted differently."

If there is a record on a social network or elsewhere in the personal data morass on the internet of someone getting a major award, engaging in a heroic act or just doing something which shows them to be a decent human being, the social kudos associated with that postive event has a limited life. If it was 5 years ago, for example, we ask what has he done in the meantime? But a negative event is much longer lasting - a bad deed five years ago will still be held against you. That's human nature. The net takes away the ability to forget and the human pscyche makes it difficult to forgive, particularly in an era of a 24 hour news cycle with a voracious appetite for bad news.

(Just an aside, it's been impossible in the spotlight of that news cycle, for any kind of rational public debate to emerge on the border control story in the past few days because of the competition in shrill tough talking hysteria; and the opportunity to explain the power of intelligence led surveillance compared to irrational and unworkable blanket/mass surveillance is lost in the fear of potential media accusations of being soft on immigration/terrorism/crime/[pick your favorite bogeythreat])

So,

the architecture of social networks,
our lack of capacity to weigh up or fully grasp the myriad of complex down stream uses of our personal data (we just cannot predict as consumers/citizens how our data will be used),
our psychological tendency towards immediate gratification bias (give up data now, hang the consequences later),
the rapid devaluing of past good deeds compared to the long-lasting impact of the bad
and the power of technology to mine "anonymous" data and link it to individuals (eg through improving face recognition technologies)
before we even think about the relative economic/information power relationship disparity

mean that the proposed solutions of

transparency - telling the user this is your data and this is how we use it
and superficial user control of data (here are some privacy setting buttons)

are not an adequate response to the complex problem of ensuring respect for private and family life in an information age.

Hargreaves’ exceptions: format-shifting, parody, research and archiving Prt II

2011-10-21T17:47:00.003+01:00

Returning to the the Pictfor/Consumer Focus Hargreaves panel event, at the House of Commons on Tuesday evening this week, the fourth speaker on the night was James Sedry of Greenpeace, who admitted he had very little knowledge of intellectual property law and wasn't even aware of the Hargreaves review until recently but came to tell the story of how Greenpeace ran into problems in the past few months with IP. Parody is critical for campaigning. He didn't know there was a problem with it until Greenpeace produced a parody of a Volkswagen 60 second TV ad - the most shared ad online ever he said - of the little boy in a Darth Vadar costume trying to make things move with the force of his mind. Greenpeace produced a parody of the ad criticising Volkswagen's opposition to controls on carbon dioxide emissions:

The parody went viral. Four days into the release it had 2 million views and been shared 200k times on Facebook. Then it was removed by YouTube following a complaint from George Lucas. Greenpeace were shocked - they'd put a lot of money into it. But they do have well paid lawyers who took it up with Google on fair use grounds and the ad was re-instated on YouTube. That put the ball back in George Lucas' court - he can now take the matter up directly with Greenpeace if he wishes. After two months Greenpeace has not yet heard from his lawyers.

The video was offline for two weeks during a key part of the Greenpeace campaign and Mr Sedry reckons it damaged the campaign. He is concerned that smaller grassroots organisations will not take the risk of running this kind of parody.

There was a slightly bizarre set of exchanges then when the chairman, Mr Dowd MP, put Mr Sedry - a copyright novice - on the spot by asking him how he would shape copyright parody exceptions. The Greenpeace man talked about maybe allowing non commerical parody and the whole thing got side tracked, until a member of the House of Lords (who was also a lawyer) in attendance intervened to give Mr Sedry a break, since he'd admitted he was not a copyright expert, and essentially said there would be no justification for banning commercial parodies; that we need a parody exception in the UK and unless there was a question of passing off and trademark infringement in the commercial context, where more than adequate remedies were available to commercial rivals, then there was no justification for slicing parody exceptions into an irrational commercial v non-comercial dichotomy.

There was a lively subsequent discussion during which the most significant contributions came from a Google representative, Professor Fiona MacMillan of the University of London, Barbara Stratton of the Libraries and Archives Copyright Alliance, a representative from Intellect and Saskia Walzel of Consumer Focus.

The Google rep suggested to Martin Brennan, "If you knew what you were asking people to do was illegal and you'd talked to lawyers you would not have got any investment." He went on to say that a Martin Brennan or Greenpeace would not find themselves on the wrong side of the law if they were based in New York, implying the US copyright regime was preferable to that of the UK. Big claim that... cough... DMCA... cough. Martin Brennan responded by saying the VCR was illegal when it was launched but he wasn't necessarily concerned about designers having to push boundaries - he was concerned they find themselves outside irrational boundaries that they never would have expected to breach or simply did not know existed. He also mentioned being aggravated by the BBC who point blank refused to mention the JB7 in a series of programmes that was heavily praising (rip, mix and burn) Apple iPods.

The Intellect rep asked Martin Kretschmer why couldn't format shifting be permitted universally. Professor Kretschmer reasonably pointed out that the analysis of harm was a complex business and we need a carefully constructed IP landscape to encourage creators to create, investors to invest and consumers to buy. Unfortunately we seriously lack the empirical evidence base to provide a sound analysis of harm to inform policy. Though Prof K. has made a significant contribution to that with his report for the IPO this week.

Saskia Walzel of Consumer Focus then raised the issue of economic harm in relation to the JB7. In the case of the JB7 and the Greenpeace parody ad there was no economic harm. The JB7 was enabling people to enjoy music they had already bought. Where is the economic harm. Additionally where is the economic harm to rightsholders from achiving? Why should the BFI be exposed to the kinds of risks black letter copyright law lays down when all they are trying to do is preserve and protect our cultural heritage.

Barbara Stratton of the the Libraries and Archives Copyright Alliance made the point that libraries and archives were essential for creativity. Dark archives are of no use if no one can access them. She passionately believes we need to change the law or we will get to a point where even the limited exceptions of the 1988 Copyright Designs and Patents Act will only apply to the analogue world and our digital heritage will be locked away behind the paywalls of aggressive content monopolies.

Professor MacMillan then very eloquently - and I'm really sorry I didn't write her words down at the time because I'm pretty sure I'd be repeating them relentlessly - pointed out the key public interest function of intellectual property law and how we seem prone to forget or ignore it.

Depressingly Jim Dowd MP declared, just before he had to disappear for a vote in the House, that if the government don't get round to implementing Hargreaves in the next couple of years it will not get done in this parliament, if ever. In addition to the damage it would do the economy, that would be an insult to the work of the many people who fed into the review and to the memory of my friend, Mark Rogers, who considered it sufficiently important, in the final months of his life when he knew he was terminally ill, to devote time to producing evidence for the review (not to mention other earlier work he fed into it).

Martin Kretschmer neatly concluded proceedings by explaining that Hargreaves wants us to be careful not to over regulate but to understand that copyright policy - the subject of the evenings discussions - should focus on where it can make a difference to the creators, the investors (or as Mark Rogers would gently remind us that economists call them, the economic agents) and the consumers.

Well done to Consumer Focus & pictfor for setting up the evening and keeping the Hargreaves reforms in the spotlight and thanks for inviting me along.

Hargreaves’ exceptions: format-shifting, parody, research and archiving

2011-10-20T18:16:00.001+01:00

At the invitation of Consumer Focus I attended the Pictfor/Consumer Focus Hargreaves’ exceptions: format-shifting, parody, research and archiving panel event, in Committee Room 20 at the House of Commons on Tuesday evening this week. My first ever visit to the innards of Westminster.

The event was chaired by Labour MP, Jim Dowd.

The first speaker on the night was Martin Brennan of JB7 and Advertising Standards Authority spat fame. He opened by explaining that in the midst of his nightmare dispute with the ASA, over allegedly inciting copyright infringement, he felt like the Michael Douglas character in one of his favorite films, Falling Down, when he turns to the cop at the end and says "I'm the bad guy? How did that happen?"

The Brennan JB7 is basically a big iPod which you can use to copy and play all your music without the aid/intervention of a computer. He put 6 years of work and 3 re-mortgages into developing the machine, went from £0 to £7 Milllion (30,000 units) in sales.

The ASA decided, in response to a single anonymous complaint, after 10 million adverts, that Martin Brennan should include a prominent warning on all his ads declaring that copying CDs is not allowed under UK law. Yet the Apple iPods in use in the UK have millions of copied CDs and songs unlawfully copied from the internet and "rip, mix and burn" Apple have no obligation to include such a warning in their ads. As Mr Brennan said:

"I'm not a pirate."

"My customers are not pirates"

The JB7 is simply a "better way to enjoy music you've already paid for."

He rounded off with some general comments about the Hargreaves review recommendations. Mr Brennan considers himself to be a designer. He was thrilled to get his first patent at the age of 21 and reckons it was a great one which involved a genuine inventive step. Since then as an employee in various contexts he's been forced to put his name to junk patents by employers. The patent system is clogged full of such patents unworthy of protection and as an inventor he believes one of the ways of tackling the issue is, as Hargreaves suggests, increase patent fees. On copyright he thinks the term of copyright is ridiculously out of control and he would have no objection to anyone freely taking and making use of software he wrote 20 years ago. He positively supports Hargreaves notion of a digital copyright exchange.

Finally he said he was forced to include the copyright warnings in his adverts and he believes they have damaged his sales. He is similarly quoted in the Hargreaves review (chapter 5):

“My company is possibly one of the best examples of the sort of SME that can help lead this countryout of the recession – 10,000% growth in 30 months during the recession – but out of date legislationand red tape may sabotage my growth. It is no exaggeration to say that this matter has caused me more sleepless nights and wasted days than any other in my company’s history... Aside from legal headaches I face the cost of reassuring customers that record companies will not sue them. It’s daft because US companies Apple and Microsoft have been selling format shifting products in the UK for a decade."

Milliions routinely disregard, knowingly or unknowingly, the letter of UK copyright law but he's forced to warn people about it even though the government has accepted there should be a format shifting exception.

Next up was Professor Martin Kretschmer, of Bournemouth University's Centre for Intellectual Property Policy and Management. He has produced a very impressive and incredibily rare beast in intellectual property policy circles, an empirical report on the legal basis, rationale and economic effects of copyright levies, (in connection with his ESRC Fellowship at the UK Intellectual Property Office). The report was formally launched the following day at the Work Foundation.

He talked about there being significant copyright infringement through the use of mobile devices. He looked at a range of countries approaches and considered what the UK might do. Article 5 of the 2001 information society directive lists 20 possible exceptions and limitations to the scope of copyright. The UK has, thus far, chosen not to use all of them. (Though Hargreaves has recommended that we do). And since 2001 levies on electronic devices have tripled - €500 million per annum is collected in levies in the EU for private copying.

Of the 20 exceptions 3 require compensation - private copying, reprography and reproduction of broadcasts by social institutions. The Hargreaves review (chapter 5) recommends a limited private copying exception without compensation, partly on the basis of earlier versions of Prof Kretschmer's work in this area and the empirical evidence he provided to the review.

"5.30 The Review favours a limited private copying exception which corresponds to what consumers are already doing. As rights holders are well aware of consumers’ behaviour in this respect, our view is that the benefit of being able to do this is already factored into the price that rights holders are charging. A limited private copying exception which corresponds to the expectations of buyers and sellers of copyright content, and is therefore already priced into the purchase, will by definition not entail a loss for right holders.

5.31 The Government should introduce an exception to allow individuals to make copies for their own and immediate family’s use on different media. Rights holders will be free to pursue whatever compensation the market will provide by taking account of consumers’ freedom to act in this way and by setting prices accordingly."

Prof Kretschmer explained that the EU "fair compensation" provisions of the 2001 directive were interpreted by the European Court of Justice in the 2010 Padawan case as meaning the compensation must be the same everywhere and calculated on the basis of harm. As the court stated,

"“fair compensation must necessarily be calculated on the basis of the criterion of the harm caused to authors of protected works by the introduction of the private copying exception”

This is different to a concept developed by the highest German federal court in 1964 of "equitable remuneration". At the time it was decided that anyone who wanted to buy a tape recorder had to provide their personal details. This was challenged in the courts and the federal court eventually held it to be an unconstitutional invasion of privacy. Instead they came up with the concept of a statutory licence - equitable remuneration or levies on tape machines and associated ancilliaries to compensate copyright holders.

Professor Kretschmer concluded that we should be highly critical of the EU's fuzzy concept of fair compensation based on harm. He does believe that ill defined concept, however, gives the UK scope to produce a narrowly conceived private copying exception for consumers - eg to effectively enable copying of CD collections onto Brennan JB7 players. He reckons 96% or more of music on the average iPod is copied, most is not listened to; and a sufficiently clear, narrowly focussed private copying exception would do nothing to approve mass unlawful copying of songs from the internet, whilst enabling people to lawfully format shift legitimately purchased music. Such format shifting causes no harm to rightsholders - and as Martin Brennan argued it may even enhance the value of music CDs thereby improving sales - so there would be no requirement for compensatory levies.

Third on the roster for the evening was Richard Brousson, legal counsel at the British Film Institute (BFI). He spoke passionately about the difficulties the BFI faces because the existing archiving exception in the Copyright, Designs and Patents Act excludes film. The BFI is tasked, amongst other things, with preserving and restoring the most significant film collection in the world for today and future generations - a hugely important part of the UK's cultural heritage. He also gave an insight into the difficulties researchers face in accessing our cultural heritage because film is excluded from the existing non-commercial research exception.

The BFI is a registered charity partly funded by government and in recent times has additionally taken on most of the functions of the British Film Council which was abolished in the coalition government's bonfire of the quangos. You can get chapter and verse on their aims and objectives in the BFI royal charter. They are involved in the preservation of over 275,000 films and 210,000 TV programmes and the exceptions in the 1988 act don't cover the copying of moving images which instantly gives the BFI a problem. Mr Broussan also mentioned that a significant proportion of the films involved were orphan works.

He argued that copyright law is overdue reform if we want to avoid the systematic, legally approved destruction of our cultural heritage. The exceptions in the 1988 act and even specifically the section 29 "research and private study" exception does not apply to moving images. The law is significantly impeding the ability of researchers to access, understand and build on our cultural heritage. One of the ways the BFI has been dealing with this is through their Screen Online partnership with educational institutions like Cambridge, Derby and Newcastle universities - a terminal based physical walled garden which they also hope to roll out to other universities in the none too distant future.

The complex rights issues do mean they, like the Open University, have to employ a dedicated and expert group of rights and contracts officers and they regularly run into problems with the usual Hollywood crew refusing rights for educational use or archiving, for example. So the entrenched position of the large rightholders and the perilous state of copyright law and the risks it exposes the BFI to, if for example they attempt to preserve or transfer a copy of an old film in a physically deteriorating medium into a new format, mean it is extremely difficult for them to fulfil their royal charter objectives.

The fourth speaker was James Sedley of Greenpeace. I'll report on his contribution and some of the subsequent Q&A in a later post.

Independent review of the UK's extradition arrangements published

2011-10-18T13:35:00.000+01:00

The Independent review of the United Kingdom's extradition arrangements has just been published by the Home Office. It looks like bad news for Gary McKinnon who is facing extradition to the US and is potentially embarrassing for the coalition government which commissioned the review at least partly because of the McKinnon case. Deputy Prime Minister Nick Clegg in particular, prior to the last election, was a vocal supporter of McKinnon and stern critic of what he called the "lopsided" extradition agreement with the US.

Specifically on the imbalance in extradition provisions between the UK and US, however, the report concludes:

"The United States/United Kingdom Treaty

1.20 We have concluded that the United States/United Kingdom Treaty does not operate in
an unbalanced manner. The United States and the United Kingdom have similar but
different legal systems. In the United States the Fourth Amendment to the
Constitution ensures that arrest may only lawfully take place if the probable cause test
is satisfied: in the United Kingdom the test is reasonable suspicion. In each case it is
necessary to demonstrate to a judge an objective basis for the arrest.

1.21 In our opinion, there is no significant difference between the probable cause test and
the reasonable suspicion test.

1.22 In the case of extradition requests submitted by the United States to the United
Kingdom, the information within the request will satisfy both the probable cause and
the reasonable suspicion tests.

1.23 In the case of extradition requests submitted by the United Kingdom to the United
States the request will contain information to satisfy the probable cause test.

1.24 There is no practical difference between the information submitted to and from the
United States. "