Secrecy by default - the issue with the NHS risk register

The Health & Social Care Bill has finally made it through Parliament. Despite vociferous campaigns from both the general public and medical professionals, the huge top-down reorganisation of the NHS has already begun.

Regardless of what you think of the need to restructure the NHS in general or these reforms in particular, there is one big issue with the way the decision was made in the first place. MPs were asked to vote on the Health and Social Care Bill without having access to crucial information about the potential impact of the reforms. Specifically, Andrew Lansley and the Department of Health have for months been fighting a losing battle to withhold from publication the transition risk register. This document, drawn up by civil servants, details the risks arising from implementing the measures proposed in the Bill. The Information Commissioner ruled last November that the register should be published, and an Information Tribunal rejected an appeal from the Department of Health in early March, again ruling in favour of the publication of the risk register. Yet here we are weeks later, with the Bill on the cusp of receiving Royal Assent, and the risk register has yet to be seen.

As a project manager, I am stunned. If I asked my project board to make a decision on something and did not provide them with a full and detailed analysis of options and risks, I would get sent out of the room and told to do my homework. If I provided an excuse like the government's - that if I gave the board access to my risk register my project team might be less honest with me in future - I would, frankly, deserve to be stripped of my professional qualifications and sacked. Yet this is precisely what the coalition government has done by asking Parliament to vote on the Health and Social Care Bill without publishing the risk register. Publication of the register, so the government and former Cabinet Secretary Lord Wilson, would jeopardise "the ability of officials to give their best policy advice to Ministers".

This is a symptom of a lack of transparency and accountability that is deeply ingrained in British political culture. The default state of information is closed, guarded, secret. Even published government information is under Crown copyright, meaning the government can restrict publication and distribution through legal threats and copyright litigation. Bear in mind that this is data and information the creation of which we as tax payers fund directly. That we should then, by default, be prevented from accessing it unless the government is feeling particularly benevolent is a disgrace. As Heather Brooke points out in her book The Revolution Will Be Digitised, the approach to publishing government data is a key point of difference between the UK and the US, where government information is by default in the public domain. This makes it both easier to hold government to account and to use such data for innovation.

Government transparency, rather than government secrecy, should be the default. Politicians and civil servants both should be held accountable for their actions. That can only happen if documents such as the NHS risk register - documents absolutely vital for making decisions on something like the Health and Social Care Bill - are made available both to MPs and to the general public during the legislative process.

Image: NHS Petition Hand-in by 38 Degress: CC-BY-2.0 licence

Parody, copyright and schools: an 'exceptional' case

Marshall Mateer believes widening the copyright exception to include parody will send a positive message to future generations of creatives.

Parody is a wonderful means of creative expression and learning and has been adopted in many areas of the school curriculum - in lessons concerning poetry, art, music, graphic design, technology, performance arts and media studies. As a pedagogical approach it is able to engage children of all ages and many types of ability. And of course parody, despite whatever impediments the current UK copyright laws put in its way, is an established part of our culture - from classical times through Dryden's 'mock heroic' and 'parodie' all the way to Laurel and Hardy's 'wild west'.

From T.S. Eliot with his "trousers rolled" to the Steamradio Goon Show, and from Tom Stoppard's 'Shakespeare in Love' to the Gogglebox Pythons. Today, Hollywood regularly parodies itself with such films as 'Not Another Teen Movie' and cyberspace is awash with millions of parody music tracks, videos and blogs. Parody has become a lingua franca in the world of advertising. Meanwhile in downtown 'Springfield' ('The Simpsons') just about everyone and everything in sight and hearing is parodied - 'Doh!'. Parody is alive and well and living in a screen near you.

While based on 'imitating' an original parody ensures not just the achievement of a 'copy', but a greater understanding of the original through careful study or deconstruction, added to the ability to transform selected aspects into new situations and contexts - creative expression emerging out of critical analysis. Parody overlaps with a number of other culturally embedded approaches - 'copying', 'in the style of...', 'homage', 'send-up', 'caricature', 'lampoon', 'satire', 'pastiche', 'spoof' and 'burlesque' but always eschews the uncool of 'plagiarism'.

In terms of the categories in the UK Copyright Act, parody can be applied to all of them: Literary texts (including code for say, games or characters in virtual worlds), artistic texts (inc photography and digital image manipulation), audio, music and film. While parody itself is media neutral the UK Copyright Act restricts copying for parody to 'old media' but excludes working with film and music - UK Copyright is sort of, well, media biased.

Copyright gives creators/owners certain rights over the 'expression' of an idea; rights that currently trump 'parody' in most media and casts a shadow over a more fundamental right; that of 'freedom of expression'.

And in schools what is learnt from activities that involve parody? Technical skills like copying, editing and publishing, the concepts of structure, narrative, characterisation and timing; understanding the rich language of the media; developing analytical and critical skills; presentation to an audience and receiving their feedback; negotiating the 'hyper' or 'sub' reality of virtual media with the experience of 'real life'. In short, key skills and understanding required by:

1) Many industries in the UK's creative sector - media, advertising, promotion, news and broadcasting, games, etc...

2) All citizens in today's digitally mediated world.

The act of 'copying' a painting using pencil or pigment, or of copying part of a poem by writing it down is permitted under the UK's Copyright Act but not when the copying becomes 'reprographic' (for 21st century speak, say "digital copy") - so Banksy's spray-can mischief is 'copyright OK', but perhaps not if he worked with video or sound.

The 'Hargreaves Review of Intellectual Property' (2011) - following on from The 'Gowers Review' (2006) - highlighted the use of parody as a vibrant and of-the-age way of learning brought about by digital technolgies and the open access of internet publishing sites such as 'You Tube'.

"Video parody is today becoming part and parcel of the interactions of private citizens, often via social networking sites, and encourages literacy in multimedia expression in ways that are increasingly essential to the skills base of the economy. Comedy is big business." (Hargreaves. Para 5.35)

The report cites the example of 'Newport - Ymerodraeth State of Mind' which represented a several-edged critical blade cutting into the unreal world of pop and the equally unreal world of Welsh stereotypes - leeks, rarebit, etc. The move from New York to Newport provided a nearer to home dimension in the presentation of young lives and their 'state of mind' in South Wales.

As the video went viral EMI waved the copyright infringement red card because it was based on the US single, 'Empire State of Mind' by Alicia Keys and Jay Z, and the video was removed. Only for the red card to be waived later and the video reinstated as copies of the parody and new versions proliferated and Comic Relief requested permission to do a celebrity version for charity. This series of events demonstrates that parody works and we all benefit - while copyright continues to confuse and, as a consequence, we all suffer.

Parody is permitted in other countries: for example, the USA allows parody as 'fair use' and Australia has recently included parody as an 'exception'. However, in the UK there is currently no exception and permission has to be sought of the owners and/or creators of the original material before a parody involving copyright material can be published. Well, you can but ask, and the owners might say, 'yes', or then again they might say, 'no'. They might require payment, or you might not actually ever find out who to ask in the first place; and by the time a reply is forthcoming the creative and contextual moment could well be lost.

Where copying for parody is permitted in other countries it isn't feckless; it exists within a framework of rules. The parodist must acknowledge the creator but not defame them, and these rules already exist within an EU directive as yet unsigned by the UK. This mode of working is familiar to all of us, for instance, cartoonist's may say "with apologies to Hogarth or Cruickshank or Picasso (who wasn't adverse to a bit of parody himself) or whoever". This is a historically established method of acknowledgement, attribution and respect for the original creator. If we built in a 'copyright exception' for the purpose of copying for parody, these moral rights would help to build a culture of respect within which everyone can work. It is copying for parody or pastiche - not just copying. For example, in the US the parody must be 'transformative' of the work, not just a copy of it - the rules could present a continual challenge to lazy plagiarism.

The current consultation managed by the UK IPO opens the way for the situation to be changed and copying for legitimate parody to become an 'exception' in the UK. There is a potential for a win-win situation for education and for skilling the future workforce by legitimising a proven pedagogical approach and an engaging curriculum activity embedded with good practices that would seamlessly transfer to the world of work and active citizenship.

That is if we let it happen; if we make legitimate copying for the purposes of parody and pastiche become a copyright exception. Legitimising ( = legalising) the practice would help build an ethical foundation on which all copyright might better work from and which might more easily engage the wider public and young people in respecting other people's work and in using the regulation of Intellectual Property and copyright better for their own work.

As has been noted many times now, Newport is not only a town in Wales and the setting of an excellent parody music video, but, it is also the home of the UK IP Office. If the opportunity is not taken now, as the rest of the world moves on, then, in respect of the principles and practice of parody and pastiche in the 21st century, 'copyright UK' risks becoming, dare we say, a parody of itself.

But a better result for all would be for copying to enable 'parody, caricature and pastiche' to become a 'fair dealing exception' in the UK working within a framework of requirements to respect and acknowledge the original creator, and challenge the parodist to a creative outcome.

Have your say: UK IP Office Consultation BTW it closes 21st march - so hurry!

Marshall Mateer's article also appears on his website Shapes of Time, produced to support learning about and fascination of a wide range of subjects.

Image: elf parody by Marshall Mateer: CC-BY-NC-2.0-UK licence

Diving in to the absurd

Mobile blocking technologies overstep their 'boundaries'

Browsing the Internet gives you access to all kinds of knowledge, information and services. But it's hard to find access to the Internet that is not in some sense restricted, with certain content blocked or filtered. For example, access to the internet via mobile phones. UK Mobile operators, namely Vodafone, Orange, T-Mobile, 02, 3 and Virgin adhere to a joint Code of Practice for regulating new forms of content on mobile phones. This filtering technology was inbuilt to prevent individuals under the age of 18 from accessing adult-related and unmoderated content on websites.

These operators have bestowed on the Independent Mobile Classification Body (IMCB) the task of working out what kind of content that should include. This led to content such as gambling, chatrooms, dating, user generated content and material of a sexual nature being included in what is blocked.

Mobile operators automatically ‘filter’ the Internet on pay-as-you-go phones as they are unaware whether a minor is using the device and, as such, prohibit access to websites that supposedly ‘fall’ within these categories.

The problem is, lots of websites are unnecessarily censored, highlighting the inaccurate, inconvenient nature of the blocking. The fact that so many websites are incorrectly blocked under such a policy demonstrates the need for change.

We've been asking people to submit reports to the website to help us understand the 'over-blocking' problem. We'll be publishing the results soon.

We've written before that we discovered that the political advocacy site, La Quadrature du Net (LQDN) was for some time blocked on Orange (it was unblocked after the publicity generated by our blog). Lots of others have been blocked inappropriately.

But it is not just politically sensitive sites that are being blocked. Restaurants, personal blogs and art exhibition websites are also being filtered; showing that mobile Internet blocking can, through mistakes and misclassifications, catch the wrong sites.

As we've been receiving the reports, we've been thinking about some of the issues that this kind of filtering raises about free speech and access to information. We've split these concerns into two: problems for the site’s themselves, and problems for the user.

Problems for the blocked websites:

1. Preventing access

The most obvious problem that mobile blocking technology poses to websites is the negative consequences for its readership or market. These restrictions could have significant effects for a site, be it a business or personal blog. If user traffic drops, particularly for businesses, then they may see lower advertising returns or sales. Website owners should be worried if mobile blocking is restricting potential customers' access to their sites.

2. Lack of transparency

We spoke to a customer service representative at one of the large mobile service providers, their response was, 'I have no idea to be honest’, when asked how content is classified. Followed simply by ‘if it is like that, it is like that’.

The problem is, the classification framework is vague, meaning it is not clear exactly who will fall foul of the filtering. Mobile operators say that any website containing adult related material and unmoderated content will be prohibited. However, there is no properly set criteria as to what actually counts as ‘adult related’ material. Is the mention of ‘gambling’ in a blog, of the mere use of the word ‘chatroom’ enough for the default filtering system to be engaged? UK mobile operators need to define the limits with which it imposes these restrictions. Many websites are incorrectly caught in the filter.

In fact, even customer service representatives seemed stumped when questioned on it. Needless to say, such measures where regulators and representatives are unknowledgeable as to the origins and framework in which it operates shows that it needs to be scrapped.

Furthermore, website owners are not told if their site is blocked, and not every mobile operators have provided means to check. O2's URL checker has hardly been promoted or publicised.

3. Implications for civil Liberties

Freedom of communication and expression must be protected in the digital arena. Whilst the Internet enables these fundamental rights to be fulfilled, blocking mechanisms that allow for the policing of the internet are a disproportionate infringement of these basic freedoms, for website producers and users, especially when implemented so poorly that it is not simple to opt out.

4. No universal measure to change classification systems

Once a website is classified as blockable by a filtering system it is hard for the website owner to extricate themselves from it. Whilst users can opt-out, the website itself cannot. There should be an easier 'unblock' mechanism on all network providers, so they are not held captive inappropriately.

In addition, there is no system in place to monitor and record incorrectly censored websites. Mobile operators should monitor the filtering against a random sample of websites, for example, and conduct user research to establish how well their systems are performing.

Problems for the user:

1. Inconvenience

Incorrect website blocking and barring causes great inconvenience. Whilst it is possible to remove the default filtering system on a specific handset the end user too often has to go through a lengthy procedure, with no simple explanation of what the filter is for. Often the customer service staff do not understand the systems and we have heard of users' difficulty in getting operators to turn off the filters.

2. 'Adult content' or parental controls?

To opt-out of filtering a user has to go through an age verification process (AVP) and provide personal information, often the disclosure of a credit card, address or driving license details to prove that they are 18 or over. It also often involves a one-off cost, (only later reimbursed) and potentially restarting the handset and deleting the cache memory.

Many find the process of requesting the ability to view what their service provider deems as ‘adult material’ extremely uncomfortable. It would be better if the systems were called 'parental controls', to avoid this kind of stigma and to better reflect the breadth of content covered.

3. Innovation, Freedom and Expression

It can seem as if the blocking mechanisms are skewed and in favour of an overcautious and overly powerful measure to ‘protect’ children to the unnecessary detriment of the ordinary Internet user.

The Internet is meant to be a medium allowing individuals to distribute and share cultural and creative material. This is to ensure freedom of communication to share ideas and knowledge whilst encouraging a platform for innovation. The Internet shouldn't be subject to these kind of clumsy infringements.

Most people would agree that there are legitimate reasons to manage young people's access to the Internet, and that child protection settings could be justified in this regard. However, sites are being blocked that contain no adult material, therefore no party is being protected only harmed, reducing the legitimacy of any mobile filtering systems.

To demonstrate the peculiar nature of website blocking, we thought it would be helpful to briefly discuss an incorrectly censored website which has been featured on our main ORG website - La Quadrature du Net. Not only is this example topical, but its also politically sensitive and ideal to show the ramifications of how these filtering systems effect the viability of websites.


La Quadrature du Net:

LQDN aims to influence both French and European legislature to aid the free circulation of knowledge by engaging in public policy debates that highlight the importance of freedom of expression, copyright, regulation of telecommunications and online privacy. Similar to Open Rights Group, LQDN is a non-profit organisation primarily funded by its supporters and substantially reliant upon volunteers to help raise the profile of the principles and rights the group aims to uphold.

LQDN is actively involved in numerous public policy debates to promote a better understanding of the ever changing legislative process amongst citizens. Through these campaigns, it hopes to encourage individuals to join in the fight to ensure that human rights and civil liberties continue to be upheld on a multimedia platform.

LQDN argues that it is impossible to police the free flow of information on the Internet in relation to free speech, innovation and copyright as such an endeavour infringes the founding principles of the Internet itself.

Ironically, LQDN has become a victim of the conflict that it is tirelessly campaigning against. This site was blocked on Orange for an indeterminate amount of time, until ORG raised the problem and Orange fixed the mistake.

Of course, LQDN contains no adult material of any kind. It is actually a tool for citizens to actively engage in the legislature and governmental decision making that effects them. It shouldn't be policed by any sort of child protection filtering system. Furthermore, in France, freedom of expression is formally protected in the countries constitution, which could pose a number of difficult legal questions as to why Orange had the site on a blocked list.

During our research we also found that Orange do not respond quickly to a need to amend their blocked list. A phone is either unblocked in its entirety or not at all - having a specific site made accessible is not really an option. This leaves few supporters of LQDN who are under 18 with few options. 

LQDN was later universally unblocked on all Orange pay-as-you-go mobile phones. But this followed publicity we generated. It is impractical and unrealistic to assume that ORG or the site operator should have to launch a small campaign in every instance of over-blocking. It should not have taken a national campaign to make Orange unblock this site. The solution is simple. Mobile networks need to develop more accurate content filters, and be more responsive to mistakes. Until this happens, we are afraid there will be many more instances of incorrect website blocks like LQDN.


Image: smartphone by BrookeElliot: CC BY-SA 2.0

Debunking the European Commission's '10 myths about ACTA'

Glyn Moody takes us through the EC's document '10 myths about ACTA' and shows us that it has some myths of its own

It's a sign of the European Commission's increasing desperation over ACTA that it has been forced to send out a document entitled "10 Myths About ACTA" that purports to debunk misinformation that is being put around. Unsurprisingly, the EC's document is itself full of misinformation. Here are just a few of the more outrageous examples.

1. ACTA will limit the access to the internet and will censor websites.

Read the text of the ACTA Agreement - there is no single paragraph in ACTA that substantiates this claim. ACTA is about tackling large scale illegal activity, often pursued by criminal organisations. It is not about how people use the internet in their everyday lives. Internet users can continue to share non-pirated material and information on the web. ACTA will not limit people's rights on the internet nor will it shut down websites, unlike the proposals discussed in the US (SOPA and PIPA).

There are some convenient half-truths here. Its supporters may claim that ACTA is about tackling large-scale illegal activity but nowhere in the document is there mentioned any minimum level for its operation. That is, potentially, it can apply to the actions of a single person, perhaps even sharing a single file, depending upon the circumstances. The problem is, ACTA's framing is so vague that it's not clear exactly who might be caught by its terms. Whatever the Commission may say now, it's how the text is interpreted later that matters.

After all, if the Commission had really wanted only to tackle "large-scale illegal activity", it would have added a minimum level to exclude the risk that ordinary Internet users would be affected. The refusal to add that minimum level to the treaty – something that would have been easy to do - can only mean that the Commission does indeed want the option of applying ACTA's rules to ordinary citizens, and that its claims to the contrary are simply whitewashing.

The next half-truth is: "Internet users can continue to share non-pirated material and information on the web". But what exactly is "non-pirated material"? Who decides? Because copyright has become such a complex set of laws that it is rarely clear – even to copyright lawyers – what exactly is or isn't "pirated": often the courts have to decide whether something is covered by "fair dealing/fair use", for example. So how can ordinary citizens possibly know in every case whether what they are sharing is "pirated"?

In particular, there is the situation that the term of copyright varies by country, and what may be in the public domain in one, is still in copyright in another. So what happens when someone in a country where some creation is in the public domain shares it with someone in a country where it isn't? The continuing injustice of the O'Dwyer case shows us that the US tries to applies its laws everywhere in the world: so does that mean its copyright laws apply in Europe?

Finally, while it is true that ACTA will not "shut down websites" directly, there is another clause that is even worse (Article 10):

Judicial authorities have the authority to order that materials and implements, the predominant use of which has been in the manufacture or creation of such infringing goods, be, without undue delay and without compensation of any sort, destroyed or disposed of.

Now, by definition, a Web site "creates" infringing copies when it sends or streams them to users; so lawyers could – and almost certainly will, knowing lawyers – argue that ACTA provides for the destruction and disposal of any computers whose "predominant use" is copyright infringement. So, no simple censorship, certainly, just the seizure and physical destruction of computers (assuming they are in one of the ACTA signatories), and probably the domain name too.

Not only that, but another section (Article 12) allows for "materials and implements" to be seized without informing the party affected, and even without any guarantee that people can defend themselves afterwards – so much for due process and justice.

3. ACTA is a secret agreement. Negotiations were not transparent and conducted "behind closed doors". The European Parliament was not fully informed, stakeholders were not consulted.

The text of ACTA is publicly available to all. The negotiations for ACTA were not different from negotiations on any other international agreement. It is a fact that such agreements are not negotiated in public, but with the Lisbon Agreement and the revised Framework Agreement there are clear rules on how the European Parliament (EP) should be informed of such trade negotiations. And these have been scrupulously followed. Trade Commissioner Karel De Gucht has participated in three plenary debates, replied to several dozens of written and oral questions, as well to two Resolutions and one Declaration of the EP, whilst Commission services have provided several dedicated briefings to Members of the European Parliament (MEPs) during the negotiations. Trade Commissioner Karel De Gucht has participated in three plenary debates, replied to several dozens of written and oral questions, as well to two Resolutions and one Declaration of the EP, whilst Commission services have provided several dedicated briefings to Members of the European Parliament (MEPs) during the negotiations. Likewise, the public was informed since the launch of the negotiations about the objectives and general thrust of the negotiations. The Commission released summary reports after every negotiation round and the negotiating text since April 2010. It organised press briefings and four stakeholder conferences on ACTA, one of them even only a few days before the first negotiating round.

This is extraordinarily duplicitous. The text of ACTA may be available to everyone *now*, but that is after the negotiations have been concluded – in other words, as a fait accompli. Even though the ACTA discussions began in 2006, the first formal draft that was officially released was only in 2010. The only reason people knew what was in ACTA was thanks to a document posted in Wikileaks in 2008: in other words, if the ACTA negotiators had got their way, ACTA would have been negotiated behind closed doors for four years before the public was allowed to see anything (and had there not been the Wikileaks leak, it's possible that even the draft would not have been released.)

The Commission claims "the public was informed since the launch of the negotiations about the objectives and general thrust of the negotiations": but what matters, of course, are the details, not the "general thrust". A few press briefings and stakeholder conferences are no substitute for actually allowing the public to give some – any – input to the ACTA process. But in the many years of negotiations, there was no possibility whatsoever to do that.

And yet even though the public was denied any opportunity to comment on a treaty that would have important implications for their lives, certain privileged groups were not just given access but consulted on their views, as Wikipedia explains:

Apart from the participating governments, an advisory committee of large US-based multinational corporations was consulted on the content of the draft treaty, including the Pharmaceutical Research and Manufacturers of America and the International Intellectual Property Alliance (which includes the Business Software Alliance, Motion Picture Association of America, and Recording Industry Association of America). A 2009 Freedom of Information request showed that the following companies also received copies of the draft under a nondisclosure agreement: Google, eBay, Intel, Dell, News Corporation, Sony Pictures, Time Warner, and Verizon.

Given the fact that major US corporations that stand to benefit directly from ACTA's disproportionate enforcement terms were allowed to shape its details from early on, while the 300 million European citizens who will be subject to those same terms had not a single formal opportunity even to express their views, the Commission's attempt to suggest that this was not a secret treaty, and that the public was consulted, is risible and insulting.

6. ACTA favours IP right-holders. ACTA eliminates safeguards and exceptions existing under international law.

Quite to the contrary, ACTA is drafted in very flexible terms and contains the necessary safeguards to allow the participating countries to strike an appropriate balance between all rights and interests involved, in line with their economic, political and social objectives, as well as with their legal traditions. All safeguards and exceptions under EU law or under the TRIPs Agreement remain fully preserved.

Notice how the "myth" has two components, but that the European Commission only answers one of them. The whole treaty is predicated on the assumption that more enforcement is good: there is no consideration of the collateral damage it might inflict, for example on members of the public. That, of course, is because the public was never allowed to present its views; inevitably, the resulting document is incredibly one sided and biased in favour of the copyright industries.

This can be most clearly seen in Article 9, which spells out the damages for infringement (my emphasis added):

1. In determining the amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

2. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer to pay the right holder the infringer’s profits that are attributable to the infringement. A Party may presume those profits to be the amount of damages referred to in paragraph 1.

3. At least with respect to infringement of copyright or related rights protecting works, phonograms, and performances, and in cases of trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following:

(a) pre-established damages

(b) presumptions for determining the amount of damages sufficient to compensate the right holder for the harm caused by the infringement; or

(c) at least for copyright, additional damages.

Consider, now, how this might apply to sharing a few mp3s online. According to ACTA, the copyright holders can demand damages equal to the "lost profits" from those mp3s. And if you want to know how the recording industry calculates those, ask Jammie Thomas-Rasset, who was fined $1,920,000 for sharing 24 songs in the US. When that was later reduced to $54,000, the recording industries demanded a retrial because they felt it was far too low.

ACTA essentially validates this kind of deranged calculus, and permits copyright companies to claim for completely imaginary losses "to compensate the right holder for the harm caused by the infringement", even though it is impossible to quantify that "harm" in any sensible way when you're dealing with digital file sharing. Indeed, arguably there is no harm, since file sharing can actually *boost* sales – just ask Paul Coelho; but ACTA's tunnel vision naturally cannot contemplate such a possibility.

Given these utterly disproportionate figures, it is extraordinary how the members of the European Commission can claim with any seriousness that ACTA does not "favour" rights-holders. Perhaps they imagine everyone earns the same as they do – 240,000 Euros a year - and can easily find a few million Euros down the back of the sofa if they need to....

8. ACTA leads to "harmonisation through the backdoor". A study ordered by the European Parliament's committee for International Trade (INTA) to academics says that ACTA will require changes to EU enforcement legislation and/or to national laws.

ACTA provisions are compatible with existing EU law. ACTA will not require any revision or adaptation of EU law and will not require any Member States to review the measures or instruments by which they implement relevant EU law. ACTA is also in line with international law, in particular with the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The INTA study does not show evidence of any concrete situation where ACTA would contradict, repeal or require the modification of a single provision existing in EU legislation. This has been confirmed in very clear terms by the two above mentioned Opinions of the Legal Service of the European Parliament.

If ACTA is compatible with existing EU law – and that remains unclear, despite the Commission's assertions to the contrary – that's only so because the whole treaty is so vaguely worded. It is full of options – clauses that signatories "may" implement in certain ways.

But this is the central trick of ACTA: it is not that the treaty itself imposes new laws on participants *now* - the studied vagueness makes that unnecessary. What ACTA does is to create a framework whose assumptions are that laws will be passed in the future to comply with the optional, more stringent parts. In other words, ACTA is not so much about today's legal landscape, but about tomorrow's. It will allow politicians to say: "well, we really have to implement these harsher enforcement laws because it's in ACTA, and all of our partners have done so, and it would look bad if we didn't follow suit."

In fact, European commissioners aren't even waiting for ACTA to be ratified before moving down this path: with the “Proposal for a Revision of the Directive of Intellectual Property Rights” they are already planing to bring in harsher copyright enforcement of precisely the kind that ACTA tries to establish as a benchmark.

In other words, it's the usual copyright ratchet, whereby a country's copyright maximalism in one area is used as an excuse to "harmonise" everyone else's. That's precisely what has happened with copyright term, for example, where the varying terms for different kinds of creation – text, music, sound recordings – have gradually been extended around the world in order to bring about "harmonisation" (isn't it strange that there's never harmonisation *downwards*, and that it's always in favour of the copyright industries and to the detriment of the public?) ACTA seeks to use the same trick to export the worst excesses of copyright enforcement first to all signatories, and later around the world through further treaties, like the Trans-Pacific Partnership.

 Follow me @glynmoody on Twitter or, and on Google+

Image: By tiseb (CC BY 2.0)

Five Reasons ACTA Must Be Stopped

With the ACTA protest in London coming up this Saturday, Stu Anderson brings opposition to ACTA into focus:

1. It is an Anti-democratic Instrument

Already covered in this Zine is how one of the major concerns over ACTA has been the shady and secretive way in which the instrument has been formulated behind closed doors.

ACTA was negotiated in secret, and indeed drafts of the text of the agreement only initially made it into the public domain after leaks from insiders to the process worried about the implications of the instrument. The US even blocked the release of draft versions of the agreement on the grounds of 'national security'. It was only after constant leaks that an official draft was finally released in April 2010, and even now many of the key preparatory documents and official opinions remain unreleased.

Concerns over the problems with the way the instrument have been negotiated have been so marked that the situation forced Kader Arif, the European Parliament's official rapporteur for ACTA, to resign in protest at the secrecy surrounding the agreement.

The negotiations have also bypassed the established (legitimate and transparent) international channels for the creation of binding transnational IP agreements, such as the WTO and WIPO. This becomes more important when we realise that the scope of ACTA will likely reach far beyond the signatories to the document, effectively being used as a bargaining chip to force developing countries into accepting similarly harsh IP regimes and forcing western proprietors' agenda on the world at large.

Of course, all of this is profoundly undemocratic; ACTA being an instrument which, if ratified, will bind national legislatures of signatories in a number of key respects regarding their domestic IP provisions and effectively pushing through a SOPA style copyright regime via the back door. This is even more so the case with the ACTA Committee- a body created by ACTA with the power to interpret and modify the agreement, as well as make amendments, again without using legitimate national and international channels.


2. It will have a chilling effect on innovation and freedom of expression

Moving to the provisions of the agreement itself, there are wide ranging concerns that it will have profound and dangerous effects on freedom of expression and culture. If ACTA is enacted, ISPs and online services will find themselves increasingly under pressure from the entertainment industries to monitor and filter content as well as individual communications.

This effectively leads to fears of censorship, removed from legitimate judicial channels and placed in the hands of private actors, as well as to the damaging effects for the principle of net neutrality in general. The agreement also provides for draconian search and seizure measures to become widespread.

This, allied with the harsh criminalising provisions of the instrument (see below), mean the potential for family computers being seized, denying them access to freedom of information and expression in the absence of any wrongdoing.

Needless to say, such measures would have a devastating and chilling effect on internet users and startups alike. Provisions such as the broadly-defined criminal sanctions for 'infringement on a commercial scale' (so broad as to potentially include not-for-profit filesharing as well as legitimate online services) will act as a harsh deterrent to innovation and freedom of expression.


3. It is Unjustifiably Harsh

ACTA seeks to employ oppressive punitive conditions as well as extend criminality for acts previously only considered civil matters. As mentioned above, ACTA seeks to cover activities which are both for-profit and not-for-profit, with provisions drawn in as vague and broad a manner possible so as to include within their scope widespread filesharing practises. This effectively criminalises a generation of net users, punishing them for an industry's failure to adapt to new technology. This should hardly be surprising since criminalising file-sharing was specifically part of the EU Commission's ACTA mandate, even without any motive of financial gain.

In terms of civil enforcement the provisions of ACTA are no less harsh, specifying provisions to include mandatory schemes of statutory damages which could lead to file-sharers in signatory countries becoming financially liable on a massive and disproportionate scale.

The document additionally provides that judges potentially take into account, in awarding damages, a number of considerations of value as submitted by the right holder, including lost profits, the market value or even the suggested retail price. This last provision gives standing to the 'lost sale myth'; an entirely unrealistic portrayal of the actual cost to the rights holder of file-sharing (if I download a track, this does not reflect that I am necessarily willing to pay the retail price).

Further, the provision that a judge can give credence to considerations from one side of a case and not another, while not technically binding, is practically unheard of in domestic law, and drastically impinges upon the right to the defender of a fair trial.


4. It is Inherently biased towards the interests of big business

If we expand upon this specific example of bias, it quickly becomes clear that the whole text of ACTA is inherently skewed towards a view and consideration of intellectual property rights which stresses the importance of ownership to the detriment of vital fair use provisions.

Unsurprisingly this is exactly the view of intellectual property law lobbied for by big business; one which favours their own interests over the those of creators and innovators. ACTA increases and strengthens the powers of the entertainment industries across the board, increasing criminal and civil sanctions and establishing new procedures which allow the big corporations to police the internet and bully smaller creators and innovators.

Importantly, the instrument makes mandatory the restrictions associated with a proprietary regime in intellectual works without making mandatory subsequent fair use provisions which are so vital for innovation. In such a climate, with national legislatures hamstrung by the binding nature of ACTA and with pressure on all sides from entertainment industries, it seems unlikely that the power they retain will be used to increase fair use provisions, much rather the opposite.

Another problem, already touched upon, is that the document also fails to consider fully the fundamental rights of all parties affected by the agreement. The European Economic and Social Committee has pointed out that the rights to information, health, sufficient food, right to farmers to select seed and the right to culture, all suffer in the wake of an overbearing emphasis on property rights. It must be remembered that no property right is an absolute right in anything and this is even more explicitly so the case in intellectual property.


 5. It is just the latest effort in a Punitive, Repressive and ultimately self-defeating industry Strategy.

Ultimately, the ground of the problem with ACTA is that it is a document which seems to be designed with a particular repressive and socio-economically damaging strategy in mind. It relies on a reification and a ramping up of the greediest concerns of an outdated industrial paradigm which would seek to lock down culture, technology and innovation in the name of profit. I say this is self-defeating because, in fact, locking down culture is ultimately not only socially detrimental, but is also economically damaging.

ACTA is clearly designed to be a blueprint for things like SOPA and PIPA coming in through the back door of secretive international negotiation, in consultation with the content and pharmaceutical industries, intent on widening the spread of DMCA-like legislation worldwide, first through legal instrument, and then through political pressure.

Ultimately ACTA is just the latest of many attempts to drive through legislation pursuing a harmful strategy which obscures the chance any meaningful opportunity to start to think about how intellectual property laws might be reformed in ways which reconnect it with its roots – an instrument designed to secure the proliferation of creative works and to motivate people to create, to innovate and to produce for the common good. It is a strategy that begun in the eighteenth century, utterly unequipped to deal with today's technology and way people today innovate. It is for this reason more than any other that any legislation pursuing this strategy, be it SOPA, PIPA, ACTA or any other incarnation, must be strongly opposed.


Image: By ottodv @Flickr [CC BY-SA 2.0 licence]

Facebook goes public

A short summary of recent comment on Facebook's proposed IPO

The big social media news in 2012 so far is of course Facebook's proposed Initial Public Offering; the plan for the most popular social networking site worldwide to go public, meaning that Facebook is getting ready to have shares being traded on the stock market by May this year. As you have probably heard, Facebook's numbers are “very impressive”, as described by Kathleen Smith, principal of IPO investment advisory firm, Renaissance Capital. In case you haven't, here they are again: Facebook has 845 million users, 443 million of those are daily users, it's profits rose by 65% in 2011 to $1 billion, off revenues of $3.71 billion, founder and Harvard dropout Mark Zuckerberg is worth an estimated 17.5 billion and number 52 on Forbes billionaires list and so on and so on. (sources: BBC news, ForbesWikipedia)

We know that Facebook has been a spectacular, fast-developing success since its inception in 2004 and going public will be a way for it to continue to make more money. The stock market flotation seeks to raise around $5bn. The questions looming around this new prospect now focus on what will the implication be for the social experience of Facebook? 

In short, the decision will mean the company will have to publish its financial information, so we can see how much it makes from advertising revenue and it will have to answer to shareholders when managing profitability. The underwriters of Facebook's IPO will be Morgan Stanley and Goldman Sachs will also be involved. They will be aiming at large businesses and wealthy famous people as the customers they want to buy shares. Daniel Burrus writing for the Huffington Post identifies two potential problems with how Facebook might have adapt to drive revenues: The first is that it might have to change its privacy policy again to 'allow them to be more intrusive' which could create a backlash, and the second is that Facebook could allow more advertising on the site, interfering with the sites use and possibly causing more upset. So an increase in adverts on the site and compromising privacy are concerns.

Zuckerberg has always expressed in interviews that his vision and motives for Facebook centre on its information sharing powers and the importance of openness as a social good. (BBC documentary: Mark Zuckerberg: Inside Facebook, Wired interview 2010) In an interview with Wired in 2010 he said, “ … it bums me out that people immediately go 'you must be doing this to make money'. Because that's so different from the ethos of the company”. He went on to say that Facebook's use of adverts was sparse compared to the average internet search. So there is a very real paradox in the new impetus for driving more profit and the executives' own original goals. Its a finely balanced thing, too much pressure from business and shareholders could mess up Facebook's entire creative purpose, its precariously held kudos for being cool, social, democratic and even subversive.

Glancing over the 'impressive numbers' on Facebook's usage and estimated worth and then reading Zuckerberg's letter in the prospectus for the IPO highlights the potential gap between Zuckerberg's idealism and those who will look at Facebook with dollar signs in their eyes. Zuckerberg wrote: “Facebook was not originally created to be a company. It was built to achieve a social mission- to make the world more open and connected. We think its important that everyone who invests in Facebook understands what this mission means to us, how we make decisions and why we do the things we do.”

In order to make this mission possible Facebook execs will have to strike a difficult balance to keep fans onside from 2012 onwards. Some commentators remind us that Facebook is not safe from the competitive and constantly changing world of internet start-ups that saw Yahoo and Myspace get usurped by newcomers. There is a danger that a Facebook site full of adverts would out people off. But on the other hand if you read any book giving advice to marketers on how best to utilise social media currently, you may question whether this is a door that hasn't already been opened. With such a huge following and now new investment it is hard to imagine a world without fb in the near future. What is more likely is that new groups will build on the platform that already exists and will develop alongside it.

What the new business model will do to Facebook is something we will find out sooner. Later this year when we sign in to invariably check our messages, share links, like pages, write to friends, form groups, create events, upload photos, see friend's photos, update our status or add new friends we will be able to see what subtle or dramatic changes the our favourite social network has undergone.

Image: Mark Zuckerberg, taken by Bryan Thatcher: CC BY-NC-SA 2.0

Commission Proposes Stronger Data Privacy Legislation

Revising an old directive; renewed legislation with more teeth

After weeks of suspense and rumours, the European Commission introduced long-awaited legislation to update the 1995 Data Protection Directive, the primary instrument governing personal privacy in Europe. These widely-anticipated changes were spurred in large part by three distinct motivations: (1) the desire to provide users stronger rights over their personal information, (2) the need to adapt the 1995 pre-Internet Directive and (3) a wish to harmonise divergent privacy laws across all the European Union.

Ironically, these were the same exact goals 17 years ago when the European Union first passed the Data Protection Directive. At that time, there were few comprehensive privacy laws in Europe (or anywhere else, for that matter). The initial Directive required member states to pass enacting legislation codifying the principles contained within the document, whilst allowing for a margin of interpretation that would prove its limits in practice. Indeed in the intervening years the EU’s 27 member states have all implemented and interpreted the Directive in varying ways, leading to a fair amount of confusion to companies offering services across the internal market. And while each country is slightly different, enforcement has been consistently spotty across the continent, leaving users with the suspicion that their information is not adequately protected as companies utilise increasingly sophisticated technologies to track user behaviour.

The Commission has been working on the text of the legislation for over a year and has been consulting stakeholders for more than two years; in December, what was purportedly a near-final version was widely leaked and analysed. The most significant change in that draft was that the legislation was in the form of a regulation instead of a directive, meaning that it would be automatically binding on member states (rather than a mere instruction to national governments to pass consistent legislation). The draft contained other provisions designed to make complying with European privacy law simpler for companies — such as subjecting companies to the jurisdiction of one lead national data protection regulator, rather than 27 potentially different authorities. The draft legislation also eliminated the burdensome and often costly requirement to provide regulators with pro forma (and typically ignored) notification in advance of all data processing activity (and paying filing fees for the privilege).

On the other hand, the legislation provided new protections for users, such as a very strict data breach notification standard, a requirement that all consent to collect and use personal data needs to be upfront and explicit, and a so-called “right to be forgotten” — the ability of users to erase (at least some of the) information held about them by others. It also called for stronger powers for regulators, including the ability to obtain fines as high as 5% of global revenues for privacy violations (for a large international company, this could easily run to the hundreds of millions of dollars, though the legislation does include language that the penalty must be “proportional” to the scope of the violation). In response, many (especially in the United States) criticised the heightened user protections as being unworkable and unduly burdensome on industry; the United States Department of Commerce reportedly lobbied extensively to have the legislation revised prior to formal introduction.

The eventual version that was released by the Commission does address many of the criticisms that had been levelled, and appears to try to find middle ground between user’s rights, practical implementation and the costs imposed on businesses. For example, the compromises include a less prescriptive data breach rule and a 60% decrease in the maximum penalties a regulator can levy. The legislation still has its critics from both civil society and industry, and there will be intense lobbying as the bill is debated and amended in the European Parliament and Council (A side note to all this is that much online privacy won’t really be affected by this new law. In 2002, the European Union passed a specific law on e-Privacy that governs issues like cookies and online behavioural tracking. Of course, the Data Protection Regulation could be revised to specifically supersede the e-Privacy Directive if officials believe the Regulation is sufficiently robust to address the areas the Directive was written to address).

Although the particulars are still being worked out, the legislative proposal does make signJustin Brookmanificant progress on the Commission’s primary focus on giving users strong, consistent protections across the Union. It represents a frank admission that the strong principles contained in the 1995 Data Protection Directive haven’t been implemented in a consistent and effective manner in practice to protect users, and that more rigorous laws are needed. If successful, the new regulation will better secure user data while offering companies a clear, predictable path to regulatory compliance; at worst, this same scenario could be playing out in another 20 years, as another Commission tries to find a new legal means to meaningfully protect personal information across Europe.

Justin Brookman is the Director of Consumer Privacy at CDT, the Center of Democracy & Technology. CDT is a non-profit public interest organisation working to keep the Internet open, innovative, and free.

Image: protection?! by zazie_@Flickr. CC BY-NC 2.0 licence

Dealing with data – The 'burden-less' business?

Sara Kelly of COADEC reviews Viviane Reding's latest proposals for EU Data Protection reform

“Businesses will now be burden-less under these reforms”, announced Viviane Reding, Vice-President of the European Commission and EU Justice Commissioner, during the launch yesterday of reforms to the EU's 1995 data protection rules aimed at strengthening online privacy rights.

Leaked drafts of the directive have been circulating since December, and many of today's announcements were trailed in Reding’s speech to the Digital Life Design (DLD) conference in Munich last weekend. Key changes confirmed today include a single set of rules on data protection, the requirement of reporting data breaches within 24 hours, the requirement of explicit consent, and possibly most controversially, the “right to be forgotten”.

Amid reports ahead of the announcement of the burden of complicated procedures of data protection, Reding used her address today to highlight the burden on businesses in complying with 27 different data protection requirements across the EU. This has limited the ability of many businesses to operate services that deal with data in multiple countries, so harmonisation of these codes will be welcome by businesses of all sizes as a way of saving time and money. Moreover, the directive’s proposed exemption for companies with fewer than 250 employees from the requirement to have a data protection officer shows that the Commission is conscious of the particular challenges that small businesses face in complying with these types of rules.

That said, it is not at all clear that the new directive will eliminate burdens for small businesses, and indeed there appears to be significant potential to increase them. This is especially true on two fronts:

  • The “right to be forgotten” principle has a very real danger of being misused, in a way that particularly affects the owners of small social websites that rely on content from users. The directive as it stands outlines that the only way a user will not be able to remove their data is when this relates to a criminal investigation. The “right to be forgotten” could easily become “the right to take content and sell it for more money when I think it might have more value than when I originally gave you the right to use it”.
  • Meanwhile, the heavy fines proposed for non-compliance may fall disproportionately on smaller enterprises, and it is possible that an inadvertent error may be enough to put one out of business

Addressing issues of data security is of course vital, but it must be balanced against the very legitimate uses of data employed by innovative businesses—most notable, social networks. Globally we have increasingly enjoyed the liquidity of information that the Internet provides. A picture shared or a blog posted can reach a wider audience than ever before, and that has bought with it incredible opportunities for those wishing to share their content and those designing platforms to do this. 

The proposed directive will now be passed on to the European Parliament the Council of Ministers for discussion. We hope that these discussions will flesh out some of the details this directive desperately requires to ensure that the removal of one burden does not in turn lead to the creation of new ones, especially where the result would be detrimental to small, innovative businesses.

Sara Kelly is Policy and Development Manager for COADEC, The Coalition for a Digital Economy. COADEC works to support legislation and other government policies that foster a lasting, sustainable and innovative digital economy for Britain.

Image: Viviane Reding. EU Social @Flickr. CC BY-NC-SA 2.0 licence

Teaching our kids to code

An overhaul of ICT in schools is badly needed, argues Milena Popova, but Gove's proposals are not quite right yet

Could it be that the Teach our kids to code e-petition is the smallest successful e-petition in UK politics? It would certainly seem so, after this week's news that Michael Gove wants to replace the current ICT school curriculum with a Computer Science programme. I do not often (ever?) agree with the Education Secretary, but today's announcement is definitely a step in the right direction.

In his speech at the BETT show this week, Gove correctly identifies technology as a key driving force and change agent in our society. Yet there is also an increasing trend for our gadgets to be black boxes to us; we do not understand how they work, we do not understand either their potential or the dangers they bring with them, and therefore we are not in control. Our gadgets, our technological inventions, control us. Such control extends from Sony and Apple telling us what we can and can't do with the hardware we have purchased from them to technology lobbyists taking advantage of our politicians' ignorance to sell them the next technological panacea. If we are to regain control of our technology, technical literacy is vital, and fostering it from an early age is clearly the best way forward.

There are other good reasons why learning to code can be beneficial both for our children and for society as a whole. @pozorvlak for instance argues that learning the way of thinking involved in programming and learning some basic programming skills has a huge potential to revolutionise productivity. Creating what he calls the "mass-algorate society", where everyone has basic coding skills, would be comparable to the move to a mass-literate society. No longer will there be a select few who understand technology - we all will be able to unleash its power.

For all that, though, what Michael Gove is actually proposing is far from being unmitigated good news. There are a number of issues to be addressed if this idea is to succeed. Gove argues that swift change is required, that technology moves so quickly that we cannot afford to spend four years creating a new ICT national curriculum which by the time it becomes operational will be obsolete. To an extent, he has a point. Yet what he is proposing will essentially allow schools to teach what they like, how they like in the area of ICT and Computer Science. From September, teachers will be left to their own devices to scour the web for materials, create their own, or work with businesses and universities to create courses. While for a small number of passionate, skilled teachers this may be heaven, I suspect the vast majority will find themselves lost and either stick to the existing curriculum or struggle to find material that is valuable and engaging at the right level. At least in the short term, I believe most pupils are likely to suffer as a result of the huge variance in quality of courses this approach is likely to generate. Looking ahead, universities may quickly find that a prospective student with a "Computer Science" qualification from one school has a completely different skill set to one from a different school. Clearly, some structure and rigour is called for here.

A related and potenially bigger issue is the lack of teachers with the right skills. Ian Livingstone, who co-authored the report this new policy is partially based on, claimed on the Today Programme that the British Computing Society has 1,000 teachers ready to go into schools and teach computing tomorrow. Yet that is barely enough to scratch the surface, and out of 28,000 newly-qualified teachers in 2010 only three had a Computer Science degree. This, too, needs to be addressed if Michael Gove's ambition to teach our kids to code is to succeed.

Involving businesses in the new Computer Science curriculum is a key cornerstone of Michael Gove's policy. The BCS is delighted. They proudly point at the Computing at School curriculum, already endorsed by both Google and Microsoft. Yet arguably a corporately sanctioned curriculum is as bad as one mandated by government after four years of deliberation. Already, the Computing at School curriculum asks questions such as "Is privacy even desirable?" Of course Google would approve.

If we want our children to become true, empowered citizens of the digital world, then any Computer Science curriculum taught in our schools needs to be based on Free Software. Our kids need to grow up with the four freedoms: to run their software in any way they choose, to study their software and modify it to suit their purposes, to share their software and improve upon it, sharing those improvements as well. Those four freedoms are conducive to teaching and learning, to writing great code, and to enabling everyone to tap into the power of technology. Anything else... is a gilded cage.

Image: CC BY-NC-SA 2.0@vanberto

Blocking Newzbin

Newzbin is making legal history in the UK. Saskia Walzel looks at the 2010 High Court decision which found Newzbin guilty of copyright infringement.

Very recently the Government floated the possibility of a “cross-industry body... to be charged with identifying infringing websites against which action could be taken”. Copyright owners believe the ongoing Newzbin case provides the necessary legal basis for an industry body to decide which websites ISPs should block. Many websites technically enable users to infringe copyright, especially those who host user-generated content. Under the host principles, established in the Electronic Commerce (EC Directive) Regulations 2002 they have to respond to notice and take down request by copyright owners. Though just because users infringe copyright does not mean that the website itself is infringing copyright.

Newzbin, relatively obscure before it was taken to court in the UK by the Hollywood studios, is a Usenet indexing subscription service. In its various incarnations Newzbin made legal headlines this year when the High Court for the first time granted a blocking injunction under section 97A of the Copyright, Designs and Patents Act 1988 (CDPA). Before that, in March 2010 Newzbin became the first “filesharing service” found to infringe copyright in the UK.

Like the Pirate Bay, Newzbin advanced the “we’re just like Google defence”, focusing on the fact that Newzbin, much like a search engine, does not make infringing copies or communicate them to the public. While users may infringe copyright the service itself does not, it is argued, perform any of the acts restricted by copyright.

However, under section 16(2) of the CDPA it is also an infringement of copyright to “authorises” others to do any of the acts restricted by copyright. In Twentieth Century Fox v Newzbin [2010] the High Court ruled that the way Newzbin was set up and operated by its administrator, and the way the administrator behaved, amounted to de-facto authorising the infringement by its member.

According to Mr Justice Kitchin “a reasonable member would deduce from the defendant's activities that it purports to possess the authority to grant any required permission to copy any film that a member may choose from the Movies category on Newzbin and that the defendant has sanctioned, approved and countenanced the copying of the claimants' films, including each of the films specifically relied upon in these proceedings.” In deciding that Newzbin had infringed copyright the High Court relied on CBS Songs v Amstrad [1988], which has become the defining case law on authorising infringement.

In 1988 the House of Lords found that Amstrad had not authorised infringement by users of its twin cassette deck, as alleged by the BPI and its members. It was ruled “that ‘authorise’ means the grant or purported grant of the right to do the act complained of. It does not extend to mere enablement, assistance or even encouragement.” The House of Lords rejected the argument that Amstrad had authorise infringement by technically enabling it and encouraging infringement by advertising that the cassette deck “now features 'hi-speed dubbing', enabling you to make duplicate recordings from one cassette to another, record direct from any source and then make a copy and you can even make a copy of your favourite cassette.”

In coming to the conclusion that Newzbin had authorised its users’ infringement the High Court considered what the Amstrad case established as relevant factors, namely: “the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material supplied constitutes the means used to infringe, whether it is inevitable it will be used to infringe, the degree of control which the supplier retains and whether he has taken any steps to prevent infringement.”

The High Court concluded that the set-up of Newzbin, and the behaviour of its admin, amounted to authorising infringement to such an extent that Newzbin also has “procured and engaged with its premium members in a common design to copy the claimants' films”, and hence was also jointly liable for the infringement. Specifically, the site was “structured in such a way as to promote such infringement by guiding the premium members to infringing copies of their choice and then providing them with the means to download those infringing copies by using the NZB facility”, which the High Court identified as a crucial element of the website, and the administrator “further assisted its premium members to engage in infringement by giving advice through the sharing forums”.

Not really like Google then, or YouTube, or Wikipedia.... or like cyberlockers... maybe. It’s not like the movie and music studios only want the Pirate Bay blocked, they want an industry body akin to the Advertising Standards Authority to block a number of websites totalling the low hundreds.1 With so little case law to go by it is difficult to foresee how an industry body would apply the Amstrad test on authorisation to the wide range of web services that technically allow users to infringe copyright. If the ongoing legal punch-up between copyright owners and cyberlockers in the US is anything to go by, “authorising” may end up meaning simply “anything we don’t like”. In the US movie and music studios are accusing cyberlockers of committing acts restricted by copyright, and for good measure, that they are “actively inducing” their users to infringe copyright.

The cases are currently playing out in court, to the backdrop of tense negotiations over whether remote storage services, call them cloud or cyberlocker, need to pay for a copyright licence to let users store their content. Ultimately copyright owners have a commercial incentive to cry “copyright infringement” whenever any new web service takes off, because a website is only liable to pay for a licence to copyright owners if they engage in acts restricted by copyright. Until the UK High Court has done the heavy lifting and established a robust body of case law, it is inconceivable that a non-judicial body should be allowed to decide which websites infringes copyright through authorisation. And once the case law has been established, it is questionable whether an industry body should be allowed to intervene in what are essentially commercial negotiations.

1 “Site Blocking” to reduce online copyright infringement: A Review of section 17 and 18 of the Digital Economy Act, Ofcom, see pg.47

Image: CC BY-NC-ND 2.0@Si McMahon

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Schmidt Happens

Wendy M. Grossman responds to "loopy" statements made by Google Executive Chairman Eric Schmidt in regards to censorship and encryption.

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