Digital rights and intellectual property (IP) in the UK

Tuesday, January 03, 2006

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Will UK law finally be modernised for the digital age? There seems to be lots going on at the moment in terms of both official/semi-official reviews of IP in the UK and the rise of grass roots consumer rights groups. [Added 6 February 2006:] I plan to keep this post updated to provide on a single page a snapshot of developments on IP reform in the UK.

UK IP review - Gower Review

On 2 December 2005 the UK Treasury announced an "independent review" of the UK's intellectual property framework under Andrew Gower, former editor of the Financial Times newspaper, further to the Labour Party's commitment "modernise copyright and other forms of intellectual property so that they are appropriate for the digital age". He will report to the Chancellor and the ministers for trade and industry and culture, media and sport in autumn 2006.

It is interesting and perhaps telling that they said (my emphasis):

"Whilst the Government believes the present UK system strikes broadly the right balance between consumers and rights-holders, the review will examine whether improvements could be made and, as appropriate, make targeted and practical policy recommendations."

Many in fact don't think the balance is right at the moment. For instance, the concept of "fair dealing" in the UK (things which won't amount to copyright violation) is quite different from the more general "fair use" concept in the USA: something is "fair dealing" only if it's on a very narrow and specific list of things, whereas something could be "fair use" if it fits within certain broader principles, even if not specifically mentioned as permitted. That rather says something about the differences in their conceptual approaches, I think, although the USA seems to be fast catching up in the "let's limit the user as much as we can" stakes.

Scope of UK IP review

"The review will provide an analysis of the performance of the UK IP system, including inter alia,

the way in which Government administers the awarding of IP and their support to consumers and business;
how well businesses are able to negotiate the complexity and expense of the copyright and patent system, including copyright and patent licensing arrangements, litigation and enforcement; and
whether the current technical and legal IP infringement framework reflects the digital environment, and whether provisions for ‘fair use’ by citizens are reasonable.

The Government has previously committed to examining whether the current term of copyright protection on sound recordings and performers’ rights is appropriate. This will also be conducted within the review."

The Treasury have started taking comments, including by email. Let's hope they get lots of views, the more the merrier. Indeed, now that Google seem to be expanding within the UK, perhaps they'll move some of the lobbying money that's going to Washington to the UK and Europe too, and (to quote their Washington press release) do something here to "Defend the Internet as a free and open platform for information, communication and innovation".

Update: the call for evidence closed on 21 April 2006. More info generally is on the Treasury's Gower Review of Intellectual Property webpage. The report is to be published on that site "in Autumn 2006" so, hopefully, we'll hear more soon.

British Library's IP manifesto

In terms of the responses to the Gower review, of particular interest is the British Library's publication, announced in late September 2006- a 4-pg manifesto Intellectual Property: a Balance, which the Gower review really ought to note given the British Library's unique position as custodian and safekeeper of knowledge for our future generations.

Their key points (with which I could not agree more):
1 Digital is not different – Fair dealing access and library privilege should apply to the digital world as is the case in the analogue one.
2 Contracts and DRM – New, potentially restricting technologies (such as DRMs /TPMs) and contracts issued with digital works should not exceed the statutory exceptions for fair dealing access allowed for in the Copyright, Designs and Patents Act.
3 Archiving – Libraries should be allowed to make copies of sound (and film) recordings to ensure they can be preserved for posterity in the future.
4 Term of copyright – The copyright term for sound recording rights should not be extended without empirical evidence and the needs of society as a whole being borne in mind.
5 Orphan works – The US model of dealing with orphan works should be considered for the UK.
6 Unpublished works – The length of copyright term for unpublished works should be retrospectively brought in line with other terms – life plus 70 years.

Digital rights management review

In November 2005, the All Party Parliamentary Internet Group (APIG) held an enquiry into the issues surrounding Digital Rights Management (DRM), with a deadline for comments which expired on 21 December 2005. They wanted views on:

Whether DRM distorts traditional tradeoffs in copyright law;
Whether new types of content sharing license (such as Creative Commons or Copyleft) need legislation changes to be effective;
How copyright deposit libraries should deal with DRM issues;
How consumers should be protected when DRM systems are discontinued;
To what extent DRM systems should be forced to make exceptions for the partially sighted and people with other disabilities;
What legal protections DRM systems should have from those who wish to circumvent them;
Whether DRM systems can have unintended consequences on computer functionality;
The role of the UK Parliament in influencing the global agenda for this type of technical issue.

The Officers of APIG, following consideration of written evidence will decide, which organisations and individuals to invite to give oral evidence in Westminster in January 2006. They have discretion whether to publish any evidence received but so far haven't published any. ( But see the submission of the Open Rights Group, on which more below.)

It's good that they're looking at the issues, and presumably APIG will be providing some input to the general IP review at least on the DRM front - I'm assuming that the "whether the current technical and legal IP infringement framework reflects the digital environment, and whether provisions for ‘fair use’ by citizens are reasonable" part of the Gower review will include DRM.

[Added 6 February 2006:] Oral evidence was taken by APIG on 2 February 2006 - see ORG's informal notes of the oral evidence, and The Register's article.

Results of digital rights managment review

Update: in June 2006, following their review, APIG released “Digital Rights Management”: Report of an Inquiry by the All Party Internet Group. Key recommendations of the report were that:

the Office of Fair Trading (OFT) bring forward appropriate labelling regulations so that it will become crystal clear to consumers what they will and will not be able to do with digital content that they purchase.
OFCOM publish guidance to make it clear that companies distributing Technical Protection Measures systems in the UK would, if they have features such as those in Sony-BMG’s MediaMax and XCP systems, run a significant risk of being prosecuted for criminal actions.
the Department of Trade and Industry investigate the single-market issues that were raised during the Inquiry, with a view to addressing the issue at the European level.
the government do not legislate to make DRM systems mandatory.
the Department for Culture, Media and Sport review the level of funding for pilot projects that address access to eBooks by those with visual disabilities and that action is taken if they are failing to achieve positive results.
the Department of Trade and Industry revisit the results of their review into their moribund “IP Advisory Committee” and reconstitute it as several more focused forums. One of these should be a “UK Stakeholders Group” to be chaired by the British Library.
the Government consider granting a much wider-ranging exemption to the anti-circumvention measures in the 1988 Copyright, Designs and Patents Act for genuine academic research.
having taken advice from the Legal Deposit Advisory Panel, the Department for Culture, Media and Sport hold a formal public consultation, not only on the technical details, but also on the general principles that have been established.

New media and the creative industries inquiry

[Added 6 February 2006:] For completeness, here's one I missed earlier - on 16 November 2005 the UK Parliament's Culture, Media and Sport Committee announced an inquiry "into the challenges and opportunities for the creative industries arising from the development of new media platforms. For the purposes of the inquiry, the term “creative industries” includes music, visual broadcasts, sound broadcasts, film, graphic art, design, advertising, fashion and games software".

The Committee is particularly interested in receiving evidence on the following issues:

The impact upon creative industries of recent and future developments in digital convergence and media technology;
The effects upon the various creative industries of unauthorised reproduction and dissemination of creative content, particularly using new technology; and what steps can or should be taken – using new technology, statutory protection or other means – to protect creators;
The extent to which a regulatory environment should be applied to creative content accessed using non-traditional media platforms;
Where the balance should lie between the rights of creators and the expectations of consumers in the context of the BBC’s Creative Archive and other developments."

(I've blogged about the Creative Archive before.)

On 12 January they extended the deadline for submissions to 28 February, and private individuals as well as organisations are free to comment if they want to (though there is a preferred format).

Update: Their investigations continue. On 7 November 2006 the Committee held its 8th oral evidence session. (For brief info on previous evidence sessions see this page.) I guess that means it will be a while before we hear the outcome of the inquiry.

IPPR research

Going back to July 2005, the Institute of Public Policy Research, a think tank influential with the Labour party, started a project "Intellectual property and the public sphere: balancing competing priorities", whose aim was "assess the various public and private goods that are at stake in the way that the UK regulates intellectual property, in the context of new media". They do seem to invite public comments, but I've seen very few on their blog.

In early December the IPPR published their first paper from this project, 'Markets in the Online Public Sphere', by senior research fellow Will Davies, summarised as: "This looks at why the politics and economics of online information has become so fiercely contested, especially around intellectual property, and the nature of the dilemmas this creates for policy-makers. The paper stands back from this to ask why things have reached this impasse, and presents an analysis that positions all these competing visions within a broader understanding of what constitutes ‘the public sphere’. It concludes by out-lining the possibilities available for Government." Comments are invited on this paper.

Mr Davies also set out some of the same ideas in an article in Computing: he puts it as, "The piece challenges the innate assumption that content industries have economics on their side, while open access projects have morality on their's. In fact, I argue, the moral case for IP enforcement is far stronger than often credited, but so is the economic case for opening up information to a greater extent. Distinguishing the goodies from the baddies is therefore far from straight-forward."

The IPPR IP project is to conclude in summer 2006 (and yes I personally think, with all respect to Richard Stallman, that the broader "intellectual property" is the proper scope for the review, not just say copyright - particularly now that the UK are looking at IP as a whole, and not just copyright). No doubt the results will feed into the Gower review.

All in all then, it seems things are coming together on this front in the UK, and it's a good time for groups such as the fledgling Open Rights Group (see below) or European consumer groups like BEUC, which started a Consumers Digital Rights campaign in late November, and maybe even other groups, perhaps more radical in their approach. They'll certainly have plenty to get their teeth into.

Update: the IPPR report was published in late October 2006. See further this post.

Personal internet security review

Update: Even more on this front - in July 2006 the House of Lords Select Committee on Science and Technology started investigating "security issues affecting private individuals when using communicating computer-based devices, either connecting directly to the Internet, or employing other forms of inter-connectivity"(press release).

Their focus was on Defining the problem, Tackling the problem, Governance and regulation and Crime prevention (see the Committee page for more details of specific issues they're interested in), notably:

What is the nature of the security threat to private individuals and what is the scale of the problem?
How well do the public understand the nature of the threat they face?
What can be done to provide greater personal internet security? How much does this depend on software and hardware manufacturers?
Is the regulatory framework for internet services adequate?
How well equipped is Government to combat cyber crime? Is the legislative framework in UK criminal law adequate to meet this growing challenge?

The deadline for submitting written evidence expired on 23 October 2006 and the Committee hope to publish their report "next summer" or "in early 2007" (depending on whether you look at the start or end of that Webpage!)

Broadcasting and TV - public service media content inquiry

The House of Commons Culture, Media and Sport Committee on 26 October 2006 announced an inquiry into Public service media content.

This inquiry is still live, see that Webpage for info on how to submit your comments, deadline 18 January 2007.

The terms of reference for the inquiry are as follows:

The prospects for maintaining plurality in public service broadcasting in the digital age
The practicality of continuing to impose public service obligations on commercial broadcasters
The viability of existing funding models for ITV, Channel Four and Five
The case for public funding of broadcasters in addition to the BBC
The future of key areas of public service media content such as news provision and children's programming
The value of the Public Service Provider concept as advanced by Ofcom
The case for provision of public service material on new media.

The last is why I've included mention of that inquiry in this post, as of course it refers to the BBC providing "public service material" over the Net etc.

The Open Rights Group

On Tuesday 29 November 2005 (yes, this write up is very behind the times), I attended the inaugural meeting of the Open Rights Group, which I've blogged about before. The main moving force behind ORG, Suw Charman, has written up the meeting and also about some follow up action; there's a list of current digital rights issues too. [Added 6 February 2006:] See now the FAQ about ORG; and clearly I'm not alone in my view, expressed originally below, about harnessing the power of the media and celebrity - the second ORG networking meeting on 29 January will feature as speaker (on the European Broadcast Flag) Cory Doctorow of Boing Boing and formerly the EFF, while writer Neil Gaiman has agreed to become the ORG Patron.

The meeting was stereotypically management "focus group"-y in many ways, with people being asked to discuss ideas in groups and note them on cards stuck up on boards which were then photographed, and whose contents will be summarised online at some point (now, via a wiki). Some may sneer at that kind of approach (and have), but I think it helped to break the ice and kickstart the process of people with common interests getting to know each other, as much it helped gather concrete thoughts on the purpose of the group and the way forward.

Interestingly, heated debate has arisen from the criticisms levied at ORG, its aims, its approach, etc etc etc, by a trio who attended the meeting. Much has already been said about all this - but I'll add my tuppence worth anyway.

I think any brand new organisation should at least be given a chance to find its feet and clarify its goals, and trying to involve its members and heighten their sense of commitment by seeking their views is no bad thing (even if their collective ideas may be little different from what one person with a pen and piece of paper, or OK keyboard and monitor, could draw up in the same time or less).

And why castigate an organisation for its fundraising attempts, however blatant? Realistically, organisations need financing - it's hard to get anywhere without spending at least some hard cash, so I see "moneygrubbing" as pragmatic rather than negative.

Transparency is of course always desirable and I would assume that once ORG has settled down a bit, thought will be given to what form the organisation will take and how information about its workings will be publicised, including how the money raised will be spent.

Don't get me wrong. Stirrers have their place, to prevent complacency and inflexibility. Battles can be fought on more than one front, and often should be. And I believe most who are concerned about these issues would agree that it is critical to drive home to the world at large that something as rarefied sounding as IP does in fact impact on their everyday lives in a very real way, and that for their own sakes' it might behove them to take an active interest in it. The issue seems to be, how?

While I can see the point of the deliberately provocative exhortation to encourage the digital rights holding corporations to even more excesses (on the digital rights management and similar fronts) with the aim of provoking a backlash from the world at large, I share the concern that this could result in the rights holders going much further than they would otherwise, yet not quite far enough to provoke that backlash. So users could end up being worse off. That's the major risk I can see with that sort of approach - going too far but not far enough.

And I think that one of the most effective, if not the most effective, way to bring about real change is to harness the power of the media and celebrity - much more influential these days than mere politicians. Look at Jamie Oliver's impact on school dinners, for instance. So I say there is in fact a lot of point in liaising with and cultivating the media, yes including issuing press releases, and hopefully getting celebs to join in the campaigning.

Finally, I can't resist ending on this thought: I was one of the, apparently few, people "genuinely tickled" by the trio's idea of egging on the Big Corporations to even more restrictive action in the hope of bringing about that Big Backlash; but, being neither sociologist nor waitress, I must presumably be a freak (that was the description of the entire universe of females present at that meeting, y'see). I shall leave it to others to speculate as to whether the two might by any chance be related...

European lobbying

Update: While my main focus has been the UK, I thought it worth mentioning the European group Consumers Digital Rights which is campaigning for consumers' digital rights across the EU.