I’ve just got back from the British Library, for the launch of a consultation into some of the changes to copyright law proposed by the Gowers Review of Intellectual Property. Those with long memories will recall that Andrew Gowers made several recommendations under the heading of “flexibility”, with the intention of crafting the current law into one that was relevant to the way consumers, artists, librarians and educators expect to use content in the digital age. Only then, he maintained, would regular folk understand and respect the law.

The consultation launched today focuses on five of the recommendations, reproduced here:

Recommendation 2: Enable educational provisions to cover distance learning and interactive whiteboards by 2008 by amending sections 35 and 36 of the CDPA.

Recommendation 8: Introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect. There should be no accompanygin levies for consumers.

Recommendation 9: Allow private copying for research to cover all forms of content. This relates to copying, not distribution of media.

Recommendation 10a: Amend s.42 of the CDPA by 2008 to permit libraries to copy the master copy of all classes of work in permanent collection for archival purposes and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear.
Recommendation 10b: Enable libraries to format shift archival copies by 2008 to ensure records do not become obsolete.

Recommendation 12: Create an exception to copyright for the purpose of caricature, parody and pastiche by 2008.

The first stage of the consultation is open until 8 April 2008. The Open Rights Group will be meeting with the UK IPO in the meantime, as well as submitting a formal response, to which we’d welcome your contributions on our interactive consultation tool.

At the launch event, the audience was dominated by groups representing artists and other rightsholders, although libraries and archives were also represented. Up on stage were Lord Triesman, minister at the Department for Innovation, Universities and Skills, Murray Weston of the British Universities Film & Video Council, Geoff Taylor of the British Phonographic Institute and Jill Johnstone of the National Consumer Council. British Library CEO Lynne Brindley kicked off proceedings with a speech that stressed the importance of balance between rightsholder interests and the public interest, and the need to make copyright both simple and also relevant to the digital age.

Those who welcomed the Gowers Review in 2006 might have been discouraged by Lord Triesman’s insistence that it was “not the final word”, and that exceptions for format shifting had to be narrowly defined; they should not, he stressed, permit legal circumvention of digital rights management (DRM) systems. However, the Minister was clear about the vital role evidence plays in policy-making around intellectual property and when questioned by the audience admitted that, while evidence of the economic damage caused by illicit filesharing is readily produced by industry, the economic value of “free” content has yet to be fully explored.

Murray Weston stressed how the archive of audio-visual material his organisation was responsible for maintaining had shed light on an aspect of human creativity which had previously been “the Cinderella of scholarship”. Geoff Taylor predictably preached caution when creating new exceptions to the law and questioned Gowers’ insistence that no levies be associated with the format-shifting exception. On the latter point, Jill Johnstone disagreed firmly: levies on recordable media were a blunt instrument that did not serve the consumer interest.

When questions were opened to the floor, the debate was momentarily hijacked by another Gowers recommendation altogether, number 39, which urges rightsholders and ISPs to come together to police illicit filesharing online. Lord Triesman re-emphasised the Government’s view that this outcome was best achieved voluntarily, but hinted that, should no voluntary agreement emerge by late Summer, regulation to achieve such an outcome might be expected in November 2008.

Returning to the matter in hand, some members of the audience questioned the efficiency of such a laboured consultation when contract law so often trumped copyright law anyway, by compelling consumers to sign away their “fair use rights” before consuming digital content. And an author in the audience asked when he might expect to attend such an event and see creators on stage discussing rightsholder interests, and not representatives of the distribution industries.

Eager-eyed readers will notice the absence of Recommendations 11 and 13 from the consultation:

Recommendation 11: Propose that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test.

Recommendation 13: Propose a provision for orphan works to the European Commission, amending Directive 2001/29/EC.

It is unclear when such proposals will be made, or indeed who will be doing the proposing. Discouragingly, the UK Intellectual Property Office conclude on their website simply (and mistakenly) that the “Recommendation is to the European Commission”. Still, hats off to the UK IPO for finally getting at least some of Gowers’ most exciting recommendations on their way to implementation.

Whilst ORG was on holiday, the Crown Prosecution Service published long-awaited guidance on section 3A of the Computer Misuse Act, which comes into force in April 2008 and outlaws making, supplying or obtaining “hacking tools”. Back in 2006, when amendments to the Computer Misuse Act were discussed in Parliament, ORG echoed widely-reported concerns that the legislation was far too broad. The security community were especially alarmed that tools routinely used to test for vulnerabilities or to stress-test networks would be erroneously covered by the legislation.

The guidelines bring some good news for developers, in that the offence will not be triggered unless hacking tools are developed “primarily, deliberately and for the sole purpose of committing a Computer Misuse Act offence”. However, the trigger for distribution offences - whether the tool is “available on a wide scale commercial basis and sold through legitimate channels” - should cause alarm amongst open source advocates.

ORG Advisory Council member Richard Clayton has provided excellent analysis of the guidance at Light Blue Touchpaper, and you can read up on the issue on the ORG wiki.

The House of Commons Justice Committee has today released a report into the protection of public data. The report is a good summary of the state of play and, in particular, of developments since the Chancellor announced to Parliament in November last year that HMRC had lost confidential records affecting 25 million UK citizens.

The report recommends a data breach notification law, criminal penalties for data controllers who are responsible for reckless or repeated security breaches and greater powers and resources for the Information Commissioner’s Office. Currently, the Information Commissioner receives roughly £10 million each year to conduct all of his data protection activities.

These recommendations echo those made by the House of Lords Science and Technology Committee in August 2007, recommendations that the Government rejected almost entirely. Perhaps the public outcry following the HMRC data security breach will help Government think again.

Today’s report is explicit about the real risks associated with big databases containing personal data that are open to large numbers of licensed users, and mentions the children’s database ContactPoint, as well as the planned National Identity Register. It also notes further risks associated with obligations to share data with EU member states:

“If data held by the Government is available for inspection outside the jurisdiction, then the importance of restricting the amount of data held, as well as proper policing of who had access to it, takes on even greater importance.”

Follow this link to read our December 2007 Supporters Update.

Along with details of our recent media forays and major success for Canadian copyright activists, we ask that you contact your MP over the ‘privacy timebomb’ and that you get involved with consultations (on Freedom of Information and Data Sharing regulations).