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October 24, 2006 | Suw Charman Anderson

Future of Copyright: Roundtable 2 - Business and economic drivers

Note: Again, these notes are verbatim and so things get a bit chaotic with so many people wanting to make different points, and revisiting issues brought up earlier in the conversation. We can no longer compete as northern companies on labour costs and materials, so IP is seen as a centre of innovation. Across the board in policy circles there's a focus on creativity which runs against some of the main narratives we've had on art in the last 30 years which questions the ideas of authorship, creativity, etc. This runs against the report of a report out of the DCMS where they looked at IP competition and did an analysis of VAPP (Value-Added Per Person), assumption that there's economic value per person, that some people are very important to the economy. But they found no excess value, as creative people may not be any more productive than any other industry. Rhetoric exists, 'creative industries', 'creative economy', but do we want to think in those terms? Also, a focus on trying to inculcate creativity and respect for copyright in school children. Attempt to get Key Stage 1 school children to use the (c) symbol in their essays and to get them to respect copyright, in an attempt to reduce file sharing. If we think about creativity and copyright it's important to differentiate it from originality and innovation. Different ranges of meaning, particularly when we talk about art or business. For many people with a vested interest the argument goes that 'strong copyright is good for the economy', so is creativity based on enhancing GDP? What's good for the economy? Does that mean 'what's good for the corporate sector'? Are we trying to juxtapose the moral and individual arguments against the utilitarian, macro-economic or corporate? Are we using art as the straw man argument where artists represent labour and are opposed to anything in business. If so, that's a very inadequate way of approaching questions of copyright and art. Copyright was originated by and on behalf of individuals who wanted to defend their rights, particularly in literature. But if it was invented for the individual, the argument from activists against copyright is that it's used now against the individual. Wasn't sure if we're clear between the differences between copyright, patent, trademarks and moral rights. Is the original question implying a focus which is not necessarily relevant to the issues that artists are concerned with. So many of the issues actually cut across the law, and focusing on one is not the best approach. Are we going in the direction we want to be going in? Is strong copyright law good for culture? One of the problems of the art community is that they are not good at thinking of the economy in the same way as economists do. We fall short of separating out the ticket income of an event vs. the greater good. When we think about he way the artists/art sector does it, compared to the movie industry, say in terms of the value lost by piracy, then we see artists are at a disadvantage because artists can't talk about it in the same terms. BBC has a problem with the 'public interest' test, justifying what they are doing in terms that are richer than measurable sales. What industry says is that we are defending the rights of artists, but economists show that 90% of the income goes to 10% of the artists, and 10% of the money goes to the other 90% of the artists. But it's hard, or impossible, to get figures from the industry, from the collecting societies. We need more data about what goes to artists. DACS, wanted to administer the Artist Resale Right, Droit de Suite, where artists get money for the sales of their works from collector to collector. But DACS spends 25% of their earnings on staff salaries, regardless of how much they collect so if their income doubles so does their spendings on their staff. Enormous need for more transparency. Money collected goes to very small % of the artists - sorts of a winner takes all scenario. One data set which was released by the music industry before digitisation, about 10-15 years old, shows poor distribution of money to artists. Not only do you have to prove that you've undertaken certain types of cultural and social benefits, but also economic benefits in order to get funding. Arts Council just fired their heads of the different art forms departments. So they are going down a route where you either are working towards 'social inclusion' or 'creative industries'. That's the rationale of public funding now. Used to be almost Dickensian idea that you strengthen culture by providing arms-length funding; but we're not in this much more neo-liberal moment where culture is seen as instrumental in what it can deliver to the GDP, which is partly based on the concepts of intellectual property. So was copyright originated on behalf of and for the benefit of individuals? It's difficult to say, as copyright has a complex history, but it only makes sense to think of it with the idea of capitalism, free capitalise modes of production. So it's pretty much always been a constellation of individuals and business interests who sought copyright. This can be said that this is really all just business, and the starving author in the garret is a rhetorical structure through which businesses acquire proprietary interests. That doesn't fit with the historical data, as there are many cases where individuals are strongly pursuing their own interests, and the legitimate interests of the businesses that support them. Usually people start off with 1710 an the Statute of Anne, which was the first time there was a statute giving proprietary rights for the printing of books. It was largely promoted by the business interests - book sellers. 1735 act to protect engravings, sought by Hogarth and seven of his friends. Using the analogy of the booksellers. 1798 protection of sculptures, sought by George Garrard. 19th C, act to protect drama. 1842, extended copyright, combination of printing and authorial interests, e.g. Wordsworth. There is a debate about relationship between copyright and romantic discourse, rhetoric about the romantic literary genius. 1862, copyright protects artists who paint or draw, petitioned for by artists and the Royal Society of Arts. Lots of artists were complaining of harms to their moral interest, e.g. works being cut up or disseminated in poor copies. Were some economic interests - photography was very expensive. Commercial publishing of engravings and these publishers paying huge amounts to the artists to do so. So it has always been mixed, always the individuals and the businesses. Whether copyright is now being used against individuals is another question. Historically, copyright was used against mass producers, e.g. other publishers. Now what's prompted copyright to be used against individuals is digitisation and copying can take place in private. There is much force in a criticism of copyright that starts with authors, and rather than abandoning authorship it seems that authors can be used as a mechanism for pointing out their internal relationship to copyright, they can be used to critique copyright. Would be a nice goal to end today to come to a general agreement about the least amount of copyright we really need. Would their be a minimum requirement that would allow most of the interests to succeed. One of the reasons that the collecting societies are not transparent is because there is a discrepancy between what's paid to classical to pop artists and when the pop artists find out they will either withdraw or demand higher royalties. Large interests, the EMIs of this world, will always talk about the individual, but we realise that the interests are focused on the most profitable people. History of copyright we have heard is horizontal expansion to different types of subject matter, but other types of expansion include control over distribution. The vast expansion from just controlling copying has been more recent, and would it be true to still say that that expansion was a mix of individual and corporate? Can't just look at what is covered, but must look at what's called vertical expansion too. Even thought these corporations are more interested in their most successful clients, the expectations that they will make money out of small number of people means they will. What do we do about the funding of artists? The music industry will always justify that they need extension because they need more money to invest in new acts. When you look back to 17th C, the size of the businesses are far far smaller than what we have now. We have huge corporate multinational entities. Ability of large corporations to grow is based on regulation, and we have regulations to limit the threat of businesses to governmental authority. Since WWII we've had businesses crossing international borders. Perception that copyright is used against individuals because there's greater restriction on what acts can be done. Constellation of forces have expanded copyright in terms of what acts are included, e.g. what reproduction is in a digital world. Other things at work are European harmonisation, which means we've all been given everybody else's rights, and so local regimes are irrelevant and Europe has forced a set of rights on all European countries and, through treaties, through the rest of the world. These interests work happily alongside business. Does law serve to assist the GDP. Law serves the interests of the polity, and so if the interests of the polity are also the interests of the GDP then law then serves it. But law should follow the polity. It may be the wrong thing to lobby against copyright law, because you should be looking beyond that. But it's too big of a burden so say that we have to change the law and the GDP. Free software is an interesting model to look at. 90% of servers run free software, and it's obviously based on copyright but there's a ninja move that uses copyright to ensure it's openness. How might this model be used in, say, pharmaceuticals. Research which has guaranteed free results, so that developing countries can then legally manufacture generic drugs. Begs the question, is protection the best way to promote innovation? Have to be careful about believing the business's claims about what, say, extension is going to allow businesses to do. Need to be careful of the language we use because we're using their language, the exploiters, the corporation. Need to more closely examine our own relationship to copyright. Copyright is about reproduction of objects, so tends to be best when applied to a finished product. Part of what digitisation has done is throw up the question of whether people are willing to pay for the object. Free software has to make some money for the people who make it, and it does so at the moment through repackaging and turning it into a physical entity (on a CD, say). Think about artworks not as finished products but more like a process to which that free software income generation model can be applied. Two arguments, there is a fallacious argument to use past income from existing works to find new people, but also prospective income. Copyright is so long you might say that's not the case. But the prospect of making money is how this work. So saying how long copyright is doesn't affect prospective investment is not the case, because obviously it does. It's how long you will be able to exploit the work. Authorship, creativity and originality, thought of within art as being mystifying, so within art history it's no longer common, or acceptable in some circles, to think of an artist as having an original idea. What's the range of sources for that idea? The myth that Picasso stealing forms of portraiture from African culture counts as an original act. Not just within art history, but also within art practice we're aware that we're drawing on other things, we're in communication with other people. There's a mystification, this idea that the artists is the author of the works they produce, but we're always looking at co-production. There is a history of artists working in resistance to those concepts. Appropriation i.e. selecting things, montage, quotation, dialogue. Co-operation, 'Acid Brass' project, getting brass bands to play acid house music, good model of how an artist can be important in the process, but not be involved in the process of making it work (i.e. not playing the instruments or doing the transcription). Creativity within art emerges out of a secularisation of art, so instead of being inspired, which really means that God is the creator of this work, so creativity comes in when the artist has usurped God, and the artist is the God-like figure, creating something out of nothing. Metaphysical approach to cultural production. This is objectionable. When we speak about the industry we also have to talk about piracy, and should focus on commercial piracy. Spend quite a bit of money investigating pirates, prosecute them and put them in prison. It's quite a burden on our system and a worse burden on poorer countries who are forced by TRIPs to do this. With globalisation comes illegal trades. So we should think about what's actually really harmful to society - trafficking people, arms, black money, etc. Is copyright really that harmful? Can we find other ways to recompense artists. Our society spends a lot of money on pursuing copyright infringement but need to be spending that money investigating the real harms, e.g. investigating black money. Copyright holders are like children demanding more and more and more. But if you give up the copyright system you won't have pirates any more. Pirates make considerable investments in their reproduction plants, but if you can reproduce it all yourself anyway, then the pirates won't have any market. Even if there is no copyright, publishers would still have a competitive advantage because they would still be first to market with their books. We need instead to be focusing on the real harm. Ruby on Rails, allows you to write code without actually writing any code yourself, so even though the application you write may be unique, much of the code you use to write is not, it's pre-written by the people who created the Rails framework. Concept of authorship getting very tenuous. Composition. Descriptions of creativity. Rhetorical idea came from ancient theories of rhetorical, that you take various aspects of other people's speeches, and you make an inventory of these ideas, and you create an 'invention'. That got transferred to art, notions from oratory and rhetoric, and artists were admired for their ability to compose. That's to do with the individualised labour. Cognitive process, get visual information stimulus, you compose it in your head, and you bring it out in your painting or whatever. Important in the concept of authorship. Since early part of 20th C, apply structuralism to study of images and have come to a different idea of what creativity is which is based on relational issues, to do with not what goes on inside the head but what goes on in between individuals, and this is everywhere, including within the theory of the firm. Derrider the meaning of the word does not occur within the word but in their relationship with each other. Process descriptions of art, copyright has a problem with that, so we have the idea that creativity is part of a relational process that is ongoing. This is a problem for copyright because that's in notions of fixity, of invention, of a fixed point in time. Point is that ideas of originality and authorship have their roots in rhetoric. Creativity as process has it's roots in relational theory. If you change the description of the composition you also change the author and the audience. So end up with different paradigms. So illustrators don't have this same training, so they still have the rhetorical notions of authorship so they want to be authors. Is economics the one and only totalising discourse? Has it taken over from aesthetics? Movement from the situation where the individual artist is working on an individual work of art is being replaced by the concept of the artist as part of a wider process. Curation. We are all becoming curators of culture, bringing together different pieces of art as we see fit. Concepts of montage and assemblage are also interesting. For some artists, copyright is not relevant, but the institutions of art retain traditional views. When you are not interested in producing tradable objects, copyright is not of interested, but what are the method of remuneration? The added value you might have in showing art in these institutions, need a system that has more security. What is copyright, what are the objects that are being produced? Artists selling limited editions of DVDs, in two editions, one for private use and one with the right to show in public for galleries etc. Applies to sculpture, with casts, you have editions, and with prints. Need to ensure we don't over-complicate it. Instead of copyright have a system of trust and informal work? Appearance fees. Value of artworks. Different types of value: social, cultural, commercial. Most of copyright is about commercial value. Different collaborators value work in different ways, and have different reasons for being involved. Artists have to package their work in such a way as it has both social and financial value. But most interest is in cultural value, which can get overlooked, but can use the social and financial value to manipulate the situation so that can create a discussion of cultural value. How does copyright come into cultural value? Copyright happens when you have someone else doing what you're doing and you're not acknowledged. Economists understanding that they can't extend their economics to the rest of the planet in this post-colonial situation. But of 6 billion people on the planet, 2 billion participate in the formal money economy. What's the political leverage being used to bring these people into the market, and TRIPs is a powerful tool to apply. What is the marginal figure in the western world, the artist, is becoming an important political tool. Important in 3rd world with farming, mobile phone licences, the same laws that govern the formal economy in London are being applied without any changes to these other contexts to establish the roots whereby the rest of the world can be brought into this major economy. Big political issue to be fought. Three economies: World Banks; traditional economy and invisible economy and it's in this latter economy that a lot of cultural works; and a natural economy of natural resources. In developing countries which have signed TRIPs end up with a bizarre mismatch between the local economy (can't get the open sewers fixed) and the IP economy where they have to have patent offices etc. Are some people in denial about the kind of environment artists inhabit, where it is really all about brand and name and reputation, and so highly individualist. There is an issue that there is an intersection of rights - so the rights holder's rights to prevent copying intersects with the users right to copy. So you have to make a trade-off. These statements remind us of the reality that we're in and a resistance of that is a fantasy. But maybe that copyright sign on the Acid Brass CD is also a denial, because it's a denial of the social production of that work. Because the reorganisation of authorship of group works until there is a single author is a denial of reality. But it's possibly to be in a system and against the system at the same time. You can't accuse workers within a capitalist system of being capitalists. But name is not just about ownership of your work, it can also attaches traits associated with you to your reputation. Does brand development of the name depend on copyright? Was a time when collaboration was highly problematic in academia, for example. So at one point people had to be assessed for their degree individually, but now it is possible to work collaboratively through your degree and be assessed collaboratively. Balances. Defences and attacks with copyright. Now, is copyright so oppressive, or can we foresee that it will be so extensive that it will prevent a dialogue? Many compositions are stylistic, not original. Notion of rhetoric as that there were things that were in the public domain that you could draw on and combine which can then be copyrighted. Before copyright there were examples of copying that were problematic, because a copy of a copy of a copy is a bad copy. The objection to copying, apart from copyright. We are talking about the idea of the author as a brand. The author is a part of the structure of discourse, that you create trust in the author rather than having to reassess every work by the same person individually. Difficulty of collaboration in art schools is as much about the examination system as problems with collaboration. We are individual animals within the species, but authorship is not a fact of the individual it's a property of some individuals, so all authors are only authors by the authority of the society. The enigma of Pollock of being this great genius, is that Pollock represents a lot of other people. He's singled out of a massive cultural shift as being the person who represents him, the New York School. Individuals is a western idea and in some cultures there's a collectivity instead. Particularly in the Pollock issue, that's part of the American Dream, it's cultural about the rise of the individual to success. Not the same in Paris. But if the artist isn't the author, how do we know what an artist is? Who is it that some of us around this table are artists and some of us are not. Artists are determined by themselves, they are defined by society. There's an economy of these terms and so we're not looking at a coherent set of qualities, like 'creativity' or 'originality' or 'sets projects up'. There isn't a given stable identifiable set of traits and we would have to interrogate the culture about that. Or is it more like 'who's a plumber?'. Working with images, and training, defines an artist. It's a profession. Also happens retrospectively, e.g. the graphic artist who becomes ratified as an artists later on. Artist is institution because the institution gives the authority, and artists are implicit in this by not being able to define who they are. They are getting better returns for their own mythification, and this keeps the status quo happy. Artists should be instrumentalised to end this. Modern artist as an individual as in the tradition of individuals of kings and popes and great artists of the past. 3D printing and the democratisation of creation. Even sculpture will not be exempt from the digital age - people are already creating 3D shapes, sculptures, in Second Life and having them printed using a 3D printer into a model of their character. Division between asserting copyright and asserting authorship, and authorisation of the artist. Is this a circular process? Is copyright itself a form of authorisation of the artist? Confusion around the right to authorise reproduction, and the right to assert control of your work. When you use CC licence you still require attribution, but you don't necessarily require remuneration. Any right you have in this world interests with someone else's rights. There was a discussion of the CC list, someone had a picture of their grandparents getting off the Windrush, and they said they wanted to use the CC licence, but was worried about the image being used by things like the BNP. These rights create real transaction costs that have real effects. Should we even have a right to integrity?

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October 24, 2006 | Suw Charman Anderson

Future of Copyright: Roundtable 1 - Artists and copyright

Last week I went to a series of sessions run by Birkbeck, the AHRC New Directions in Copyright Network, and the Public Programmes Department of the Tate Modern, entitled Roundtable Discussions on the Future of Copyright and the Regulation of Creative Practice. Here are my notes. The aim for these sessions is to have a deep discussion of copyright and to try to find new ways to think of creation and copyright. There's a variety of people here, from artists, NGOs, think tanks, to academics, and it's a very cross-disciplinary group so that we can hopefully find some interesting overlaps and contrasts. There are nearly 20 of us here, so my notes may not make a distinction between speakers, for which my apologies, as everyone is encouraged to speak at every session. There's one roundtable today, and two tomorrow. Roundtable 1: Creativity, how artists practice, and social creativity. Jaime was one of the co-organisers of an event for the Arts Council on ways of working, strategies within what artists do and the mismatch of that and what artists do. But a policy intervention by the Arts Council said they should create tool kits to help artists. So the event ended up with surgeries so artists to talk to lawyers, so instead of having a discussion about law and copyright and artistic practice, it turned into a big case study. Problem was that they saw regulation as the foreground and everything else slot into that, so don't want to look at artists as whether they are legal. Another time he tested Creative Commons licences against artists. Got 10 artists to talk about their work, and it became clear that the way they practised their art was far more complex than anyone had imagined, and the law has difficulty with this. Also, there's a different in motivation. Economists and lawyers think that artists create art because of the incentives (money), but in fact again it's more complex than that. IP is being forced into the forefront of economic thinking because of the idea of the 'knowledge economy', the way that developed countries compete on IP rather than access to labour and materials. Have a notion that something that was cultural has been overlain by copyright as a notion, defined by economic, export trade priorities. When you look at he relationship between creativity and innovation there are crucial differences. Adam Singer once said he didn't think he was in the business of protecting copyright or the business models of collecting societies but in the business of protecting his customer's interests. Increasing sense see businesses seeing instability in copyright as a good thing so that they can override user rights using technology. No longer simple division between pro- and anti- camps. What proportion of copyright is owned by multinational corporations? You couldn't find that figure because copyright is automatic so there's no registration system. So there may be copyright you think of in a commercial context like advertising billboard, and then there may be other circumstances where the individual keeps it. You don't have to state it, it automatically kicks in. Interested in the demographic. If there's going to be a policy consequence, there's no point looking at politicising this if at the end of the day there's no means of enforcing. iPod maths don't work out, because they have a larger capacity than people can afford to fill with legally purchased music, so have to think about how copyright actually works. Is creative practice incentivised by copyright? No, it's been restrictive. Most artists ignores the rules and so long it stays within civil society it doesn't really matter. Jamie King tells a story of how he had footage of activists doing things, and was putting it up on a server online, but Reuters wanted the footage and wanted them to sign away copyright. Reuters didn't care that it was going to be online elsewhere too, but they wanted protection from their peers, e.g. the BBC. More and more methods for making small inventories valuable, e.g. print on demand. Difference of being on the constituted side, than the pre- or unconstituted side where you can play fast and loose with copyright. So YouTube was not worth suing when they were two guys in a garage, but soon as Google bought them they became a target. Google make money from advertising on other people's copyrighted material and those people are going to want a share of the money. Deibold case, distributing information on e-voting, but copyright was used as a blunt instrument to stop people spreading the information. Scientology is another example. YouTube/MySpace is a form of collage, or curation, taking material from one place, doing something with it that's expressing their personalities, and that therefore they have a right. How creative is it? There is a human rights case to be fought about freedom of expression. Fair dealing is useless because it's always found in favour of the prosecution. Someone needs to make the argument that this is artistic expression. Christian ?? on show at Tate Modern, who's taken moments of film music in order to form a new piece, but none of it's cleared. He doesn't like using stuff that's legal. But that's the point now - normally the case that's made is that the visual arts don't sue because there's so little money at stake, but Hollywood or the music industry there is money at stake. But the counterargument is that people are suing when there's no money at stake, such as Disney suing nurseries for reproducing Whinnie the Pooh. But Disney, etc., are trying to make their material culturally ubiquitous yet still denying people access to fundamental parts of their own culture, stopping people interacting with them. Another example, Newcastle Utd. claiming that a recording of people singing at a game was their copyright. Cultural imagery as a form of ideological power. Increasing numbers of people are interfering with the cultural mass without action, because they can't be identified, or because it's not worth it. Billboard Liberation Front, catalogue of their lawsuits. How may people have paid for their copy of Photoshop? Adobe don't act on illegal copies for individuals because they see them as a way to get people hooked on their product, and when they are in a business setting they will buy the licences because they dare not. Same with Wordperfect and Microsoft. Contradiction between when copying is 'acceptable' and when it's not. Disney insisting on rights even in ludicrous cases, which leads to negative publicity, but to some extent the corporation needs to defend their rights on certain images if they don't want to disappear? If it was a trademark, yes. Creative Commons, for example, pursue their trademark very vigourously. So people who've been working for CC for years then end up with a cease-and-desist letter. But does copyright set up a line that people can transgress? Is that a positive thing? Do you need to have things to transgress? To have a multinational corporation decide what can be transgressed. It's framed like school uniform - so long as you wear your tie loose you can be a bit of a rebel, and schools do that as a way to stop you destroying your school. But to use copyright to encourage transgression trivialises it. In academia it's all about reputation and attribution, so it's moral rights rather than copyright. You're not selling it so you don't care so much about copyright (although the journals do). Universities go on about IP but academics don't earn their income that way, so they don't care. So someone, somewhere has decided that artists earn their money off copyright. So academics get salaries but artists don't. Moral rights - can someone interfere with your artistic works? Integrity. If you disagree with a sculpture, it should not be tampered with. There's an idea that the arbiter of ethical issues is going to be copyright. Unique artworks are generally not defended by copyright because it's not needed. But it's mass culture that gets defended. Complex nexus of funding and support structures in the visual arts. So visual arts has developed creative strategies that are not bound to copyright. Questions of the unique work of art and the reproducible works of art, that only exist in reproduction. That latter case is where copyright comes in. Repeat of idea isn't covered. But there is appropriation, so can sue for that instead. Myth of originality. This does not exist in jazz because you're constantly quoting other musicians and playing with them, and it's always been like that, more sophisticated. Networkedness of everyday life is illustrating our dependence on each other and those relational struts are becoming more obvious because of the connectedness, but any discourse that seeks to preserve the fortress mentality becomes bourgeois in actual fact because it is seeking to preserve old property relations. Artists are not concerned with maintaining that model, but maybe the market is? Art world is fundamentally individualists. Critique of originality, linked to genius, and genius is patriarchal, and copyright is a way of rarifying patriarchal constructs. How important is originality to copyright? What about imitation? In some places in the world imitation is seen as valuable, and imitation is the last thing we want to do in our western culture, but it used to be that you were really praised when you were imitated. History of western art is based on imitation and emulation, and lots of patents were based on taking things apart and improving them. Learning to draw from casts, then learning to draw from life, and then eventually come to learn how to hide your influences. Hasn't been a story of complete originality. What about copyright in a wiki in a highly collaborative environment where it can be impossible to identify editors only identified by an IP address? Would be possible to ask everyone to assign rights to an individual who can then decide what to do with them, but that's a voluntary solution. Film making, where some people get to assert copyright but others don't. Work for hire. Generation was by the photographer but the editor is merely modifying. Rights distributed according to some sort of social decision. Law has decided who gets rights, but it's up to you to decide how much you're going to sell them for. Copyright can make some important symbolic statements. Law creates rights, and those rights are transmissible and sometimes those transmissions are laid down in law, again e.g. work for hire. Spandau Ballet - Gary Kemp claimed to be sole author of the songs, but Hadley and the others were claiming co-authorship, which affects royalty income, from airplay etc. Issue was whether Hadley, the drummer etc, were creators. Lots of musicological evidence, yet the judge said that the person who wrote the sax solo was just a performer, as the sax is an instrument associated with jazz and improvisation. Judge drew on musicological evidence that emphasised relationship between composer and performer in classical music, and also found a fit within the copyright schema that has one position for authors and one for performers. It's often economic muscle that helps shape copyright, but the existing copyright schema defines who's got the economic muscle. How does the notion of the artist, particularly the notion of the starving artist in the garret, fit together with the cultural industries? Creativity that occurs between people and not in the mind the individual. Ideas of creativity around open source software. How capable is the individual of creating work in isolation? There's an idea that the individual creates because their work is protected and because they own rights. This is being disrupted by the internet. Two vectors, one that it's difficult to regulate ideas because they slip out of your grasp and replicate, and the more there is of something the cheaper it becomes so you have a problem selling things that keep multiplying, spells a massive problem for concept of ideas as property. Digitality in the network form, the connectedness of our ideas become more and more obvious. Whilst in the past, footnotes may link essays, but you'd have to go and chase it down time and again, but now all the links are already there and it's easy to follow them. So it's obvious that every work is connected to every other work temporally and asynchronously. Discussion indicates that copyright is assumed to be about creativity, and that's largely because of the way that the concept is appropriated. But copyright is much more commercial than that, and it's not necessarily about creating new knowledge, but new forms and those new forms are the value. Not compatible with networked creativity because that would be uncommercial it's about stopping that flow to you can create value. The subject somehow has to be the centre of copyright, but history doesn't support the idea of a consistent subject. Copyright creates an accountability. Are we coming to the end of a period, and are we arguing about how the lose ends tie up or are we starting something new? Two uses of copyright: to control usage; to identify people, maybe moral rights. But is money integral to copyright? It clearly is, you need to fund people some how, so where is that money coming from? Will people be funded to create? Will it be their job? When you discuss the relationship between creativity and copyright are you barking up the wrong tree? Lots of issues. Frustrating to try and think through them all at the same time. Doesn't help us to talk about creativity. Artists don't feel that what they do is creative, it's not about creativity. So no point asking 'will money help you be creative', because I don't want to be creative. Copyright imposes some sort of assumptions on you that you might not want; might not want a property relationship between art and the individual. So copyright isn't helping with anything that's done. Already, we don't think about subject in the way copyright wants us to think about subject. Tension between artists and institution. Artists aren't interested in having that relationship with their work, thinking of it as original copyrighted ideas. But the institutions are, and it's all for them about ownership. People making the work aren't interested but those who own it are. Remind us all how old this critique is. Long history of where our idea of the self comes from and how stupid it is. The idea of inwardness is so modern, but try being an individual now without inwardness, but the idea of the individual is ridiculous. Ideas were discussed already in the 50s. We're dealing with the end of an era but keep dealing with it over and over and over. Creative Rights Alliance, wanted stronger copyright, wanted stronger copyright and ownership, wanted the legal system to interfere so that they couldn't give away their rights in perpetuity. Copyright didn't protect blues singers. The point is well made. So some young artists trade works speculatively in case one of them is successful. As an artist you are part of production of society, so want to be paid for that, rather than think about selling the rights to something. Copyright doesn't touch a lot of artists in their daily practice. We are talking about accepting copyright as something worth accepting, and maybe we shouldn't. No shame in wanting to earn money. Illustrators desperate to become authors because they see themselves as exploited, so they see copyright as a protection. Copyright never had to be the reason why anyone did anything. People do all these things, and always have, not incentivised by copyright. Technological argument that copyright as it is cannot survive the innate reproducibility of digital files and the capacity to instantly distribute them across the network. At WIPO, there are people on the other side that think this is a problem too, but they think they can remedy these things. But the film and music industries may break a lot of other things in our society at the same time. Important point of ideology. "I want to be paid for the work I want to do..." but why? Understand why, but who will pay, and is it a good allocation of resources? Has to be brutal supply and demand. If artists didn't work for nothing, then people would have to pay. But a lot of artists know nothing about copyright. They don't really even know they have rights or what they are until they are faced with a contract to sign them away, and at that point it doesn't matter because they "weren't using them anyway". History shows that copyright does have a capacity to accommodate different notions of creativity. Much of copyright isn't to do with digital forms. There will be some regime outside of the digital environment. There are whole swathes of cultural production that will not be affected by digital technology - plays and theatre and nightclubs. But the question is not 'will copyright suffice' but is it good enough? Do we want it to suffice? If copyright is robbing the public domain, if it is a control mechanism of huge corporations then do we want it? So can we make a business model which will work outside the system? If you take away the copyright system, will the incentive to make huge blockbusters disappear? Need a level playing field where there is no control for anyone, because in that situation artists can relate to audiences and there is a good change audiences will pay for the work. The copyright industries are heading for a contract law system. Argument is not about technology, it's about control mechanism. Contract law and employment law are being used as blunt instrument to control creativity by forcing people to give up their rights. Designers, for example, being forced to sign contracts - not just work for hire but also freelance - that strip them of their rights so they can't even show their own work in their own portfolio. Too easy to focus on copiability when talking about contract law, but also have to think about labour markets. So can use network theory in different ways, e.g. to strip people of their rights. So work about patents and how to award patents, for example, can be used to ensure that employees have no rights over their creative works. Creating exploitative apparatus. Online you have reproducibility and distribution in one place. You only need one person with a bit torrent server or twenty, you can satisfy world demand for a movie. Barriers to entry much lower to be an infringer. Discontinuity between having to set up a factory to create pirate DVDs and what's needed to infringe digitally. END Debate was a bit fractured, and not sure we really reached any conclusions but it was interesting nonetheless.

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October 12, 2006 | Suw Charman Anderson

ORG seeks full-time Executive Director

The Open Rights Group has grown astonishingly quickly over the last year, thanks to the hard work of the Board, the Advisory Council, our volunteers and part-time staff. Indeed, things have grown so fast that it's now time to recruit a full-time Executive Director who will be able to get organised some of the things that I've not had time to do, such as find us a new office! I am unfortunately not able to take on this full-time role, but I am confident that we will be able to recruit someone who can pick up the torch and keep ORG moving. I will be staying with ORG as a Board member, however, so that I can help the new Executive Director to settle in and continue to help steer the organisation in the right direction. Over the last year, ORG has been a real labour of love for me, and I am very much looking forward to expanding the team and bringing on board some new blood. Applications are open to everyone. If you are interested, then please apply, and please do forward this ad to anyone you think might be suitable. We will be advertising in the press and in volunteer sector publications, but we'd like to spread the net far and wide so that we can get the best applicants. Job title: Executive Director Organisation: The Open Rights Group Location: London/Online (must have home office) Salary: Neg Type: Full-time Start date: ASAP Closing Date for Applications: 13 November 2006. The Open Rights Group is a new and fast-growing NGO focused on raising awareness of issues such as privacy, identity, data protection, access to knowledge and copyright reform. We aim to improve both understanding and policy in digital rights matters that affect both businesses and the public. We are funded by small grants and donations from supporters. Our activities include organising campaigns, lobbying government, and helping journalists find experts and alternative voices for stories. ORG now needs a full time Executive Director (ED) to build our supporter numbers and expand our activities. The ED reports to the ORG Board, and has the support of an Advisory Council of digital rights experts. The ED will be a passionate, professional and decisive self-starter who can prioritise a substantial work load, manage staff, lead volunteers and talk eloquently to the media. She/he will be responsible for: * Maintaining a sustainable organisation in terms of numbers of members and staff, participation, income, public profile and reputation. * Preparing and executing ORG's strategy based on a balance of media work and policy influence. * Increasing the public's understanding of, and engagement with, a range of digital rights issues. Desired skills and experiences include: * Management experience, preferably for a NGO/not-for-profit or start-up. * Expertise, or the willingness to acquire expertise across the full range of digital rights issues. * Media, public communications and campaigning work. * Knowledge of law or public affairs strongly valued. * Experience of internet-based communications and management tools (including Wordpress, MediaWiki and Socialtext) highly beneficial. We have a more detailed job spec if you require more information. Please send your CV in PDF format only to Michael Holloway by 13 November 2006.

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October 12, 2006 | Suw Charman Anderson

Parliament and the Internet: William Dutton

William Dutton, Director of the Oxford Internet Institute, Social dynamics of the internet This conference is focused on the future, and we wanted it to be evidence based, so thought to identify some patterns and themes in internet use, which are shaping the future of this emerging cyber-infrastructure. Who uses the internet? How to people use it? What level of trust do people place in the internet, and why? What at the key implications? Oxford Internet Surveys (OxIS) done in 2003 and 2005, going out again in 2007 cross-sectional surveys, i.e. new section of people each time. vs panels England, Scotland, Wales Face to face, interviews Response rate: 66% in 03 and 72% in 05. Part of World Internet Projects, data put in pot with 22 other nations. Who uses the internet? Who does not? Internet has become central in 2001, people thought the net was 'new'. Even in 01 people thought it was a fad. But 60% of britains are online. Was a new tech, but now has become an invisible infrastructure to many homes. It's being taken for granted now. New stage of development where it's central, and a cyber-infrastructure. UK is doing well, but not as well as many Scandinavian countries, but digital divide is an important issue, particularly in countries like China where only 7% are online. Important to realise that diffusion of the internet has plateau'd at 60%, and this has happened in other countries. Bumps up against limit, such as number of PCs in the home. Getting to the next level of diffusion is important. Broadband has diffused rapidly, so 70% of households with the internet are broadband, and soon that will be 100%. So this plateau is more significant because broadband allows increasing integration into every day life, but those without internet get no benefit of that. Education is related to having the internet. Note - 'internet use' means anywhere, home, country or school, but the prime place to use it is at home. Education, income related to use of internet. Access via mobile devices also linked to income. Thus reinforces existing social divides. Richer people have more access. Not just about digital divide, but also digital choice. People who gamble on line: younger men with full time jobs, i.e. risk-taking demographics. In a way, early internet use is a risk-taking activity, so in a way it's a choice. Higher income, job, educated are more likely to take the risk of going online. Even in households with broadband, some people choose not to use the internet when it's there. Non-users don't use because they're not interested. Building infrastructure is one thing, but building interest is another. Cannot explain age patterns via socio-economic divides. So all kids use the internet, but only 30% of retirees use the internet. Younger people think the internet is more interesting and important than older people. This is a worldwide pattern. Age is more important than gender divides. Factors: - cohort, what tech was there when you were growing up - life stage - ageing, e.g. eyesight, memory, stiffer fingers - design, computer industry not targeting older people Kids use computers in three or more locations: home, friends house, school, cafe, etc. Older people use it in one location. People who have 'always on' broadband capability, older people tend to actually turn it off, younger people leave it on all time. Again, a generational issue. Multitasking, as you get older it's harder to multitask, but almost all computer use is multitasking. How do people use the internet? Gambling was the lowest use of the internet, but checking email and product information online was the biggest. But lots of heterogeneity. Factors Entertainment, captures most of the greatest degree of variance Information Banking Learning, looking up words or facts Communication, email, IM etc. one of the most common things we do, but doesn't discriminate among people Planning, e.g. travel plans. Communication - 92% use email. Entertainment - more divided, e.g. 50% download music, but the rest don't. Those with higher income use the net more functionality to access information; the more expertise you have the more you use it for information. Oldest and youngest don't use it for getting information. Idea of a knowledge society or information society is wrong - just because kids use the net doesn't mean they are accessing information. Use of information to get health info is mainly people of a working age. Younger people use the internet for entertainment, but not for info. Slight uptick in oldest age group. Gender divides, males u se the internet more for entertainment than female, who use it more for information. Internet does not realise its potential for UGC. Very low proportion, 18% or less, use the net for blogging, pictures, discussion/meassage board, but this was 2005. Maybe more now. 5% keep a blog. Most people use the internet passively, not actively. Do people trust the internet? Is trust declining? Two issues of trust. - Net confidence: reliability f information on the net, confidence in people running the net, people you can communicate with on the net. - Net risks: perceived risks ot privacy, security of information, accurately judging quality of products. Non-users say they don't know if the net is reliable. But users have an opinion. Non-users are most sceptical, but users and past users are more positive about the reliability. Internet is an experience technology. People have to experience it to understand it. More experienced users have different attitudes. Not the case that people who have trust in the internet do not necessarily trust all over tech. Broadband users people trust internet about as much as TV, but more than newspapers. More experienced and more educated people are, more people trust the net. Bad experiences. Many people have had bad experiences, and the more bad experiences you have the less you trust the internet. So more experience = trust; back experience = loss of trust, so a bit of an arms race there to see which will win. People think the internet is more reliable in 2005 than in 2003. And have more confidence in the people they meet, and in ISPs. People trust people they meet online a bit less than other people from your country, but it's gone up since 03. People perceive it to be more powerful now, and people who've not used the internet now are less likely to be sceptical and more likely to say they don't know. Different patterns of use. More experienced people use the net differently to beginners with less than 1 year's experience. So what? Lots of opinions as to what all this means. Utopian vs dystopian, substitution, dual effects, reinforcement, reconfiguring access. Internet has a transformative impact that's not deterministic in the long run. Internet reconfigures access, e.g. where would you go first if looking for information on, an MP... people first go to the internet. Taxes, second place, planning a journey, first place, for books, visit a website is second, local schools, internet is major source of information Changing how we go about getting information. More dramatic if you pull out age groups. Younger people, 56% would go to the internet, 8% would not. Also changes what you read, what information you get. Asked what newspapers you read online that you don't read offline? 20% of users find info online they don't find in print. 20% met people or made friends online and this is a pre-social networking phenomenon. People meet these people offline too. Also make friends online that they never meet. As people get more skills, they meet more people online. People who use the net more meet more people. So as it becomes a more central infrastructure we'll see more people meting more people online. And this refiguring will change the way that people learn - more people having more access to more learning. Politics - how will politicians react to bloggers? Across every sector, it's changing not just the way we do things but also the outcome. Major challenges: - addressing socio-economic digital divides - countering digital choice - focus on patterns of consumption and production as well as adoption - creating and maintaining a learned level of trust in an experience technology - strategically reconfiguring access to you and the world

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October 12, 2006 | Suw Charman Anderson

Parliament and the Internet: Jon Gisby, Yahoo!

In UK: 26 million people online 20 billion minutes a month >20% media consumption time But big disparity in behaviour: for one part of the day it's the major source of news and entertainment. In some households, the internet is the dominant entertainment medium in the evening too. Total advertising market growth is 2.5%, but internet advertising growth is 65%. Ad revenue, internet is half the size of commercial TV in terms of size. For subscription revenue is about half what the UK is paying for pay TV. Numbers growing. Biggest number of people search. Biggest time spent is on shopping. Biggest amount of time per person is gaming. Communities and email are next biggest time spent. Big explosion is 'user generated content', the ability to participate, to share. Not about one-to-many, but about one-to-one and many-to-many. What does the UK long tail look like for brands? (Note: sites, not brands.) Top sites Long tail is enormous. Top sites are in the 20 million people, but the 5000th is 25,000 people (although margins of error quite large in long take stats). Lots of the top sites are media sites: BBC, Lloyds, Tesco, HSBC, Barclays, Miniclip, Blue Yonder, Guardian. Public sector don't do too badly, MI5 is 602th, NHS is 44th, Dundee and Leeds must be doing something interesting because they are engaging 100,000s of people. Voluntary sector, millions of people a month going to those, although they start at Cancer Research 586th. Politics, pretty poor, House of Commons is 957th, next is TheyWorkForYou at 4177th, but the political parties are far further back, Labour at 5011th, Liberal Democrats at 5012th, Conservatives at 5207th. Ability to communicate with audiences is an opportunity. [I cut out the sales pitch regards Yahoo]] Moving from models where the power is in being the gatekeeper, to a model where there is limitless distribution and production in a global market. Scarcity of attention is the biggest problem they have. Lots of innovation and fluidity in business models. What's next? Broadband growth, competition and investment in services, media literacy. Policy needs to be evidence based, not based on our own behaviour and extrapolated but actually look at what people are doing. Needs to be future-focused. Some markets are moving at an amazing speed, so have to think about where things might end up, but if you extrapolate too far you might stumble. Open competition whilst managing transitions - many sectors are going through a transitional period and how we manage and incentivise whilst protecting what's public is a real challenge. Need the right policy mix, can give communities and individuals the tools to regulate themselves. Find the right balance between user empowerment and protection. If you try to control people, tell them too much what they can and can't do you'll get robust opinions, but need to balance this with a large part of the population who need protection. Tom Steinberg asked if it was within Yahoo!'s remit to build democratic tools such as those of MySociety, but Jon Gisby responds that they feel it more important to create all-purpose tools such as discussion groups that can be bent to the will of those interested in democracy.

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October 12, 2006 | Suw Charman Anderson

Parliament and the Internet: Plenary discussion round-up

Synopses of the discussions held earlier. Derek Wyatt MP, Considering the issue of internet governance Most of the world governing bodies came out of WWII. Are they appropriate for a 21st C globalised world? If we discuss how we look at he net, is where it is right now currently appropriate. Is WSIS the right place? Or should it be the WTA but the WTA is falling over. And the net can undermine them all anyway. WSIS in Tunisia was really about ICANN, and the discomfort with America's hold on it. But in places like the Middle East where they have no search in Arabic, they get understandably frustrated. [Google then corrects they have Google Arabic search and can do page translation although that's in beta. Some of the problems are that it's an intricate language to translate and potential for misunderstanding is great, so volunteers provide feedback on translation which is why they are beta.] Three areas to consider: regulatory centre which seems to work well; internet user behaviours like gambling and porn and which is the most appropriate way to deal with them; and non-internet issues like copyright and DRM. Old paradigm was the telcos were run by government and geographically constrained, but hankering by government to bring internet into that paradigm. That was part of the issue at WSIS, that politicians don't like not having control. Question about whether America is driving policy by default, e.g. by trying to turn the net into another TV channel, by clamping down on things like gambling. But would the UK be good at being a centre of light-touch regulation. Question: do we need a new body? Exiting organisations like G8 and UN are no good if they take 3 years to come up with a policy. It's like ISO taking so long to ratify standards that business have already adopted. Internet is going to be pervasive and need to look at socio-economic impacts. Internet Governance Forum, point is to get a bit closer to the users and create a multi-stakeholder discussion. Need to keep track of pace of change. How can any regulator hope to keep up? To manage the era we're in needs a fresh look at the institutions. In terms of child protection issues, for example, is getting credit card companies to work more closely with child protection. But some issues in the ether are going to be very hard to manage, and the idea that there's a quick fix at the UN is wrong, because it takes one rogue nation to make it impossible to enforce. The issue is to chase the money, because that's where you can have an impact. Around child porn and child safety, there should be controls. And in this country we've been very successful with the IWF. But what mechanisms could be used internationally, so that we can extend good practice in this country out to other countries. Following the money has been one way to deal with this but there's a range of issues we need to deal with. One of the disappointing things APIG found in the US is that they use the First Amendment to say 'We can't do anything' about child abuse. But can we do something? Every country accepts that child abuse is wrong. How you try to get organisations and countries to subscribe to dealing with it has to be done on a case by case basis. The solution that doesn't work is when you try centrally to resolve the issue because you're left still with an awful lot of questions that need to be addressed. It's an awareness raising issue, a following the money issue, it's tackling the crime. When people start coming aware of the things you can do, and the mechanisms you can do, you're in a better position to get people to sign up to address those issues. The US is actually starting to recognise that they can start doing things about it because they have a mechanism that allows them to do it. As a consequence of the voluntary approach to blocking child porn, America have now agreed to follow our system and IWF provide that data to US ISPs that aren't already getting it. The model is being picked up in many places, and interest in the IWF is outstripping their resources, e.g. China and Japan interested in it too, and trying to get head round self-regulation instead of legislation. Alun Michael MP, Security and eCrime Alun Michael has taken on chair in EURIM on ecrime. Today's session was short, just a taster of what will need to be talked about in developing parliamentary understanding. Tension between benefits of freedoms and opportunities of internet, and the vulnerabilities, security risks etc. Have gov't buildings secure if people are unsafe on the street; online equivalent of a fort, where the barons are secure but the peasants are at risk. What happened to HO strategy on ecrime? Need ecrime to be demystified, it's not virtual crime, but real crime with real victims and real damages. Is there a need for legislation on encryption? Is it reducing opportunity? Need education not awareness, because awareness is too skimpy. Have to give people knowledge and the tools to do something about it. Security and a false sense of security are not too far from each other. Too much security can be problematic at the moment. Going forward there are major issues, many industrial, some parliamentarian. People fear internet crime more than mugging or car crime, they think it's more likely to happen. 40% thought big online organisations should insure users against fraud. International co-operation, not just to take down the criminals but to follow the money and find allies. Take civil action where it's most effective. Need to get away from the idea that 'there ought to be a law about it'. Quote: Laws rarely prevent what they forbid. Need to look not just at what you can prosecute, but how can you create an environment where you can protect those who deserve it and make it hard to make money by illegal means. My question: Where do victims report ecrime? If someone steals a sword I've created in an online game which has real value, both in the game and offline, where do I report that? Local police are not going to be interested. Guy from Tiscali talking about getting intelligence about illegal operations, but had no one to report it to. Who deals with acting on this information? Every stakeholder needs to do what they can, but we need to know what that is. Need specialist departments for specialist crimes. Have set up help lines for children concerned for what's happening on the net. So crime that involves a financial action is different from one that results in a physical crime. Can't imagine we have one crime agency. Getting into the heart of the discussion that needs to take place. Need to have the police involved, along with industry people, because that's the only way to get a capacity for parliamentarians to take intelligent action. In terms of reporting, it's huge, and we need to be clear about what expectations are. With child abuse, there are important lessons to be learnt, (but not inappropriately translated to areas of crime where not appropriate), is about actual physical abuse. Success of partnership on child abuse, police would never have had resources to work on online child abuse on an investigative basis. But the take-down regime doesn't work for, say, fraud. Specialists on ecrime is tricky. Do you separate e-fraud from e-abuse from e-security? You need expertise but you need it linked into the mainstream, yet must not go to lowest common denominator. [Although I didn't hear an answer for exactly where I would report an ecrime, such as the theft of my virtual sword.] Mark Gracy, ISPs in the content driven era Short debate. But three key areas: - why should ISPs have mere conduit - perhaps they could do more - is mere conduit the only problem? Why do ISPs have mere conduit status. It drives innovation, social/economic development. without it, no protection for ISPs for content they can't control. If it was lost there'd be no innovation, no growth. If ISPs have to control traffic, then that's added cost and could fall back onto consumer. Should ISPs be doing more. Public expectation that perhaps they should. They appear to have the means and the technology to control traffic. ISPs should also be a bit more proactive in the messages they are giving out, how things work, what the implementations of some technologies actually means. Should be more responsible for their services, perhaps a need for an understanding of the issues. Has to be everybody involved, not just industry, but end users too. Ask infringers why they are infringing not just make assumptions. Is mere conduit the only problem? Other bits of legislation get in the way, on IP front, ISPs control the network and have the customers, and have to protect their customer data because of Data Protection act. So we need to look at other bits o legislation. Are ISPs hiding behind mere conduit and not doing things because they don't need to. Should they do more? But if they start saying 'we can do this for this area of this issue' that the floodgates might be opened. Implications. Are different attitudes across the world, even within the EU. Not enough time to debate in enough detail but still an argument that IPSs is that we do need mere conduit status, it's very important. Some people have issues around the way that ISPs approach types of content and they want something done. But everyone needs to be involved. MS guy talks about parental controls. Should ISPs take out insurance against the problems they face, the way that financial companies do against fraud. Can't be purist and say that ISPs have no responsibilities. If a postman knows there's a crime being committed, he has a moral and legal obligation to report it. But the ISP industry needs to be very careful with their language, if they say 'we are only a pipe', then people draw parallels with other conduits and say 'no, there are responsibilities'. If one as a network provider one takes legal advice, the advice has come back 'don't look too closely because if you do and you see things, you are liable'. If one wants to be a responsible provider, it's not a good position to be in. Close to issue on confidentiality, and we need to create new boundaries. Lots of work is being done on parental controls to help people understand them, Kite Marks, going into schools and helping children understand the issues, etc. Everyone has a part to play. Internet remains a good thing for peopel to use, but we need to make sure people understand what it offers and how to protect themselves. Liability for internet is codified in the ECommerce Directive, and you have the mere conduit status, and limitation of liability for hosting and caching, for which the test is actual knowledge of illegal things, and that you act expeditiously to do something about it. But it's not clear that that exactly means. Should ISPs be deciding of content actually is illegal? Is that not for the court? For defamatory material, they have to ask lawyers if the content bares defamatory, not is it defamatory because that's the court's decision. Customer also has freedom of speech. Yes, do need insurance so if ISPs do get sued, they claim it back. Or have a clearer notice and takedown methodology. What is 'actual knowledge'? What is 'expeditious'? How do we trust the complainant to be telling the truth. Can cite lots of cases where the complainant has got it wrong. But just because the complainant is well known, say, does not mean that their customer is breaking the law. Important that ISPs have the mere conduit protection, and this is not wiping our hands of the issues, and ISPs do act responsibly, e.g. having acceptable use policies, working with IWF, police, etc.

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October 12, 2006 | Suw Charman Anderson

Parliament and the Internet: ISPs in the content driven era

So I'm here at the Parliament and the Internet Conference, which is being held at Portcullis House and which has been put together by the All Party Parliamentary Internet Group (APIG). There are some 200 delegates here, and the day looks like a very intensive examination of a whole number of issues around the internet. The first session is about ISPs' 'mere conduit' status as set out in the EU ECommerce Directive and affected by the Terrorism Act, and what their role and responsibilities should be in what they are calling a 'content driven era'. Note: There are many speakers and I have not indicated who said what as it's just a bit too difficult to keep track. 'Mere conduit' status means that ISPs are not responsible for the traffic going over their network when they are not aware of the content. Copyright material, for example - if an ISP is hosting infringing material then they can be put on notice and must remove that material. The ECommerce Directive doesn't go into what the methodology for notice and take down should be. Another example is P2P. ISPs act as intermediaries between user and content, they don't host it. They are 'mere conduit's. Arguments: rights holders need to be able to pursue infringement, and as the ISP 'has the power' to pull the plug on hosting and traffic, then they should do more. We've seen lawsuits against P2P infringers, and different ISPs react differently to notices. Issues around how copyright is affected on the internet. Broadband take-up is being driven by illegal downloading of movies and music etc., and the content industry is pushing for action on this. But issues around losing 'mere conduit' status, it could be damaging as people will route round the problem as if ISPs start blocking content then there will be other ways round it. Without 'mere conduit', ISPs face legal action over traffic that's outside of their control. Could drive ISPs out of business or drive customers out of the EU to ISPs based elsewhere. The issue of justifying the status: it's great for ISPs to have mere conduit, but why should society grant that status. Key reason is the innovation argument. 'Mere conduit' says that ISPs are not liable for traffic that goes over their network. If ISP did have liability, they would have to ensure they were protected through some means? How would ISPs implement that? They would have to make judgements about whether traffic is good or bad (or unknown). Unknown traffic is all the innovation, all the stuff the ISP hasn't seen yet, some guy's knew project, that would be seen as 'bad' because you can't judge what it is. The protocols that make up the traffic were created after the basic internet protocol, in 1980. Email was then invented... then the web, IM, voip... lots of new things that have been invented which could never have been predicted. Do we want to freeze innovation where we are now, and say 'everything that can be invented has been invented' and stop development. Or do we want to support innovation? The original rationale for mere conduit was linked to the notion of the internet as a common carrier. The idea of a platform lie the Post Office who create an opportunity for any-to-any communication. Once you start interfering with the mere conduit principle, you end up on a slippery slope that moves towards a walled garden approach where any-to-any doesn't exist and you undermine the whole social and economic value of the platform. A bit more about complaints. The originators of the complaints only have the internet address of where the content is, and only the ISP can match that address to a physical name and address. There is a data protection issue here too - ISPs will not give out that name and address without a court order. They have a duty to protect their customer's data. At an EC level it's difficult - attitudes are different from country to country. The challenge is obvious, it's the balance between this concept of mere conduit, which in a way is intuitive, with the genuine concern of IP rights holders. Or if we look at security matters, and want to make the internet safer, what responsibility shoudl ISPs have? That balance is key for policy makers. Internet is still new, so we shouldn't jump to conclusions. It's still developing rapidly. DTI might say that we should try and find solutions that all parties agree with. [But this speaker, Jean-Jacque Sahel from the DTI ignores the public and rules out 'those people who infringe copyright'.] I brought up the issue that the public/consumers aren't being involved in this conversation. Mr Sahel challenged me to say 'should the infringers be part of the conversation' to which I would argue, yes, absolutely. If you don't know why they infringe, how can you tell if you are moving towards the right policy? The aim, after all, is to bring everyone into the fold, and ignoring those who infringe does nothing to help create a climate in which it becomes easy for them to change their behaviours to more law abiding ones. Also need more of a dialogue between the public and ISPs about what the public expects. In many ways, we have to ask what the ISPs should be doing, and what should be done. It's more 'something should be done', and we have to ask who should do it? Society at large should also be involved. Businesses, in a matter of self-interest will find ways around problems, but with the TV Without Frontiers Directive, it will undermine their ability to do that. Better to have a self-regulatory regime that allows companies to publicise their conformity with a set of objective standards than to have a set of legal rules that apply in principle to all providers but can't be effectively enforced. The advantage of a self-regulatory regime is that it would allow consumers to make informed choices. More than price and business model. The Adelphi Charter makes the point that extending IP law does no one any favours. But is data protection a bigger problem than extension of IP law? Yes, Data Protection Act is currently more important to ISPs than the ECommerce Directive. Public has an expectation that ISPs will take action about security, abuse, spam, etc. One of the problems of this IP debate is that it detracts us from working on more important issues that feel into this debate, such as detecting zombie computers. Is attempting to locate zombies going beyond the mere conduit? These are things we want to do but fear opening the floodgates. The Government expects ISPs more and more to do things that are not in 'mere conduit' status. With abuse, customers are increasingly expecting ISPs to be involved in their own computer security which requires inspecting traffic. Just looking at copyright root is restricting us from looking at other issues and their implications. Need to do a better job of telling people about the good work ISPs are doing, but in some areas if we are not doing good work politicians will want to act. We can achieve more without punitive regulation. Self-regulation is important, and child-saftey is at the top of that. We have a good story to tell about that and we should. Need to ensure that people understand parent control and how to use it. It's a challenge we have to rise to, and we need to talk about it more so that we can avoid regulation first. Have to think about how we present our position to politician. Unfortunate that we aren't talking more about content. ISPs use mere conduit to hide behind for illegal content, whether it's pornography or infringed copyright. Illegal content does us no good. I was hoping we'd have a discussion about what ISPs could to to help. In response, have to review the point about business models. There's limits to what you can achieve with legal action. Just to be a bit controversial, I remember a discussion with music industry representatives and I was told 'there guys are breaking the letter of the law and destroying your business, why don't you sue their arses off?', but no business model has a divine right to exist forever. The reflex is always to try to use the law rather than develop new business models that work with the grain of reality, and that's a problem. There is perplexity in the current policy debate, between ISPs status of mere conduit and their ability to actually manage traffic. Some would argue their ability to manage traffic should be constrained by some sort of net neutrality legislation. In the US at least, it is the ISPs who say they need to be able to actively manage traffic, and the activists say that's inappropriate. So is there a tension between ISPs saying they need to give priority to some traffic and not others, but at the same time saying they are mere conduits. Rights holders say ISPs have the technical ability to pick out, say, P2P traffic and x% is infringing so why not block it. But if that was a bill in front of Parliament there'd be a vigourous debate. Copyright is important, but at the same time blocking of innovation or outlawing of technologies which have uses which are illegal - P2P is not *inherently* illegal. So which considerations outweight the others? But it's not for BT or other IPSs to unilaterally block P2P traffic. The damage to us would be huge, it's nothing to do with the money we make out of P2P traffic - we actually don't make any money out of it. That's a claim that's made, that we have a duty to do something because we make money. But the minority heavy users cost us money, they don't make us money. Also, you can't directly import the discussion from the US to the UK of net neutrality. It arose in the US out of the specifics of the marketplace. That gave rise to specific legislative proposals which caused concern, so I don't think there's a direct comparison. No conflict between differential pricing, say, and mere conduit. So long as you have a possibility for any-to-any communication then there's compromise of mere conduit status. Murmurs around the table afterwards were that the discussion had been oversimplified. It's not just about rights holders and ISPs. It's important to remember, after all, that law is here to protect the public good, not to protect business models, and this discussion appears to be mainly between those parties with the biggest sticks.

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October 12, 2006 | Glyn Wintle

Making, supplying or obtaining articles for use in computer misuse offences

Some very well informed, entertaining and persuasive arguments were put forward in the House of Lords yesterday in a debate on 'Making, supplying or obtaining articles for use in computer misuse offences'. Its not often that you here the phrases "script kiddies" and "code monkeys" in Parliament.

Yes, we are once again talking about the proposed amendment (to s42 of the CMA 1990), which criminalises making, adapting, supplying and offering to supply a program that is likely to be used to commit an offence. Although the original amendment has been improved to 'offers to supply a program that is likely to be used to commit an offence', giving coders less cause for concern, the amendment remains fundamentaly flawed.

The many long and very readable speeches are reproduced here, but for those of you only skimming here's Lord Lawson of Blaby giving one succinct argument.

I am concerned about how this wording will be interpreted. It is clear that anything—whether it be a fast motor car or what we are talking about in this debate—that can be used for a malign purpose is likely to be used by someone of evil intent for that purpose. The wording of the Government's amendment is,

   "is likely to be used",

which means anything that is capable of being used. That goes much further than this House should be comfortable with. I hope that the Government will therefore give it consideration. With this amendment, they seek to narrow the conditions, but they are not narrowing them at all. Another look at this is warranted.

Lord Lawson of Blaby - House of Lords debates - Police and Justice Bill - 10 October 2006

The government apparently see nothing wrong in overly broad laws that criminalise activities the vast majority of computing professionals believe should be lawful. The Earl of Erroll summed up the Home Office's attitude as "Well of course we won't chase the good guys. We won't go after them. We are only after the bad guys." If you're not sure why that's a flawed argument have a read through some of the speeches. Why bother with laws and courts at all, if we can trust the police will only go after the bad guys?

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