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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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October 11, 2006 | Michael Holloway

Draft submission to EC Consultation on 'Content Online in the Single Market' - comments welcomed

Thanks for the comments on our draft. We made the submission - duplicated here on our wiki - in good time.

We're posting this to give Supporters an opportunity to review and comment on our draft version. The deadline for submission is this Friday, the 13th October.

1. Introduction to the Open Rights Group Open Rights Group is a not-for-profit advocacy group which works to raise awareness of digital rights issues in the UK and Europe. A supporter-funded group, ORG connects journalists with experts, organises campaigns and engages with government consultations on behalf of its supporters and the wider public.

2. Comment The views of all stakeholders in the information society should be taken into account when forming policy. Broadening your consultation to stakeholders outside the private/corporate sectors is an important step which we fully support. While all stakeholders agree that copyright is of growing importance in the development of the information society, it is paramount that all affected parties, including the public, have adequate opportunity to convey their views on the development of copyright law and policy.

Policy should result from a combination of subjective surveys and empirical research. Policy must not be based solely on the opinions and reports produced by those who have vested interests, but should instead be a product of independent empirical research. Where empirical research is commissioned, results must be acted upon even if their recommendations might be unpopular politically or with industry lobbying groups. We must not follow the example of the Database Directive review where damaging policy was allowed to stand because it was easier than changing it, but rather show the responsiveness to broader stakeholder interests as seen with Software Patents.

We highly recomment that you follow the recommendations of the RSA's Adelphi Charter when considering reform.

3. Specific concerns 3a. Licensing, rights clearance, right holders remuneration It is becoming increasingly common for rights holders to use contracts and contract law to bypass copyright law, using overly restrictive licence agreements to prevent the public from exercising their fair dealing rights. This effectively extends rights holders monopoly control beyond that granted them by copyright law and, in some cases, diminishes the public domain.

* Licences, rather than contracts of sale, are emerging as the key transaction method in the digital environment. The majority of these licences deliver fewer access and copying rights than are available under existing copyright law.

3b. Networks We fully support the concept of 'network neutrality', which maintains low barriers to entry, provides unfettered access to lawful content, and promotes competition. We should be very wary of any legislation which might allow network operator to profit from discriminatory practices, particularly as network neutrality is already embedded in the concept of 'mere conduits' as enshrined in the ECommerce Directive. Like the Single Market, network neutrality has allowed small publishers and businesses across Europe to reach a wider public thus avoiding media hegemony. It must, therefore, be protected.

A number of undesirable outcomes may result from an end to network neutrality:

* Anti-competitive behaviour, where network operators implement exclusive or preferential deals, or use the tiered system to unfairly promote own-brand content. * A skewed market that favours larger and better funded content providers, inhibiting local diversity and innovation. * Increased costs for consumers, because content providers inevitably pass on surcharges to their customers. * Increased consumer confusion, because broadband users will experience varying response times in a tiered system.

3c. Piracy and unauthorised uploading and downloading of copyright protected works A failure to distinguish minor copyright infringement performed by individuals from large-scale commercial counterfeiting of works by organised criminal gangs will damage public respect for copyright law. Whilst the former technically constitutes copyright infringement, there is no compelling evidence that it actually harms either right holders or authors / producers. Prosecuting such cases is not in the public interest, and it is particularly important that such infringement remains a matter for the civil, not criminal, law. Introducing draconian IP enforcement provisions, beyond the measures available in most member states, at the behest of multinational content-industries to 'fight terrorism' will also have a corrosive effect on public respect for copyright law.

3d. Digital Rights Management (DRM) We recommend that the Commission avoid future market interventions such as the Copyright Directive's anti-circumvention provisions, but instead allow the market to decide if DRM is a useful tool for consumers. We particularly support the lifting of anti-circumvention legislation Europe-wide.

* DRM is given close to total legal protection within the UK, with no practical processes allowing for legal circumvention in the interests of disabled access, long-term preservation (archiving) or where the DRM prevents uses permitted by fair-dealing exceptions. One practical effect of the EUCD anti-circumvention provisions is to undermine the intent of laws protecting the disabled and ensuring public access to information goods.

* DRM does not have to expire, and can effectively prevent the work from entering into the public domain at the expiry of the copyright period.

We recommend that DRM and TPM (technical protection measures) are not allowed to undermine the longstanding limitations and exceptions such as fair dealing in UK law. One possible method to ensure user-rights (suggested by the UK's National Consumer Council) is for mandatory labelling of DRM products, clearly explaining permitted and prohibited uses. 4. Afterword

If you would like ORG to provide more detailed testimony, please contact Suw Charman, Executive Director (suw.charman@openrightsgroup.org).

REFERENCES 1. The RSA Adelphi Charter - http://www.adelphicharter.org/adelphi_charter.asp 2. The National Consumer Council's recommendations for labelling DRM - http://www.ncc.org.uk/intellectualproperty/gowers.pdf

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