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May 08, 2013 | Francis Davey

Orphan Works - the new law in the UK

Social media feeds have been full links to alarmist stories about a recent change to UK copyright law that allows for the licensing of orphan works.

Photographers have been particularly concerned after one site (which I won't dignify with a link) used the headline "ALL your pics belong to everyone now". So much alarm has been created that the UK's intellectual property office felt moved to publish a PDF debunking some of the myths that have arisen. I was waiting until the Enterprise and Regulatory Reform Act 2013 was published on the government's legislation website before making my own comment.

The problem of orphan works is well known. Copyright lasts for a long time. In the UK it will usually be for 70 years after the death of the author. Discovering the author of a work to discover whether it is, or is not, protected by copyright can be difficult, let alone discovering the present owner of that copyright in order to ask them for a licence. The effect of that is that many works are either not used, or used only by organisations that care little about copyright on the ask forgiveness not permission principle.

There are radical solutions to this problem, for example we could require that copyright owners register their copyrights in order to enforce them, as the United States did until relatively recently. Or we could adopt William Patry's more modest proposal where no registration would be required for an initial, but relatively short, copyright term. To extend the life of a work's copyright, the copyright owner would be required to register. Such a system would make it very easy to discover who was the owner of a work older than the short initial period of copyright, but of course there would be administrative costs associated with it. Legislators have been more timid in their response.

The European Directive

One solution that has already been enacted is the European the orphan works directive (2012/28/EU), although the UK does not have to transpose it into UK law until 29 October 2014.

The orphan works directive is an exceptionally modest provision. Its beneficiaries are public libraries, education establishments, museums and archives. Any institution wishing to use an orphan work must first carry out a "diligent search" in good faith from "appropriate sources". The directive itself lists some "appropriate sources" which would have to be searched, but member states may add to the list, which varies depending on the type of work involved.

Records have to be kept by the institutions of their diligent searches which must be sent to their national government which in turn must make the results available on a publicly searchable website (good to see that governments are beginning to understand open data). This ought to make it easy for copyright owners to discover whether one of their works has been designated as an "orphan" and, having found out, make sure that oprhan status is rescinded.

Institutions may only use the works to achieve their "public-interest missions" and may only charge in order to recover costs of copying or making available to the public. They may not exploit the works commercially.

Canada

The orphan works directive tries to maintain the broad integrity of copyright by delegating the task of carrying out a diligent search and managing the orphan works system to trusted public institutions. By contrast Canada has been using an orphan works law which relies on a central authority, theCopyright Board of Canada.

Section 77 of the Canadian Copyright Act 1985, entitled "owners who cannot be located", requires anyone seeking a licence for what we call orphan works to satisfy the Copyright Board that they have made "reasonable efforts to locate the owner". The Board may then issue a non-eclusive licence on any terms it chooses to specify. According to their brochure they will usually require the payment of a licence fee, which will be paid to a collecting society. If the owner of the copyright appears within 5 years of they expiry of the licence, they may claim the licence fee. Where the fee was paid to a collecting society, the society will pay the owner.

The Board do not issue very many licences - roughly 22 a year since 1990Not all applications for a licence are accepted. Whether "it works" in Canada I do not know, but copyright has clearly not come to an end there.

The United Kingdom

So where does that leave us? Section 77 of the Enterprise and Regulatory Reform Act 2013 introduces a new section 116A of the Copyright, Designs and Patents Act 1988 concerned with orphan works. Section 116A is a mere skeleton. It allows the government to make regulations that would allow someone (an authorised person) or alternatively some people to be chosen by someone designated for the purpose, to grant licences to orphan works. The content and circumstances of the licences we do not know. All we do know is:

  • a work will not be an orphan work unless a diligent search is made for the copyright owner
  • what counts as a "diligent search" will be defined in the regulations
  • the licences may not be exclusive
  • nor may they be granted to a person authorised to grant licences

Now in theory this means we could end up with a Wild West system where there was little real control over licensing of orphan works. The regulations could be very lax on what counted as a "diligent search" and very generous about the licensing terms. That is always a risk with open-ended legislative provisions (and why they should not be used by Parliament).

The reality, according to the intellectual property office, is that we will end up with something similar to the Canadian system. Licences will not be free. Copyright owners will be able to claim fees that have been paid. There will almost certainly be a fairly tight and prescriptive description of what counts as a "diligent search". It will not be enough simply to look at the metadata on a photograph, shrug one's shoulders, and go ahead.

Extended Collective Licensing

In parallel to section 116A is a new 116B which will allow collecting societies in sectors where they now organise (eg books and music) to be given permission to license works that they do not have any existing right to license - eg where they do not own the rights and the author has not given the society permission to license them. This is not an orphan work provision. It applies even though the society knows full well who the author of a work might be. I mention it because it has been mixed into some of the reports about the orphan works provisions.

I have my doubts about extended collective licensing, but it will at least be an "opt out" system. No-one has to participate if they do not want to. In a sector where most licensing is direct (author to user) such as photography, there may never be such a system as the intellectual property office has indicated.

Consultation

The intellectual property office tell me that there will be extensive consultation on the detail of any regulations. Anyone having an interest in these provisions should make sure they engage with the consultation or join with others to represent them collectively. I am sure the open rights group will be making representations.

Reposted from Francis Davey’s blog under a CC-NC-AT licence. Francis Davey volunteers for ORG in our legal group, ORG Law

 

 

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May 08, 2013 | Jim Killock

Snoopers' Charter: dead or just sleeping?

ORG, our supporters, Liberty, Privacy International, No2ID and Big Brother Watch will be celebrating a victory today, with the withdrawal of the Snoopers' Charter from the government's legislative programme.

What's left is a promise to find 'proposals' (PDF, p74) to ask mobile companies to record user data in a similar way to other ISPs. This may still go beyond the basic principle of recording data for business purposes, and allowing lawful access to it when necessary, but is a long way from the original proposals for sweeping trawls for data, plus engines to analyse it.

However, we have not removed the underlying assumption that recording information about everyone's phone and Internet communications is necessary to combat terrorism. As Duncan Campbell in our Digital Surveillance report notes, the recording of communications data is pretty novel, dating to the 1990s. It is not a 'principle' that data must exist and be accessed. Furthermore, there are alternatives to recording everything, particularly, as Caspar Bowden notes, targeted preservation of data concerning suspects.

What will not go away is the fear of politicians of getting surveillance of criminals wrong. They usually prefer to cover their backs, which in this case means surveil everything, just in case. This may be nonsense in practice – police have too much data and cannot use it, as Sam Smith observes.

We also need to ask how and why these policies for extreme forms of mass surveillance keep coming back, with little challenge internally. They frequently look expensive and barely workable – key components such as decryption of data, man in the middle attacks and the use of 'black boxes' to reassemble communications data were dropped; while others were scaled back during discussions with the Joint Committee that examined the proposals last year. Why was legislation proposed by the Home Office, if their understanding of the technologies they would have to deploy was so flaky? And what exactly did they spend £400 million on?

Data retention laws mean that innocent citizens are already having their Internet communications recorded 'just in case' thanks to the Data Retention Directive. This is thankfully under challenge, in Austria and Ireland, and due to be pushed to the European Courts. There is little evidence that data retention is truly useful or necessary. There is plenty to point to it being unlikely to conform with human rights standards.

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April 29, 2013 | Jim Killock

Digital Surveillance: how to avoid another Snoopers' Charter

The Home Office often framed the debate over the Snoopers’ Charter in ‘them and us’ terms. But if this really does just come down to picking sides, it is odd that both of the Parliamentary committees tasked with examining the draft Bill – the Joint Committee on the draft Communications Data Bill and the Intelligence and Security Committee – reached such critical conclusions.

digital surveillancd report cover

Following Nick Clegg’s rejection of the Snoopers’ Charter, our new report brings together leading Internet experts, lawyers and campaigners to offer credible, less intrusive alternatives to the Home Office’s Communications Data Bill. The authors make a call for more targeted, more transparent and more accountable surveillance laws and offer a number of useful recommendations for how to achieve this.

In attendance at our launch at 2pm will be Jim Killock, Nick Pickles (Director - Big Brother Watch), Rachel Robinson (Policy Director - Liberty), Angela Patrick (Director of Human Rights Policy - JUSTICE), Duncan Campbell (investigative journalist), Professor Peter Sommer (Visiting Professor - De Montfort University) and Richard Clayton (University of Cambridge). 

Our new report demonstrates that surveillance policy makers have options, many of which are a lot less intrusive than the powers proposed by the Snoopers’ Charter, and that civil society is open to meaningful engagement about surveillance laws in the digital age. It is written for a general audience by leading experts, academics and representatives of a number of civil society groups. The articles in this publication serve as an example of the sort of conversations that would be possible through a proper public debate about what information should be collected and who should have access to it.

The report has 10 final recommendations:

  1. Hold an overarching review, potentially through a Royal Commission, to properly study surveillance in the digital age.
  2. Judicial oversight of requests for intrusive communications data, in particular for all traffic data requests.
  3. Choose ‘data preservation’ rather than blanket data retention. Include quick response and emergency processes, and means to intelligently and accountably identify targets.
  4. Create a unified Surveillance Commissioner capable of carrying out a strong, independent audit with “multi-skilled investigators including human rights and computer experts.”
  5. Reject vague proposals, such as those in the draft Communications Data Bill, for automated, pervasive analytics tools designed to trawl through and across datasets.
  6. Provide stringent penalties for misuse of either powers or data. 
  7. Individuals should be notified by default of a decision authorising the request for their communications data.
  8. Lift the ban on the use of intercept evidence in court.
  9. Invest in law enforcement’s capacity to use and analyse the data already available to them.
  10. Use the International Principles on Communications Surveillance and Human Rights developed by Privacy International and other groups as a template for future laws.

In chapter one, Duncan Campbell sets out the history of the tension between state surveillance and efforts to protect individuals’ privacy. He explains why the draft Communications Data Bill is “the latest chapter in the history of British state surveillance.” He also tells the parallel story of efforts to keep surveillance powers in check, including the 1972 Royal Commission on Privacy which “set out 10 principles of data protection that later underpinned data protection statutes in Europe and the UK.”

In chapter two Angela Patrick, Director of Human Rights Policy at JUSTICE, gives an overview of the current settlement between the law, surveillance and the protection of privacy. She looks at how the draft Communications Data Bill could exacerbate problems with existing surveillance law, for example relating to oversight and complexity. She highlights that the overriding difference between the draft CDB and the existing law is the move “away from the presumption that for limited purposes, the State may access data already retained or reasonably obtainable by service providers...Instead, it creates a statutory basis for the generation, collection and retention of data about us all.”

In chapter three, Richard Clayton outlines in detail key surveillance technologies, showing what information about us is available and how the technology to gather and access it works. He outlines how the ‘filter’ – a key part of the CDB proposals – will work. By correlating information from multiple sources, he explains how the filter can answer complex queries. For example, he suggests that “the source of an embarrassing leak could be identified by cross-correlating records to pick out exactly who in Whitehall sent out an email whose reception by a journalist triggered an immediate call to the relevant newspaper editor.”

Peter Sommer, in chapter four, argues that while surveillance law “is about balancing competing objectives”, a number factors inhibit “sensible and balanced discussion”. They include the pace of technological change, the demands of the law enforcement community, the level of technical and legal expertise required to understand how best to respond, and the fear of getting it wrong.

Chapter five features contributions from a range of experts setting out how more privacy-friendly surveillance policy could work.

For example, Caspar Bowden suggests how ‘data preservation’ policies could work to limit whose data is collected. Sam Smith from Privacy International argues that more could be done to help law enforcement make better use of what information is already available. Rachel Robinson from Liberty recommends lifting the ban on the use of intercept evidence in court, and Peter Sommer calls for a Royal Commission into surveillance laws in the digital age.

In our conclusion we draw together these contributions and make some recommendations for future surveillance policy making.

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April 26, 2013 | Claudia Mateus

Digital Surveillance video

Richard Clayton, Peter Sommer and Duncan Campbell, some of the authors of our new Digital Surveillance report, give us a preview of their contributions by explaining their thoughts about surveillance law.

The Digital Surveillance report - to be launched at a public event on Monday - gives a history of surveillance policy, looks at the current state of the law, examines why technology poses a problem and offers alternative, more targeted and more accountable approaches.

The report demonstrates that surveillance policy makers have options that are significantly less intrusive than the powers proposed in the Snoopers' Charter. It is written for a general audience by leading experts, academics and representatives of a number of civil society groups, with a series of concrete recommendations for policy makers.

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April 25, 2013 | Peter Bradwell

Naked Citizens campaign launch

Today we visited Facebook in London, launching a new campaign for a strong Data Protection Regulation.

This afternoon Open Rights Group headed over to Facebook's offices in Covent Garden, London. We delivered a new report about the Data Protection Regulation. We were there to launch a campaign to make sure this proposed law strengthens our privacy rights.

ORG at Facebook launching Naked Citizens campaign

(More pictures are up on our Flickr site.)

The Data Protection Regulation was proposed by the European Commission last year and is currently being discussed by Members of the European Parliament (MEPs). It could give us more control over what happens to our personal information and make sure those that use it are help to account.

But a number of the changes that MEPs are currently discussing could instead strip us of our privacy rights. Many of these stem from an unprecedented lobbying effort by big US tech companies, the US Government and the advertising industry.

NakedCitizens.eu is a response to this, put together by a coalition of privacy groups from across the EU including ORG, Privacy International, EDRi and Bits of Freedom. 

Our report, put together by privacy experts from this coalition, features new analysis of proposed amendments to the Regulation and reveals how many of these threaten to critically undermine the privacy of EU consumers and citizens. 

Together, the amendments are an effort to strip EU citizens 'naked' by making it almost impossible for them to control who sees their personal information and how it is used.

Instead of empowering users to take control of their information, we may end up with a Regulation that would allow businesses, institutions or organisations to collect and share personal information in opaque, unaccountable ways.

Visit the website NakedCitizens.eu and write to your MEP. Ask them to make sure we get stronger privacy rights and more control over how our personal information is used. Don't let corporations strip us of our privacy rights!

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April 25, 2013 | Jim Killock

Fatal Blow to the Snoopers' Charter?

Nick Clegg this morning announced on London's LBC radio that “What people dub the Snoopers' Charter, that's not going to happen”. He went on to say that mass snooping on citizens was “not either necessarily workable nor proportionate”. Your persistent campaigning has paid off and it looks like many of the proposals in the Communications Data Bill should be dropped from whatever emerges in the Queen's Speech.

 

We hope it is an end to the latest tranch of mass surveillance, however we are not going to let anything else slip in in a new form as it is clear the Home Office and the Conservatives still wish to see a watered down version of the Communications Data Bill appear.

If new proposals appear we'll be looking to check:

  1. That the request filter and data trawling engine is dropped
  2. That the data ISPs and CSPs are compelled to collect will be minimal
  3. That there is no easy way for the Government to compel new data sets to be created

We'll be keeping a close eye on the Queen's Speech to see if anything tries to be pushed through and we will not drop our close scrutiny.

This is a massive victory for Open Rights Group and our allies, and a great day to be an ORG supporter! Thank you for all your help in writing to MPs, challenging the Home Office and keeping the pressure on, making the campaign to stop the Snoopers' Charter a success.

We hope to see you at ORGCon!

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April 15, 2013 | Ruth Coustick-Deal

ORGConNorth: Reporting back from Manchester's digital rights conference

Our first ORGConNorth was a great success! Here's a round up of all the panels and unconference topics.

ORG Con North logoAround 70 people attended ORGConNorth at the Friends Meeting House on Saturday April 13th,  It was a really lively event – the first of many more local conferences we hope.

ORGConNorth had a great range of speakers who provided a lot of thoughtful commentary and we would like to thank them all once again for giving up their time, and joining us on the day! You can see the full list of speakers here and take a look at the programme on the event page.

So what happened?

The day began with a great keynote from John Buckman, chair of EFF, entitled 'Britain, under the thumb of...' which set the framework for the day and is available for download here.

The post-keynote first half of the day covered ORG's four big topics of the moment in a series of panel debates: Copyright reform, freedom of speech, online surveillance and data protection.

 
Our session on copyright looked at why there has been such a tension between copyright and the Internet, and what we might do about it. Jez Collins noted the history of music sharing, Loz Kaye talked about access to culture and educational resources, and Robin Gower set out why data from trading funds, such as the Met Office or Ordnance Survey, should be released as open data.
 
 
The panel on Data Protection focused on the corporate lobbying to water down new European legislation. We looked at the key issues at stake, including the right to control your data through stronger consent, data 'portability' and the right to delete your data. ORG is heavily involved in a joint campaign to ensure the European Parliament sides with citizens in the forthcoming votes. (We've produced a short briefing on the Regulation.)
 
In the Snooper's Charter talk, James Baker from No2ID gave an impassioned summary of the history of Internet snooping and data retention. Jamie Bartlett from Demos outlines the view that accepts a capability gap does exist, and tried to explain why the Home Office and others are motivated to try these policies.
 
I sat in on the panel on the right to be offensive which discussed freedom of speech issues. Ben Zevenbergen, the panel chair, took its subject matter to heart with the questions quickly moving to the floor for an open discussion. It covered whether Twitter, Facebook and other online platforms are now so much part of public infrastructure that perhaps they should they be nationalised (like trains!), also whether deleting agressive comments is a form of censorship - and the thin line between offensive speech and harassment.

In the afternoon we broke up into unconference sessions where some great debates were led by attendees. In my group at least we all could have talked forever and it was good to keep the discussion going in the pub afterwards! Here's a summary of the unconference discussions:

  • MedConfidential - Phil Booth presented on the MedConfidential campaign and how changes in the NHS threaten the fundamental basis of medical confidentiality. Without medical confidentiality people will hold back important information from their doctors creating health harms.

  • The FISA Amendment Act - Caspar Bowden put in a brief presentation on the the provisions of FISAA (the Foreign Intelligence Amendments Act) - see http://euobserver.com/justice/118857 He talked about how it allows US intelligence the legal ability to snoop on any data in the cloud handled by US companies relating to foreign citizens. Caspar is trying to place amendments into the Data Protection Regulation which would force US companies to place EU data under some protection from this.

  • Bursting the Bubble - led by Pirate Party UK's Campaigns Officer Andy Halsall this group talked about how both the Pirate Party and ORG need to expand the discussion to show how digital issues relate to everyone. Although the group agreed that ORG 'punches above its weight' there is a digital bubble we remain within. ORG Supporter Miljenko Williams wrote a further review of the discussion which you can read on his blog.

  • Password Security – Sam Hogarth led a group discussion on the best methods for password security, sharing tips and knowledge, tools and techniques to keep your data safe after recent scandals like the LinkedIn password loss.

  • Opinionated Software – This group talked about common concerns about software selling people short - for example when terms & conditions are ammended and curtailed after purchase. They compared public vs private providers and open vs closed software, concluding in a call for a standard or badge that ORG could perhaps provide to mark software that met requirements such as fair use, good T&Cs and so on.

  • Freedom of Information Requests - This workshop looked at how to do Freedom of Information requests. They also discussed the current threats to the FOI Act, which are very real despite some good moves towards better 'Open Data' policies. The coalition is considering allowing public bodies to group requests by the same organisations for cost calculations, for example. This could devastate local press and advocacy groups. They are also rejecting calls to expand FOI to private providers of public services.

Want more?

If you missed out on ORGConNorth or want a re-cap there are lots of other ways you can go over the material:

You can pick up the tweets of the day at the Eventify page or see the pictures on the ORG Flickrpages. Videos will be up very soon so watch this space!

Brian Pellot wrote a review of ORGConNorth on Index on Censorship's blog.

If you have written a blog or report on ORGConNorth we would like to link to it here, so let us know.

If you have any feedback you would like to give such as: Where should the next ORGConNorth take place? What talks / sessions should we have included? Please email events@openrightsgroup.org

See you at the next ORGCon! 

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April 08, 2013 | Claudia Mateus

Data Protection Regulation Debate

By the summer, Europe will have decided on some of the most far-reaching and controversial privacy legislation in the world, that is the Data Protection Regulation. ORG have invited some experienced personalities to give us a professional opinion about the most controversial issues around the draft.

Part 1

In the first part of the podcast, the discussion focus in two of the most controversial issues around the draft: the definition of personal data and consent.

In order of appearance: Anna Fielder (consumer rights advocate), Nick Stringer (director of Regulatory Affairs of the Internet Advertising Bureau), Jan Philipp Albrecht (Group of the Greens Member of European Parliament), Jeffrey Chester (the executive director of the Center for Digital Democracy) and Axel Voss (Group of the European People's Party Member of European Parliament).

 

Follow this link to go to the podcast and download it.

Music:
Bored on Your Backside by Trifonic
cc-nc-sampling+

 

Part 2

In the second part of the podcast, the debate goes through the proposal's balance between the different interests implied in the legislation and the massive lobbying campaign that the issue has arised.

In order of appearance: Nick Stringer (director of Regulatory Affairs of the Internet Advertising Bureau), Jan Philipp Albrecht (Group of the Greens Member of European Parliament), Jeffrey Chester (the executive director of the Center for Digital Democracy), Axel Voss (Group of the European People's Party Member of European Parliament) and Anna Fielder (consumer rights advocate).

Follow this link to go to the podcast and download it.

Music:
Bored on Your Backside by Trifonic
cc-nc-sampling+

Jan Philipp Albrecht's photography: by Fritz Schumann

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