Due to some problems with their website, the European Commission have extended the deadline for submissions to the 'notice and takedown' consultation. This is actually pretty good news for anyone who has yet to submit a response - you still have until Tuesday 11th September to have your say. The Commission are asking for responses to a questionnaire.
The consultation is basically about how illegal content is dealt with by online intermediaries (meaning things like social networks or search engines and so on). Central to this is 'notice and action' (N&A), where a hosting provider is notified about some apparently illegal content and then some action is taken to deal with it. As the EC's 'roadmap' (where they set out some of the key points on the issue) says, "N&A procedures are at the heart of debates on the freedom of speech, innovation, security and the dangers of the internet in particular for vulnerable groups."
A significant concern is that currently N&A procedures lack sufficient due process, leading to legal content being removed on the basis of mere allegations. Abuses of the process are also a significant concern, again leading to content being taken down when it shouldn't. N&A procedures are crucial to questions of freedom of expression online – with the removal of legal content chilling citizens’ right to receive and impart information.
After hearing concerns that the current system is fragmented and is pleasing nobody, the Commission said in January that these procedures "must therefore be made more efficient, within a framework which guarantees legal certainty, the proportionality of the rules governing businesses and respect for fundamental rights" (From the Communication on e-commerce and other online services (2012))
We'll be telling them that they need to pay attention to due process and make sure there are robust mechanisms for establishing the illegality of content, for challenging contestable claims and getting redress when things go wrong, and effective sanctions for those that abuse the process. We'll also highlight some of the recent examples where things have gone wrong, and the issues of mistaken blocking we raised in our mobile Internet censorship report. Fundamentally, this is about who or what decides when we should not be allowed to look at something online, and what happens when they get it wrong (mistakenly or otherwise)?
If this is something you are concerned about, please submit something to the consultation. The Commission are asking to responses via their questionnaire. The deadline is Tuesday 11th September.
Some organisations have already submitted responses. EDRi have put up their submission and annex, and La Quadrature du Net have published theirs too. You can read some notes from JANET here (JANET is the network that connects the UK's research and education institutions). Saskia Walzel of Consumer Focus has posted about the consultation on ORGZine and at the LSE Media Policy Project blog.
The story that Bruce Willis was to sue Apple because he could not leave his MP3s in his will circulated round the UK press last weekend. His wife has since denied it.
However, one thing remains true. Your digital rights are pretty limited when it comes to leaving downloaded copyright material in your will.
This stands in contrast to physical goods, where you can of course resell or leave your books, DVDs and CDs in your will.
Only software downloads can legally be transferred or resold. A recent case in Europe made this clear when Oracle tried to stop UsedSoft from reselling their downloaded, licensed software. The court disagreed, and pointed to the EU Software Directive.
Many of the reports focused on terms and conditions of Apple’s store. On one level, this is true, copyright owners could agree to license their downloads like this. Perhaps this would be complicated, given the myriad levels of contracts and ownerships, but it is possible if consumer demand is there.
More fundamentally, a change in the law is needed. People will start noticing how unfair this is as they write their wills. As they learn that their digital assets, those they have bought, perhaps for thousands of pounds, are worthless on death, they will feel cheated.
Equally, there is little prospect that individuals who inherit hard drives are going to meticulously delete material which has been paid for. The law will turn people inheriting the physical assets into copyright infringers.
Europe missed a chance to resolve these problems in the Consumer Rights Directive in 2011, although some improvements to the digital market have been made.
But the problem isn’t going away. In many cases, where material is downloaded from a single account like iTunes, the excuses for denying transferability are extremely flimsy. Copyright needs to work for people who are investing in their collections, and the inheritability of your collection is a key missing right.
Someone needs to take on Apple and Amazon. And we don't need to wait for Hollywood stars to do it.
Opinions have been varied and robust (see the American Assn. of Independent Music statement, for example). The UK Government yesterday expressed a sort-of opinion on the matter, with Secretary of State Jeremy Hunt saying: "As far as the specific deal is concerned, that is a matter for the competition authorities and is being looked at in Europe". Critics have said that it could concentrate power in the music industry, shrinking opportunities for access to the market. According to the Wall Street Journal, Martin Mills, chief executive of independent music group Beggars Group, said the deal 'would give Universal an unfair advantage in signing artists and gaining access to distribution, retail and media'.
We've been monitoring this because we're interested in how the new landscape could or should affect musicians and their relationship with the big players in the business. Whatever the outcome of the attempt by Universal Music Group to buy EMI, it seems important that regulators consider the likely impacts on citizens not just in their role as consumers, but also as creators and performers both now and in the future. Digital technology brings opportunities to all of us to participate in culture and in markets. Allowing the incumbent businesses simply to divide up the market between them in a new way doesn't seem like a great stimulation to innovation.
So we've noted with interest the Featured Artists Coalition suggestion that artists involved should be given the chance to buy back their rights from record labels on fair terms. Those artists would then be free to re-enter the market in new ways and with business models far better adapted to the digital world. FAC say:
"This is an historic opportunity to create a more sustainable music industry – a future music industry more meaningfully described as a collection of individual artist businesses rather than specific sectors like records, publishing and live."
Here's their open letter to the Financial Times from 19th July in full:
"Sir, The views of Patrick Zelnik (“A Universal EMI merger could rescue the music business”, Comment, July 17) were as welcome as they were needed. His analysis was incisive, but his solution stopped one step short of perfect.
Divestments in the wake of mergers should first offer copyrights, at market rates, to the artists who created them. To sell them to other corporations, whether large or small, is just a perpetuation of an old business model, which has seen the recorded music business halve in value over 10 years. During that time, the technological revolution has displaced the old music business players. We do not need to repeat the mistakes of the past.
It would be good to have music business people rather than financiers owning and running music companies again. It would be even better to have artists owning their work and entering into partner relationships with service-providing major and independent record companies with all the finance and expertise an artist needs to develop their own business.
Top management at Universal has already concurred with this view. The concept of “turning the taps on” so that music catalogues are much more readily available to users, and copyright ownership is not an impediment to new services, would help build the artist-centric new music business that will benefit creators, investors and consumers.
Ed O’Brien, Radiohead
Nick Mason, Pink Floyd
The Featured Artists’ Coalition"
It seems like this proposed acquisition gives regulators a unique opportunity to think in these terms - about the position of the creator in digital markets - as they consider ways to protect against over-concentration in music markets. ORG supports this suggestion from FAC, and urges regulators in the UK, Europe, and elsewhere, as a matter of principle to put artists and citizens at the centre of their response.
Yesterday was deadline day for Ofcom's consultation on the revised 'Initial Obligations Code' - the instrument that sets out how the Digital Economy Act will work in practice. This is the second iteration of the Code, following an initial consultation back in 2010.
We have put up our submission in our reports section. Thank you if you responded to our call earlier in the week to respond or to submit your story to us.
Since the previous consultation, Ofcom and DCMS have had two years to fix the problems. So it's frustrating that such important problems remain.
In our submission, we note in particular that Ofcom and the government have failed to address to issue of wifi providers, leaving providers of wifi access from cafes, hotels and bars through to libraries and universities with no clarity about their liability. Despite the increasing importance of a widely available 'infrastructure' of publicly available internet access, the Code does nothing to address the position of those providing that access.
We're not a lone voice. Consumer Focus call in their submission for the Secretary of State to withhold approval of the Code in its current form 'because it does not provide legal certainty on reasonable steps or for WiFi providers, business and public bodies which provide internet access to consumers'.
Mike O’Connor, Chief Executive of Consumer Focus said "Ofcom’s draft code does not provide clarity to WiFi providers, businesses or public bodies over who is responsible for copyright infringement carried out through a shared connection. We are concerned that libraries and universities could find themselves incurring significant costs which may result in them deciding to limit internet access. Hotels, pubs and cafes also face legal uncertainty. There is no evidence that significant levels of infringement occur on WiFi networks or the networks of libraries, which provide access to the web for those on low incomes and the 20 per cent of households without internet connection" and that they are "calling on Ofcom produce a revised Code which will respect legitimate consumer rights and help businesses and public bodies to continue to provide internet access to consumers".
Libraries, universities and other research institutions recently called for Ofcom to address the position of wifi providers, arguing that as it stands, the Digital Economy Act risks 'forcing public libraries, schools, colleges and universities to limit access to the internet.'
We'll post more submissions to the Code as we see them.
We'll also be writing to the Minister Ed Vaizey echoing the calls for him to ensure a definitive solution to the remaining concerns with the Code, and asking him not to approve the Code in its current form.
Ofcom are running a consultation on a new version of the 'Initial Obligations Code'. That sounds as boring as it is important. It basically sets out how the Digital Economy Act will work in practice.
ORG and many others have repeatedly told Ofcom and the Government that the Digital Economy Act could stifle Wifi provision and see individuals targeted unfairly. It is the Code which should sort that out. But the revised Code, two years in the making, has not addressed some of the key issues.
Ofcom and the Government have refused to create an exception for wifi providers. As a result, we think the Code leaves businesses and public bodies that provide wifi facing allegations of copyright infringement and the costs of dealing with the powers of the Act. Libraries, other educational bodies and hospitality businesses have said they may restrict or withdraw wifi provision if this does not change.
This is our chance to say why this is a bad idea.
There are two things you can do.
- Please consider responding to the consultation yourself, especially if you are a wifi provider or regularly use wifi in public and are worried about how this will affect you. You have until this Thursday (26th July). You can respond to the consultation using the form on Ofcom's website. Or there are more details on how to respond at the bottom of this email.
- Tell us if you are a wifi provider, and think you might receive allegations of copyright infringement as a result. You can use our form to let us know, and we'll pass this on to Ofcom as part of our submission.
What is happening?
Ofcom have published their revised 'Initial Obligations Code'. This sets out who is subject to the provisions of the Digital Economy Act, and who is not. It says, for example, whether those that provide access to wifi in public places, like cafes, will have to deal with allegations of copyright infringement.
Wifi providers still don't know whether they will be held liable for the behaviour of those using their wifi. The revised Code does not address their situation directly, leaving them unclear as to whether they will be considered 'subscribers' (and therefore subject to allegations of copyright infringement) or not. The only way they can avoid this is by negotiating with their ISPs, convincing them they are wifi providers. It is complicated and time-consuming, and it is not even certain that this will see them avoid the powers of the Act.
This is despite repeated warnings from libraries, campaigners and MPs about the precarious position wifi providers are being placed in. If you run a business that provides open Wifi or access to customers - for example, a cafe, bar, or hotel - then this Code affects you. Wifi is an increasingly important part of the UK's internet infrastructure. The Government should not be putting that at risk so cheaply.
We think Ofcom should create a carve out for public bodies and businesses that provide Wifi to their customers, to ensure that WiFi provision is still as widely available as possible.
Ofcom's site has the new Code and consultation document. Saskia Walzel from Consumer Focus has written more about the detail of the proposals for ORGZine.
What can I do?
Two things. First, if you are a wifi provider, or regularly use the Wifi available in the places mentioned above, and feel the Code does not do enough to protect wifi provision, then please let Ofcom know. This is a real opportunity to tell the Government that the Digital Economy Act still poses a serious risk to the provision of Wifi in the UK. If you think you will be affected, respond to the consultation. The deadline is 26th July. Ofcom have given you a few ways to respond. Here's what they say:
- "Online: The quickest and simplest way is to complete our online consultation response form. This is ideal for people who have specific brief points to make and/or do not need to attach large documents to their response.
- By email: For larger consultation responses - particularly those with supporting charts, tables or other data - please email email@example.com attaching your response in Microsoft Word format, together with a consultation coversheet.
- By post: Alternatively, you can write to Ofcom. Please address your response to Justin Le Patourel, Head of Online Copyright, Floor 2, Internet Policy Team, Ofcom, Riverside House, 2A Southwark Bridge Road, London SE1 9HA. Please enclose a consultation coversheet with your response."
Second, we'd like to use your stories to help us explain to Ofcom the issues with the Code. There's two things we'd like to know:
- Tell us if you provide wifi to the public, and are worried that you might incorrect receive allegations of copyright infringement. Give us details if possible about the kind of wifi you provide.
- 2. People will be given 20 days to appeal allegations of infringement. If you think this will not be long enough, let us know and tell us why.
You can use our form to tell us. Please submit your story before the end of this Wednesday (25th July).
Yesterday’s hearings on the proposed Communications Data Bill provided for some hilarity, as Professor Glees laid into the “civil liberties lobby” and made quite outrageous claims for the need for increased surveillance to reduce criminality.
He made a very weak case. Which seems comforting: but Professor Glees is not the government, nor Charles Farr.
The signs are that the Home Office is gearing up to bolster their arguments, starting with calls to gather evidence for the “business case” for new data gathering, mentioned by the police in their evidence session.
While constructing the business case after you propose legislation ought to worry the committee, for us, the lack of detail surrounding the proposals is highly worrying. Julian Huppert today said that he was declined access to draft orders, which would contain more information. Big Brother Watch were declined information about the costs and analysis breakdowns, which we have also requested.
How is committee meant to scrutinize a proposal that has not been properly published?
The committee’s debate has been encouraging. We have managed to advance the idea of notification of people after they have been investigated; the need for independent supervision has also been properly discussed. Most commentators have assumed that the scheme will aim at creating data mining capabilities.
The questions over capability, data mining and the consequences of collection are harder to articulate. We reminded the Committee about China hacking Google via police back doors; and Vodaphone Greece being hacked via law enforcement back doors by an unknown government.
Data, once created, poses a risk. It is interesting to criminal gangs and foreign governments, as well as law enforcement. Law enforcement is not entitled to put the whole population at risk because of its own needs, especially when these can be met in other ways.
Hopefully the risks will be discussed in more detail in the technical sessions, now planned for 4 September.
However, all of us worried by this Bill do need to know more about what this supposed reduction of data really is about. Is it law enforcement having investigatory problems, and lacking expertis in finding the relevant data? Is it that some companies have good data minimization policies? We need to know, in order to help the Committee understand the real options available.
Digital Economy Act time. Remember that?! We spent yesterday morning at Ofcom, who kindly offered us and a couple of other organisations the chance to ask questions about their revised Initial Obligations Code. It was a useful exercise. It's clear that they have done plenty of work on the code since the previous draft in 2010. It seems to us like there's plenty still to look at - for example there's still plenty of uncertainty around the liabilities to be faced by WiFi providers, in our opinion. They're running a consultation which closes on 26th July. We'll write up and publish our response soon, and we will also be asking you to respond, especially if you are a wifi provider such as a cafe, hotel or library and are concerned about how the Code may affect you.
Shortly after yesterday's meeting, the Secondary Legislation Scrutiny Committee published its report on the Draft Online Infringement (Initial Obligations) (Sharing Of Costs) Order 2012. They conclude that "The House may wish to press the Minister in debate for greater reassurance about whether this scheme will function effectively; and we draw the Order to the attention of the House on the grounds that it may imperfectly achieve its policy objective."
They criticise the £20 appeals fee, the confusion around the position of wifi providers such as libraries, and the laying of the order whilst a consultation was ongoing. The Committee ends by questioning whether the objective of reducing copyright infringement by 75% is achievable.
(The Committee scrutinises secondary legislation and makes recommendations to the House on its findings. The Sharing of Costs Order 2012 requires 'Ofcom to set fees payable by Copyright Owners to ISPs and to Ofcom if they intend to take advantage of a notification scheme in relation to online infringements of their copyright.')
If you are following the Digital Economy Act, it really is worth reading the full report. Some of the more choice comments:
- "We…note that DCMS offer no robust definition of what they interpret as "vexatious" or "frivolous" appeals"
- "we note that paragraph 10.4 of the EM says first that under the Initial Obligations Code libraries offering public access networks will not be considered to be ISPs but in the following sentence the EM says that they can claim that they are ISPs. We find this confusing; and we remain unclear whether or not such institutions will be charged the £20 appeal fee." (The EM referred to is the Explanatory Memorandum.)
- "DCMS should have given the House a much clearer explanation of how this Order fits into the wider policy context."
- "We were also concerned about the unusual situation where DCMS have laid before Parliament an Order that is the subject of an ongoing consultation. DCMS assured us that the consultation relates only to the implementation of the Order and not to the instrument itself. However, if DCMS is not yet clear about how the scheme will be implemented, it raises questions about how can they set the level of an appeal fee that satisfies the terms of the Treasury Rules for full cost recovery"
- "the Committee does not have sufficient information to judge whether £20 is the appropriate amount given that significant parts of the structure of the scheme and the appeal mechanism are still undecided."
- "This Order makes a division of costs based on a large number of currently unknown factors, and those who are required to operate it have made it clear that their cooperation is entirely dependent on financial considerations. This raises questions about whether DCMS's policy objective of reducing online infringement of copyright by 75% is achievable."
Now, this may all sound extremely niche and complicated. And it kind of is. But its also really important. The IOC and the Costs Order are supposed to clarify key substantive issues in the Digital Economy Act. It is telling that 2 years after it passed, some of these are still a cause for concern - including, as the Committee points out, why a £20 appeals fee was decided to be most effective and reasonable option. There are some lessons here - if you rush an Act, based on an inadequate analysis of objectives and how to achieve them, without sufficient scrutiny, then you'll probably have to spend quite a lot of time afterwards trying to clear up the mess.