Here at ORG we spend a lot of our time responding to Government consultations. In the past month alone we have submitted to Government consultations on both Freedom of Information (click for PDF) and Data Sharing (click for PDF). One of the frustrating things about the consultations process is that each Government department has its own individual consultation site, which makes it hard to find the ones we’re interested in.

A few months ago, Harry, who is also one of our excellent volunteers, came up with the idea of collecting them all into one place. We thought this was very clever. In fact, it’s something we mentioned in our response to the so-called “consultation on consultations“.

Harry has been beavering away and has now launched TellThemWhatYouThink.org, which can give you a dose of RSS goodness (among other things) each time new consultations are published. Enjoy!

Petitions have historically been pen and paper affairs. But the popular uptake of the Prime Minister’s and the Scottish Parliament’s e-Petition systems effectively demonstrate that this kind of political engagement resonates in an e-enabled democracy. Most famously, over 1.7m signed up to the ‘road pricing’ petition in 2007. Now the House of Commons (HoC) wants to put e-Petitions on an equivalent footing with written petitions, guaranteeing the petitioner a written response if not necessarily discussion time in Parliament. Your opinion is sought as part of this process.

The inquiry is run by the HoC Procedure Committee: they will present to Government before Easter and expect a response soon after. Your route to participate is a forum (click here for the forum), open until Friday 18 February. We encourage everyone to weigh in with their perspective. Will opening a new communications channel between the people and their Parliament lead to closer and more rewarding relations?

The forum poses three questions:

1. Would you consider signing an e-petition? If so, for what sort of issue?
2. How do you think individual MPs should take part in an e-petitions system?
3. What result would you expect from submitting or signing an e-petition?

There are valid questions over whether the relevant personnel actually respond in good faith to these petitions. But there are also privacy issues this forum fails to address. Asking the public to express their views on the record will generate much politically-sensitive and personal data. This data, given the State’s appalling information assurance record, will almost certainly leak to both the private (e.g. commercial direct marketing, spammers, fraudsters) and public (e.g. security services) sector. For much more analysis of these systemic concerns, check SpyBlog’s excellent post.

The Committee should as part of its recommendations require Parliament’s e-Petitions mechanism be designed with robust legal, technical and cultural protections to ensure against undue intrusion on users’ privacy. Unless these protections are central to the specification for the system, the potential to contribute to the redevelopment of trust between politicians and the public will inevitably be lost (as will yet more of our data).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Over a year since Andrew Gowers made his recommendations for the reform of IP law, the UK Intellectual Property Office has finally announced a date for the first stage of a two-part consultation into modifications to the copyright rules so that private individuals, students and libraries can benefit from improved access to copyright material. A launch event will take place on 8 January at the British Library, and all interested parties are welcome to attend. Email copyrightconsultation [AT] ipo.gov.uk with your name, job title and the company or organisation you represent if you want to be on the list.

In his email inviting ORG to attend, Lord Triesman, the minister for intellectual property, assured us that he is “eager that all interests should make the fullest use of the consultation.” His speech to the Social Market Foundation last month [pdf] predicted much debate around Gowers’ recommended format-shifting exception:

“[This] recommendation raises an interesting point: there are some people who believe that such a change to the law will provide the consumer with a ‘right’ to copy a DVD for example – but that is not the case. Any change in the law will merely provide an exception from infringement for certain limited acts, and will not override any terms and conditions which the consumer agrees to when he or she buys a DVD in the first place.”

Meanwhile, the UK IPO has been quietly implementing Gowers Review recommendation numbers 46 and 47. Thanks to the IPKat for bringing ORG’s attention to the fact that we had missed the deadline for putting forward a suitably open candidate to the new Strategic Advisory Board on Intellectual Property, a panel that will advise Government on IP issues. Since ORG is subscribed to a large number of UK IPO message lists, we were surprised not to be informed that recruitment was underway. So we’ve asked the UK IPO to consider a late application for SABIP from the Open Rights Group.

The Byron Review is an independent review of the risks to children from exposure to potentially harmful or inappropriate material on the internet and in video games. ORG are preparing to submit a response and we’re going to meet Tanya Byron, the clinical psychologist and star of BBC’s House of Tiny Tearaways who’s heading the review, at the beginning of next week. The deadline for ORG to submit a response is 30 November, and we need your help.

Questions for parents
The call for evidence includes questions about the approaches parents are taking to making sure their children stay safe online or make the most out of video games. We’d like to gather the views and experiences of parents out there. Here are some examples of questions we need you to help us answer:

In what ways do parents seek to manage perceived risks of video gaming and how do they feel about their ability to do so?

What, if anything, needs to be changed in order to help children, young people and parents manage the potential or actual risks of going online and what are the pros and cons of different approaches?

You can read and respond to all the questions here.

Questions for everyone
Also, there are some really open-ended questions for everyone, like “What are the benefits of video games for society?” or “What are the opportunities presented by the internet for children and young people?”. ORG needs you to help answer these questions.

How to get involved
The Review document is up on our interactive consultation tool, ready for your comments. Please take a look and add your views. There’s also a wiki page for collecting resources.

The House of Commons Select Committee on Culture, Media and Sport has today released its Fifth Report - an investigation into New Media.

The report endorses performing artists’ call for an extension to the term of copyright in sound recordings (although, as Copyweb points out, this slightly confuses rights in performances with rights in sound recordings).

The Committee’s logic looks simple:

“Gowers’ analysis was thorough and in economic terms may be correct. It gives the impression, however, of having been conducted entirely on economic grounds. We strongly believe that copyright represents a moral right of a creator to choose to retain ownership and control of their own intellectual property. We have not heard a convincing reason why a composer and his or her heirs should benefit from a term of copyright which extends for lifetime and beyond, but a performer should not.”

Gowers did couch his report in economic terms. His idea of balance matched the needs of creators against those of consumers and innovators.

But he didn’t just do this because he was commissioned by the Treasury. He was reflecting the current position of UK law. Current UK law regards copyright as an economic incentive to create, or, as Gowers puts it “a purely statutory right created for the utilitarian purpose of encouraging literary efforts”.

It seems the House of Commons Select Committee is not arguing for an extension to term, it is arguing for a fundamental change to the law, a law for which there are plenty of “convincing reasons” which can all be couched in moral terms.

But it may just as likely be the case that the House of Commons Select Committee on Culture Media and Sport simply doesn’t know its law properly.

The Home Office is holding a consultation into the initial transposition of the EC ‘Data Retention’ Directive on the retention of communications data’. They have published a set of draft regulations, and a shiny PDF detailing the process by which they arrived at these regulations, as well as 6 questions into the application of these regulations. This document is summarised for your use on our wiki.

Will you be affected by these regulations? Do you have concerns regarding the associated costs to businesses, or implications for privacy? If so, please record your perspective on our wiki in order that we can express your concerns. Alternatively, email your testimony to michael[at]openrightsgroup.org. We will gather evidence for the next month or so, before producing a document for submission ahead of the June 11th deadline.

NB These regulations will not be applied to internet access, internet telephony and internet e-mails, as the Directive will not be applied to these services until 2009, following further consultation.

The Gowers Review, commissioned by the government to look at intellectual property law in the United Kingdom, published its final report today. It was commissioned by the Chancellor of the Exchequer Gordon Brown MP so it is expected that the report will hold a lot of weight and that its recommendations will be followed. We are delighted to see an evidence-based approach to reviewing Intellectual Property, and welcome many of the recommendations he makes, some of which we actively lobbied for. The report is 142 pages long so if you don’t have time to read it all, here are some points of interest. (This expands on our earlier press release).

• No extension of copyright term
• Exceptions to copyright
• A private copying exception
• Look into orphan works
• No expansion of software patents
• The possibility of a labelling convention for DRM
• Easier methods for complaints relating to DRM
• Stronger enforcement of IP law
• Fast track registration for trade marks, and Community Patent Review

No extension of copyright term

The music industry lobbied hard to extend the term of copyright for audio recordings. As regular readers will know, we lobbied hard against this happening, and we would like to thank every one who helped us on this as the report recommends that the term of copyright protection for sound recordings remain at 50 years. There is no doubt that this is the right decision - it is supported by all the evidence. But the Government must stand firm in the face of renewed industry attempts to marginalise the Gowers Review.

Matt Black, DJ and one half of Coldcut, said:

“The only people to benefit from term extension would be the giant traditional media groups - artists would actually benefit more from letting music enter the public domain. Extending copyright term for past works amounts to revising the deals made with artists without their consent. Who would sign a deal for a term of ‘50 years or however long we want to make it by lobbying to get the law changed’?

“The conclusion of the Gowers review that copyright term should not be extended is the correct one; we should not follow the lead of the US who have submitted to corporate demands by Big Media. Here we can recognise that music is a key part of our culture, (and, indeed, a key export), that recycling is a natural part of musical creativity and that not extending the existing copyright term will promote the creation of UK music.”

Exceptions to copyright

Calls for additional exemptions to copyright law for “creative, transformative* or derivative works” and for “caricature, parody or pastiche” will be important to both artists and the public alike. We are pleased to hear that libraries will be supported in their preservation work and will be allowed to copy and reformat copyrighted material, including film and sound recordings. This is essential to the health of our cultural heritage and we are delighted that the Chancellor has recognised its importance.

A private copying exception

A recommendation that private users be allowed to copy music from a CD to their MP3 player. When ever I mention this is a conversation I normally get a wonderfully confused look followed by the comment “What, I thought that was legal.” It still currently not legal in the UK, that is until this recommendation if followed and the law is amended.

Back in February when the Open Rights Group was presenting evidence to the All Party Internet Group, Ian Brown said

I am always astonished when I speak at events like this that it is only a small number of lawyers who know copyright law who even realise there is not a private copy exemption in British law. I am sure if you went home and talked to friends and family very few would realise they were breaking copyright law by making copies of their own CDs, for example.

Look into orphan works

The term ‘orphan work’ is used to describe a situation where the owner of a copyright work cannot be identified by someone else who wishes to use the work. Estimates suggest that only 2 per cent of all works that are protected by copyright are commercially available. In 1930, 10,027 books were published in the USA, but by 2001 all but 174 were out of print.77 The British Library estimates 40 per cent of all print works are orphan works.

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

Gowers Report

No expansion of software patents

The Review supports the current position on pure software patents, business method patents and gene patents, highlighting the considerable costs and the negative effects that the USA has experienced where multiple owners each have a right to exclude others, and no-one in effect has the right to develop anything.

Recommendation 17: Maintain policy of not extending patent rights beyond their present limits within the areas of software, business methods and genes.

Gowers Report

The possibility of a labelling convention for DRM

This follows on from the All Party Internet Groups recommendations. The logic behind it is simple, let the market decide if it wants DRM or not, the market only works when the customers know what they are buying, so if there was a simple labelling system for DRM that informed the users that a product has DRM and what restrictions that DRM will enforce, customers can make informed decisions. This will be a very effective way of discouraging DRM. In the event that companies use DRM to create market power, damage users’ software or invade their privacy, the Review recommends that the Office of Fair Trading undertakes investigations.

Recommendation 16: DTI should investigate the possibility of providing consumer guidance on DRM systems through a labelling convention without imposing unnecessary regulatory burdens.

Gowers Report

Easier methods for complaints relating to DRM

DRM often prevents legitimate uses users from doing perfectly legal things. This often means that DRM breaks UK law. For example, the Royal National Institute for the Blind note that Adobe eBooks usually have ‘accessibility’ settings disabled. This prevents the visually impaired exercising their rights to make copies in accordance with the exceptions introduced by the Copyright (Visually Impaired Persons) Act 2002.85 Such exceptions ought to be respected by technology.

In theory any user could make a complaint but as there is no easy way to do so. The Review recommends that the procedures in place for circumventing DRM to allow copying for uses deemed legitimate under copyright exceptions ought to be made easier.

Recommendation 15: Make it easier for users to file notice of complaints procedures relating to Digital Rights Management tools by providing an accessible web interface on the Patent Office website by 2008.

Gowers Report

Stronger enforcement of IP law

This review is the most important critique of intellectual property in the UK of recent years, and we are delighted to see that the majority of its recommendations are sensible and constructive. We welcome the Chancellor’s commitment to tackling counterfeiting and piracy. However, we are concerned that the report seems to make no distinction between large-scale commercial counterfeiting, and small-scale non-commercial acts carried out by individuals. Too often these vastly different acts are conflated by the music industry, and the drafters of any new intellectual property law must make the difference clear to both the courts and the rights holders.

We are concerned that without this clarification, this report will give a green light to the record industry to continue to pursue frivolous court cases. If the police become involved in infringement investigations, as recommended by the Gowers Review, there is a risk that their resources would be diverted from tackling serious crime by an over-enthusiastic music industry keen to prosecute grannies and children for file sharing.

We would urge the Chancellor and to commission an independent study into file sharing, as it is clear that much more research is needed in order to determine how file sharing should be treated legally. Impartial evidence must form the foundation for policy in this area, rather than biased and unreliable information provided by interested parties.

Fast track registration for trade marks

By allowing trademarks to be fast-tracked, Gowers is adopting a more web-like process of comment and review to take place. Taking this together with the recommendation for a Community Patent Review pilot, Gowers is moving some way towards a web-like model of knowledge creation.

Recommendation 25b: The Patent Office should conduct a pilot of Beth Noveck’s Community Patent Review in 2007 in the UK to determine whether this would have a positive impact on the quality of the patent stock.

Recommendation 25b: Introduce fast track registration for trade marks.

The Review proposes that a fast track system (in addition to the normal system) should be available to allow for trade marks to be examined and accepted within 10 days of the application being filed. Once the application is accepted it can be published and thereafter the 3-month opposition period would begin. This fast track system should be accompanied by a higher fee.

Gowers Report

Back when I was in Brussels for EuroOSCON, the open source conference, Tom Steinberg asked me to think of a petition that I would like to see on a new petition site that mySociety was building for 10 Downing Street. I had a bit of a think, and came up with this one:

We the undersigned petition the Prime Minister to create a new exception to copyright law that gives individuals the right to create a private copy of copyrighted materials for their own personal use, including back-ups, archiving and shifting format.

It was a bit of a rush job, but I think it summed up what I wanted to say, and very much fit in with the thinking I was doing at the time about Release The Music.

The petition site launched on 14 November, and to start with my petition was the most popular, then it slipped into second place, and now it’s fourth on the site with 1030 signatories (compared to the hunting petition which has 5437). You have until 26 December 2006 to sign up, so please do pop along and add your name to the list.

The chaps over at mySociety deserve applause for their hard work - it seems like the first 48 hours after the site went live were a lot of hard work as they ironed out wrinkles in the system. The site has been far more popular than I think anyone anticipated, with nearly 500 petitions suggested within the first few days, although I’ll be interested to see how usage levels off when press interest dies down.

However, I can see that this will be a tool that ORG will be using regularly as we step up our campaigning.

And talking of petitions, if you haven’t already signed the petition against term extension on sound recordings, please do. We have 230 names already, but we’d like at least a few thousand more!

Guest post by Jason Kitcat

Summary: This post summarises the newly announced UK e-voting pilots for 2007 and provides action you can take to help stop the pilots.

On October 17th the Department for Constitutional Affairs and the Electoral Commission officially announced a prospectus for electoral pilots in May 2007. Pilots can include:

* Internet voting
* Telephone voting
* Polling place electronic voting machines
* Electronic counting
* Administrative innovations such as early voting

Explicitly excluded are text message voting, digital TV voting and all-postal voting.

Local authorities have been given until 17th November to apply to run a pilot in their area, although it’s clear that at least some authorities were already preparing their applications before the announcement.

This announcement comes at a time when e-voting has been increasingly recognised around the world as a threat to democratic elections. For example:

* The Netherlands has withdrawn e-voting machines by one manufacturer due to vulnerabilities including emitting radio signals which reveal how votes are being cast. The other brand used has been the subject of a widely reported analysis finding multiple major vulnerabilities. more info

* The Canadian province of Quebec has withdrawn all electronic voting machines from elections. This was after a damning report by the province’s chief electoral office into a controversial and problematic election in 2005. more info

* The Republic of Ireland has a moratorium on the use of their e-voting machines after an independent commission found significant problems. more info

* A Japanese municipal authority have shelved e-voting after the result of a 2003 council election was voided. more info

The United States was the first country to make widespread use of voting machines, starting with the lever machines in 1892. Since the 1970s, when electronic machines began to be used, there have been many detailed reports on the fraud, errors and usability problems experienced culminating in the infamous 2000 Presidential election.

Whether allegations can be proved or not, the doubt that electronic voting systems sow in the minds of voters make any outcome open to debate, which ends up undermining our democracy. Because the results are electronic it’s impossible to know what really happened, whether votes were really stored as the voters intended of if they were changed later on.

E-voting makes fraud on an unimaginable scale possible as never before. Electoral fraud is a problem we need to deal with in this country, as recent convictions have shown.

E-voting, unlike e-commerce, is a difficult technical problem where you need to ensure that voters are who they say they are, that they haven’t already voted and can do so secretly. Remote e-voting, from home or work, threatens our secret vote opening electors to vote-buying, peer pressure and threats. E-voting is also incredibly expensive, for a Sheffield pilot the cost was at least £55 per vote cast!

More information about e-voting:

* Communications of the ACM: Special Issue on E-Voting
* Jason Kitcat’s e-voting pages
* Rebecca Mercuri’s e-voting pages
* Louise Ferguson’s e-voting pages
* Voting Machines Pro Con (US site but a useful, balanced, overview)

What can we do about it?

There is easy immediate action we can take to stop pilots happening. A pilot will only be approved if a local council applies to take part. So until the application deadline of 17th November we need to ask councillors to get assurances that your council won’t be applying to run an e-voting pilot.

Brighton & Hove and Camden Councils have already ruled out pilots thanks to people contacting their councillors

The areas most likely to apply are those who have already run an e-voting or e-counting pilot so if you live in one of the following areas it’s vital that you take action:

* Basingstoke & Deane Borough Council
* Bolton Metropolitan Council
* Broxbourne Borough Council
* Chester City Council
* Chester-le-Street District Council
* Chorley Borough Council
* Crewe & Nantwich Borough Council
* Derwentside District Council
* Epping Forest District Council
* Ipswich Borough Council
* Kerrier District Council
* Liverpool City Council
* London Borough of Newham
* Rugby Borough Council
* Rushmoor Borough Council
* St Albans City & District
* Sheffield City Council
* Shrewsbury & Atcham Borough Council
* South Tyneside Metropolitan Borough Council
* South Oxfordshire District Council
* South Somerset District Council
* South Tyneside Council
* Stratford on Avon District Conucil
* Stroud District Council
* Swindon Borough Council
* Vale Royal Borough Council
* Wear Valley District Council
* City of Westminster

Contact your councillor via WriteToThem politely asking them to ensure your council doesn’t waste local tax payers’ money on electronic voting pilots. Remember to do it before 17th November!

Please email me the responses you get.

We will be organising an e-voting event in the New Year and will let you know more about that soon.