The European Union’s plan to regulate the net as if it were TV - Television Without Frontiers - picked up a lot of attention in blogs this week, after the Times covered it.

The basic idea is flawed - TV involves handing a monopoly over spectrum to organisations, so regulating how they use it makes some sense, but there is no spectrum scarcity online, as all you need is a webserver. So the EU limits on local content, advertising intervals and content labelling don’t fit at all.

I spoke about this on the Technorati videoblog last week, and the BBC’s Pods and Blogs show last night. You can hear me about 30 minutes into this show recording.

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

Shaun Woodward, Creative Industries Minister, has launched a consultation on the Creative Economy Programme draft working group proposals. The CEP - a division of the DCMS - was unveiled in November 2005 as “the first step in Government’s desire to make the UK the worlds creative hub.”

Their draft recommendations are now open for public comment, so if you have a spare half hour then please drop them a note pointing out your preferences, especially those parts of the documents you don’t agree with.

I particularly welcome the proposal to collect together in one place all publicly owned audio and audiovisual material so that it is easier to find and use.

The establishment of a programme to digitally link all publicly owned audio, and audiovisual archives, databases and collections, in order to provide: (i) A source of creative inspiration and reference for the creative industries; and (ii) Public value to UK citizens who will be better able to access publicly owned assets and data and collections.

The Creative Economy Programme - Technology

The Competition and Intellectual Property recommendations properly note that the law today offers less value to consumers of copyright materials than they have come to expect.

There also needs to be greater clarity for consumers and users on how they can locate, access and utilise creative content. These findings support the UK All Party Internet Group results of a consultation into proprietary protections on copyrighted materials and concerns among consumers. The report said: “There is a significant mismatch between what consumers believe they ought to be permitted to do with copyrighted material and what the law allows.”

There needs to be a clear read-across from the recommendations of the Gowers Review to the work of Creative Economy Programme (not only this group, but as a whole). The fundamental competition/IP problem appears to be lack of clarity about who owns what and how users can do what and with which and to whom!

The Creative Economy Programme - Competiton and Intellectual Property

Less sensibly the document goes on to recommend using government money to encourage more businesses to use DRM. This proposal should be rejected because in the long run DRM is neither in the interests of business nor the public. The authors are correct in that locking consumers into a single source or outlet should be discouraged by recommending clear standards and interoperable systems, yet this approach does not necessarily require the use of DRM. Open standards are a good thing because they avoid dependence, allowing you to move from one provider to an other with out any extra costs.

For example, digital music providers use different file formats that are incompatible. If you buy a tune from Apple then it won’t tend to work on a Microsoft product. Once a user has invested in a digital music collection with Apple, even if a competitor comes with a better bargain that user is motivated to stay with Apple because his investment will be lost if his collection can’t be enjoyed through competing products. Open standards prevents this situation from happening. Its also worth noting that Microsoft normally profits from incompatibility, but in the specific instance of music files they advocate interoperability because Apple’s iTunes dominates the market and prevents them competing on even terms.

Develop a mechanism to assist SME’s in purchasing and using a specific DRM solution (similar to the BBC’s use of DRM for its online archive).

The development of clear standards, accessible trusted third parties and interoperable, transparent DRMs would encourage consumers to take-up legitimate new business models.

The Creative Economy Programme - Competiton and Intellectual Property

The European Commission have launched a consultation titled “Content Online”. Topics that are asked about include DRM, network neutrality, privacy online, lack of interoperability, protection of public interests, competitiveness, P2P and piracy. Input to this consultation will help shape a Commission Communication on Content Online, due to be adopted at the end of the year. The deadline for replies is 13 October 2006.

As always ORG has a wiki page that we are encouraging people to edit Public Consultation on Content Online in the Single Market.

The House of Lords Science and Technology Committee has established a Sub-Committee, under the Chairmanship of the Lord Broers, to examine Personal Internet Security in the UK. A call for evidence and a press release were issued today.

Areas the Committee will consider include:

• What is the nature of the security threat to private individuals and what is the scale of the problem?

• How well do the public understand the nature of the threat they face?

• What can be done to provide greater personal internet security?

• How much does this depend on software and hardware manufacturers?

• Is the regulatory framework for internet services adequate?

• How well equipped is Government to combat cyber crime?

• Is the legislative framework in UK criminal law adequate to meet this growing challenge?

If you would like participate but don’t feel like witting a full response by your self, ORG has a wiki page that we are encouraging people to edit Personal Internet Security Consultation.