Last week’s Social Market Foundation event - ‘Intellectual Property Rights and Consumer Rights’ - despite the title’s implied concern for balance, showed disregard for consumers and promoted rights holders’ interests. The minister responsible for UK-IPO spoke of the need for balance in reforming Britain intellectual property regulation but Government’s actions do not yet evidence this commitment. The BPI’s trail for a UK version of France’s ‘3 strikes’ approach to p2p infringement also gave cause for concern.

The Parliamentary Under-Secretary for the Department for Innovation, Universities and Skills’, Lord Triesman, broad-ranging speech (link to PDF download) took in the usual policy concerns of technological developments, new business models, traffic in infringing content and consumer awareness of IPR. However, a year on from the Gowers Review recommendations for flexible copyright regulation, including a ‘format-shifting’ exception to legalise the near-universal practice of transferring CD recordings to mp3 players, seem no closer despite the rapid allocation of funding to ‘anti-piracy’ enforcement. Ian Brown, billed as the event’s agent provocateur, slammed the speech for its anti-competition and anti-consumer stance. For a more balanced approach to these issues, Ian’s slides are available for download.

In the panel discussion that followed, Richard Mollett flagged moves towards a voluntary agreement between the BPI and ISPs to reduce copyright-infringing traffic, similar to France’s ‘3 strikes’ model. He expects an initial warning from the ISP that infringing traffic is associated with a particular account will halt 75% of infringers. If suspicious activity continues then account suspension is the next step, before the final sanction of account termination. Even assuming there will be adequate appeal procedures, although no assurances were given, this mechanism will harm consumer interests unless systems for identifying protected content operate perfectly. Regardless, and fortunately this point was recognised by all parties to the discussion, cutting off internet access is very much the ‘nuclear option’. The proportionality of this approach still requires broader public discussion given internet access may soon become a basic need, comparable to utilities like water and electricity.

The resounding message of the Olswang’s and Greenberg Traurig’s Friday Open Source Summit (PDF) was that software patents are bad for business. Bruce Perens’s message against software patents and that the European Patent Litigation Agreement (EPLA) should not become a reality was echoed throughout the day by numerous speakers to be restated once again during Simon Phipps closing keynote. The main argument was that these patents hinder software development because of their high transaction costs, and that Europe can maintain advantages by not allowing these patents (available in the US and elsewhere) on its shores. Naturally enough, there wasn’t anyone calling for the abolition of patents, only as they relate to software.

But software patents weren’t the only theme of the day.

Bruce Perens - Opening keynote

Perens is one of a handful of early and influential ‘founders’ of free and open source software (FOSS) and he gave an entertaining and informative overview of the benefits of FOSS and how they fit in with a company’s business model. The key for any business is to look at what is the “differentiating software” — the model or software that makes the business different from others. For non-differentiating software open source is key as it can help control costs while delivering a robust architecture.

Beyond his call against software patents, he suggested that the UK and Europe could use a law requiring open source software to at least be considered for (presumably) public purchasing.

Heather Meeker, of Greenberg Traurig, gave an excellent overview of the legal side of FOSS licensing.

Jim Markwith of Microsoft concentrated on issues surrounding open source in a mergers and acquisition (M&A) context. Often one of the issues is finding inappropriate (copied w/o permission) code in FOSS projects. Many of the problems that he sees in the M&A role at Microsoft are a result of poor IP management and not open source per se. As regards software patents, he only stated that Microsoft takes a different position than the other speakers.

On the GPLv3, he did note that “GPLv2 has built up a legal understanding over the past fifteen years and now v3 means that they don’t have that understanding.”

Nigel Swycher, Olswang and chair of the event, and Kat McCabe, Black Duck, both further reviewed FOSS within the M&A context. Black Duck makes a product that reviews and audits software code to make sure that it does not contain illegally copied code.

In the afternoon Jan Wildeboer, Red Hat, and Pieter Hintjens, iMatix, both further made the case against software patents and open source business models. Hintjens had the notable quote that the GPL is “an ‘ultra capitalist tool’ because it allows dual licensing a commercial option plus the GPL version.”

Dietmar Tallroth, Nokia, discussed some of the practical aspects of managing open source software through his experiences as the legal director of open source and licensing at Nokia.

David Wood from Symbian gave an overview of open source and smartphones.

John Powell, Alfresco Software, got back to one of the main themes of the conference. From the conference site:

The software development and licensing landscape has changed, and the US are perceived to be leading the way. The Summit seeks to address this imbalance.

Powell blamed the close ties and use of the English language for waves and waves of US commercial interests following a proprietary licensing model for crushing both the UK’s indigenous software industry and free and open source software development. In short, because of the lack of a language barrier, UK companies and public sector organisations bought into the FUD against FOSS and thus never got off the ground. Now however is the time for the pendulum to swing the other way and for a UK FOSS community and use to dramatically take off.

Graham Taylor, Openforum Europe, discussed open standards and mentioned that in his opinion the UK government has been largely absent when compared to its EU counterparts at European meetings on open standards, open source.

Michael Robinson, Deloitte, covered how they saved large amounts of money and introduced greater stability by introducing open source into the Oyster card system for London’s transport.

Simon Phipps, Sun Microsystems, closed the day with a slight restatement of the day’s theme against software patents. He wasn’t against them per se, however he thought that their granting should be greatly tightened so that they were very hard to get. There was still some room for their use if limited in this way.

He did however note that trade marks are the next wave of legal problems for the FOSS community and that this would be the most troublesome area moving forward. In addition, he gave a load of practical advice on using FOSS within a company and how to relate to the greater open source community.

The day was well attended by a diverse set of lawyers, academics, developers and others. A definite tip of the hat to Olswang and their partners on the event Greenberg Traurig for the day.

My interview with Sean Daly at Groklaw went online this morning:

Q: Now, let’s talk about DRM for a moment. It seems that the current situation the BBC finds itself in with the iPlayer is largely due to the choice to use DRM. My understanding is that without DRM, the rights holders of third-party producers of television programs which are leased to the BBC would withold their programs from online distribution. What do you think is the solution to this? Should those programs just be taken offline?

Becky Hogge: OK, so you’re right to identify the problem; in fact you’ve got it in a nutshell. The BBC is having to negotiate with the people who own the rights in the programs that it broadcasts, because the BBC doesn’t own all those rights. For a start, it’s bound to use 25% of its commissioning budget to commission programs from independent producers, or “indies” as they’re called in the industry. And those indies, most of them, keep the rights, and, like you say, lease them to the BBC for broadcast in a certain window.

Equally, some of the BBC content that the BBC produces itself has got all sorts of complicated rights issues associated with it. That’s when the actors, and the cameramen, and all the people that go into it don’t necessarily sign over all the rights to the BBC in perpetuity. So this is a really, really difficult problem for the BBC. But at the Open Rights Group, we think that the BBC needs to be tackling this problem head on. Because if it doesn’t, it’s going to keep having to use digital rights management. And digital rights management is slowly but surely going to eke away the way it can fulfill its public service remit.

This isn’t just about a small group of Linux users who can’t access iPlayer and are getting stroppy about it. Using DRM is going to push the BBC into more and more of a commercial environment. And what’s more, DRM is always going to lead to the kind of platform neutrality issues that the BBC is experiencing now. If you think about it, Apple iTunes, which uses the Apple DRM, is already being accused of distorting the market by regulatory bodies inside the EU. And the BBC is always going to face these issues. Now, what it could do is it could start now to think creatively about how it’s going to negotiate with indies and other rights holders in the future.

Read the interview in full here. This morning, I’ve been at the BBC Future Media and Technology building in White City, recording a podcast for BBC Backstage together with some of the technical team behind iPlayer and Mark Taylor from the Open Source Consortium. I’ll post a link to that as soon as it’s up.

Update: Here’s the BBC Backstage podcast.

Today, and following this report in the Guardian, the Federation Against Copyright Theft (FACT) reported the arrest of the proprietor of tv-links.co.uk:

“A man aged 26 from Cheltenham was arrested on Thursday (18th October) in connection with offences relating to the facilitation of copyright infringement on the Internet. The arrest came during an operation by officers from Gloucestershire County Council Trading Standards Service working with investigators from the Federation Against Copyright Theft (‘FACT’) and Gloucestershire Police. The man has been released pending further enquiries.

“The site, TV Links (www.tv-links.co.uk), was providing links to illegal film content that has been camcorded from within a cinema and then uploaded to the Internet. The site additionally provided links to TV shows that were also being illegally distributed.”

TV-links.co.uk is a website containing a list of links to downloads of TV programmes and films, hosted on other websites. The site is no longer available, but the Internet Archive’s Wayback Machine has preserved this copy from July 2007.

The involvement of local Trading Standards services in a copyright infringement case presumably follows from the new powers and resources granted Trading Standards in April this year, after Andrew Gowers recommended they be given the power to enforce copyright infringement laws in his 2006 review of intellectual property law.

Now seems an apt moment to reflect, therefore, on the progress of some of Gowers’ other recommendations. While at least one of the report’s enforcement recommendations has already made it into the light of day (and onto the streets of Gloucestershire), all of his recommendations around flexibility remain on the drawing board. A quick call to the UK Intellectual Property Office this morning confirms that consultation around implementing the recommendations for format-shifting (recommendation 8), library use (recommendation 10) and parody and pastiche (recommendation 12), originally expected in May, still has no firm date, but could happen “towards the end of November”.

But back to enforcement. The Open Rights Group spoke with Gloucestershire police this afternoon, and their spokesperson confirmed that the man referred to in the FACT press release had been arrested under suspicion of a violation of Section 92 of the Trademarks Act (”Unauthorised use of trade mark, et c. in relation to goods”), which reads:

(1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor—

• applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark
• sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or
• has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).

(2) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor—

• applies a sign identical to, or likely to be mistaken for, a registered trade mark to material intended to be used—
  • for labelling or packaging goods,
  • as a business paper in relation to goods, or
  • for advertising goods, or
• uses in the course of a business material bearing such a sign for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods, or
• has in his possession, custody or control in the course of a business any such material with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).

Until the police have concluded their investigations, the exact connection between this piece of law and “the facilitation of copyright infringement” will be up for speculation. You can read some speculation here, here, here and here. We will keep on this story and keep you updated.

The Open Rights Group does not condone the download of copyright-infringing materials. However, sites like tv-links.co.uk wouldn’t exist (and according to Alexa’s “daily reach” measure, receive more traffic than channel4.com) if there wasn’t demand for the material, demand the industry is not meeting. Perhaps if industry released their content online in a timely manner, and for a reasonable price, it would profit from this lust for downloading. Indeed, as reported over at Techcrunch, today’s news comes hot on the heels of an announcement of serious “seven-figure” funding for Tape it Off the Internet (Tioti.com), who plan to invest the cash in extending the service to other platforms, including TV download services from household-name broadcasters.

The Open Rights Group, in collaboration with 01zero-one and funded by the London Development Agency, is beginning an exciting new research project, examining how the internet enables creative entrepreneurs to develop innovative business practices by being more open with their intellectual property. Creative Business in the Digital Era will examine new business models and the wider context in which they sit, culminating in one day-long and two evening courses at which we will share our findings.

In the fine tradition of eating our own dogfood, we are developing the course out in the open, and under a Creative Commons licence, using a wiki. But we need your help. We have only a couple of months to do our research, so we need you to help us shape of the course, figure out the format of the case studies, and carry out research. Time is genuinely tight - we must complete all the course materials by the beginning of February, ready for delivery in March.

Right now, this week, we need your ideas. What open-IP business models have you come across? And who is experimenting with opening up their IP? We’re thinking of examples like Radiohead letting their fans decide a fair price for the digital version of their new album. Or Magnatune’s use of Creative Commons licences to allow music buyers to sample songs before they buy. Or writers like Cory Doctorow, Lawrence Lessig and Tom Reynolds giving away their books for free under a CC licence whilst also publishing and charging for print copies. Or websites that produce an API so that others can build third party applications using their data, such as Google Maps. Once we’ve gathered a list of examples, we will pick a few case studies to focus our research on.

We also need to know what you would want to know about these business models and examples if you were thinking of opening up your information to the world. What questions would you ask? What would you be concerned about? What would you be excited to know more about? Getting answers to these questions will be essential to ensuring that our case studies are meaningful and useful.

This project is about the real world, not theory, and we want people to walk away from the course with a good understanding of what others are doing and feeling inspired to do something innovative themselves. Which means we also need to know about failures. Who has tried an open-IP business model and failed? What did they do? Why didn’t it work? It’s easy for us to be optimistic about the future of such businesses, but we’ve already drunk the kool-aid. In order to convince those sitting on the fence, we need to honestly examine what can go wrong and what can be done to ensure that people pursuing an open IP business don’t fall into the same traps.

If all this sounds exciting to you, and you want to get involved, then there are several things you can do:

1. Sign-up for a free account on the wiki and get cracking!
2. Join the ORG-Discuss mailing list and contribute to the conversation there.
3. Save relevant links to Del.icio.us using the tag org-cbde
4. Follow our Twitter stream

We’re really excited about starting this project, and we really hope you’ll join us on the wiki.

Yesterday, the BBC announced that a cross-platform “streamed” version of its on-demand service the iPlayer would be available by the end of the year. According to this report from BBC News Online:

“At the end of the year users of Windows, Mac or Linux machines will be able to watch streamed versions of their favourite TV programmes inside a web browser, as well as share the video with friends and embed programmes on their own websites, sites such as Facebook and blogs.”

If the idea sounds vaguely familiar, that’s because back in March, when the BBC Trust put the iPlayer out for consultation, the Open Rights Group gently suggested that streaming was a far better short term solution to on-demand services than DRM-restricted market-distorting technologies that would serve to widen the digital divide. We observed that:

“Such an approach is cheaper, lower risk, more inclusive (it works for example in libraries) and more flexible than the current BBC proposal. It may not appeal to consultants looking to make huge profits at public expense however, precisely because it is simple, clean and low-risk.

“It does not, of itself, address the desire for users to obtain content in DRM-free downloadable form for any platform, but it provides a basis until the BBC is able to identify more open solutions for the download of content, preferably ones which do not depend upon DRM… The Open Rights Group considers it is quite possible that, as already is clearly happening in the music world, the use of DRM will soon be abandoned by the market itself.”

You can read our full submission to the BBC Trust here. But enough of the I-told-you-so-s. Is yesterday’s move good news for licence fee payers who do not use Windows? Well, not really. Although they will now be given online access to content their licence fee has helped pay for, there are still fundamental inequities between users on different platforms, and this still leaves the BBC deforming the market in favour of Microsoft DRM and Windows. People on Macs, Linux, PDAs and other handheld devices are still losing out on all the features that make the downloadable iPlayer different from, say, the kind of streaming that the BBC has done for years with the RadioPlayer.

And that’s not all. Ashley Highfield, director of Future Media and Technology at the BBC has now indicated that the full, downloadable iPlayer may never be made available to those who do not use the latest versions of Windows. When the iPlayer launched in June, Highfield was quoted as saying:

“I am fundamentally committed to universality, to getting the BBC iPlayer to everyone in the UK who pays their licence fee.”

But yesterday, he admitted:

“We need to look long and hard at whether we build a download service for Mac and Linux. It comes down to cost per person and reach at the end of the day.”

The BBC could avoid all this mess if it eschewed DRM and instead employed standard formats. The Open Rights Group believes that the BBC cannot be truly public service in the 21st century until it gives the British public access to the programmes that they have paid for without DRM or restriction. This is not a technology problem, but cuts to the heart of what the BBC is for and how it makes and commissions programming. ORG challenges the BBC and the BBC Trust to re-examine the BBC’s commissioning and rights frameworks with the goal of creating public service content, owned by the public and available to all.

Update: The BBC Trust have hit back at the Future Media and Technology team, reiterating their condition that the entire service must be platform neutral and adding “we would expect BBC management to come back to us if they are planning any changes to iPlayer.” Read the full report here.

…And it’s pretty lacklustre. Over 16,000 people signed the petition, demanding that the BBC stop excluding license fee payers who don’t have computers running Microsoft software from its new on demand TV service. But Number Ten are apparently satisfied with the BBC Trust’s commitment that the iPlayer would be cross-platform “as soon as possible”, and the six-month review process the Trust has put in place:

“…the Trust conducted a Public Value Test on the BBC Executive’s proposals to launch new on-demand services, including BBC iPlayer. This included a public consultation and a market impact assessment by Ofcom. In the case of the iPlayer, following the consultation, the Trust noted the strong public demand for the service to be available on a variety of operating systems. The BBC Trust made it a condition of approval for the BBC’s on-demand services that the iPlayer is available to users of a range of operating systems, and has given a commitment that it will ensure that the BBC meets this demand as soon as possible.”

As the Open Source Consortium have argued, what the Trust’s provisions fail to acknowledge is the significant competitive advantage this lag time gives the purveyors of the only operating system currently supported by the iPlayer - Microsoft.

The Open Rights Group believes that the BBC should release content that has been bankrolled by license-fee payers in standard formats that are accessible to all.

Read the full petition response here. Read our submission to the BBC Trust’s consultation on on-demand services here.

Back in May, we reported on the House of Commons Culture Committee’s misguided decision to recommend that the term of copyright in sound recordings be extended. The recommendation come despite compelling evidence that as well as harming consumers and follow on innovators, such a move would bring no benefit to the majority of UK recording artists and would result in a net loss to the UK economy. It also came couched in language that betrayed a basic misunderstanding of copyright law on behalf of the Committee.

Today the Department of Culture, Media and Sport have responded to the Culture Committee, and the good news is they’ve rejected the recommendation to extend term. From the official response:

“The Government appreciates the work of the Committee and the deliberation it has given to thissubject. As the Committee noted, the independent Gowers Review also considered this issue in detail and recommended that the European Commission retain a term of protection for sound recordings and performers of 50 years. The Review undertook a detailed analysis of all the arguments put forward, including the moral arguments regarding the treatment of performers. It concluded that an extension would not benefit the majority of performers, most of whom have contractual relationships requiring their royalties be paid back to the record label. It also concluded that an extension would have a negative impact on the balance of trade and that it would not increase incentives to create new works. Furthermore, it considered not just the impact on the music industry but on the economy as a whole, and concluded that an extension would lead to increased costs to industry, such as those who use music – whether to provide ambience in a shop or restaurant or for TV or radio broadcasting – and to consumers who would have to pay royalties for longer. In reaching such conclusions, the Review took account of the question of parity with other countries such as the US, and concluded that, although royalties were payable for longer there, the total amount was likely to be similar – or possibly less – as there were fewer revenue streams available under the US system.

“An independent report, commissioned by the European Commission as part of its ongoing work in reviewing the copyright acquis, also considered the issue of term. It reached the same overall conclusion on this matter as the Gowers Review.

“Taking account of the findings of these reports, which carefully considered the impact on the economy as a whole, and without further substantive evidence to the contrary, it does not seem appropriate for the Government to press the Commission for action at this stage.”

You can download the full response here. It’s worth a read in full, as the Committee’s report, on the whole and apart from the recommendations regarding copyright term, made some good recommendations for New Media and DCMS’s responses are generally good too.

As the BPI point out in today’s press, this means that they will have to take their fight for copyright term extension to Europe without the support of the UK government. This is significant, since the UK government is likely to have a disproportionately loud voice on this issue both because it is home to the most lucrative recording industry in Europe and because it has taken the time to review this issue in detail.

This morning sees the release of The Power of Information, an independent review, commissioned by Hilary Armstrong MP at the Cabinet Office, into “state- and citizen-generated information”. The report, authored by Tom Steinberg (MySociety) and Ed Mayo (National Consumer Council), calls for the government to thoroughly examine the economic case for keeping some public sector information locked into trading funds (like the Ordnance Survey).

The review recognises that the money generated from trading funds selling on public sector information is tiny compared to the wider value of public sector information to the economy as a whole. Moreover, the reivew suggests that citizens, communities and NGOs would benefit if all public sector information was made available in open formats under licenses that allow innovative re-purpose and reuse.

The Government will respond to the review “in due course”. Let’s hope they see the wisdom in its call for a beginning of evidence-based policy in this area.

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.