It’s that special time of year again, when we let the ones we love know how we feel about them. Here at ORG towers, we’d like to dedicate this Valentine’s Day to the recording industry. They may not always get it right, but good relationships are about listening, and about giving credit where it’s due. So we’d like to use today to thank the recording industry for listening to their customers over the past year and dropping restrictive DRMs.

Back in the analogue age, a starry-eyed lover would sit up all night making a compilation tape for his one true heart. The ORG email lists have been busy resurrecting this tradition over the past week (thanks, guys!), and the result is this - the ORG Valentine’s Day love mix. Each one has been suggested by an ORG supporter - and each one has a link to where to download the track DRM-free. Easy listening indeed.

Open Rights Group Valentine’s Day love mix

• Gary Numan and the Tubeway Army, Me! I disconnect from you
  Available from amazon.com at $0.99
• Clor, Dangerzone
  Available from iTunes Plus* at £0.79
• Chris Rainier & De Wet Van Der Spuy, You’re A Distant Voice On The Radio
  Available from bleep.com at £0.99
• Datblygu, Y Teimlad (”The Feeling”)
  Available from amazon.com at $0.99
• Cinematic Orchestra, All That You Give
  Available from play.com for £0.70
• James, Laid
  Available from amazon.com at $0.89
• Jeffrey Lewis, Don’t Let the Record Label Take You Out To Lunch
  Available from Playlouder and eMusic as part of a monthly subscription deal
• Kraftwerk, Computer Love
  Available from amazon.com for $0.99
• Joy Division, Love will tear us apart
  Available from amazon.com at $0.99
• Dionne Warwick, You’re Gonna Need Me
  Available from iTunes Plus* for £0.79
• Reel Big Fish, Sell Out
  Available from amazon.com at $0.99
• Ulrich Schnauss, Clear Day
  Available from bleep.com at £0.99
• Queen, Who wants to live forever?
  Available from amazon.com at $0.99

*Note that to get the tracks we’ve suggested from iTunes Plus DRM-free, you’ll need to have an updated version of iTunes

Finally, a note of warning to UK residents - do not try making this compilation at home. Why? Because despite the fact these tracks are DRM-free, creating the compilation on a USB stick or CD would be in breach of the civil provisions of UK copyright law. If you’re interested in seeing this law changed, you’re in luck - the UK Intellectual Property Office are consulting on changing the law on “format shifting” right now. Help us respond here. And Happy Valentines Day.

Yesterday, BBC Director General Mark Thompson and other BBC representatives appeared in front of the House of Commons Public Accounts Committee. During the meeting, Dr John Pugh MP tackled him about the iPlayer. You can watch the full Public Accounts Committee meeting here (the talk of iPlayer starts about 10 minutes in).

During the meeting there is discussion of iPlayer’s total cost to the licence fee-payer - the BBC representatives are unable to give a figure, but start the bidding at £20m, excluding staff costs. Thomson gives incorrect information - that Mac and Linux versions of iPlayer have the same functionality as Windows versions - and has to change his evidence at the end. Perhaps it was this confusion that prompted Dr John Pugh MP to follow up the encounter with a letter direct to Mark Thomson today discussing platform neutrality in greater detail. A copy of this letter has been passed to the Open Rights Group. Pugh writes:

“The more fundamental issue is [iPlayer's] failure to apply open standards and be sufficiently interoperable to work fully (stream and download) on more than one platform. The BBC is funded by licence players not all of whom have or chose to use a computer running Windows XP or Vista. By guaranteeing full functionality to the products of one software vendor it is as a public body handing a commercial advantage to that company - effectively illegal state aid!”

Dr John Pugh MP has previously accused the UK government of illegal state aid by excluding Linux and Mac Users from government services such as the Department of Work and Pensions online benefits system.

The BBC could avoid accusations like this if it eschewed DRM and instead employed standard formats. The BBC has made the wrong decision about DRM in its on-demand services. DRM threatens the future of public service broadcasting in the on-demand world and the BBC Trust and OfCom should assess the long-term economic case for the way the BBC buys rights to exhibit the programmes it commissions.

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.

A year ago today, the Gowers Review was released to the public. The Government accepted all of the 54 recommendations it made, and experts welcomed the balanced approach it took to intellectual property law in the digital age, since it matched greater flexibility with tougher measures on enforcement (although at the time, we flagged its failure to distinguish between large-scale commercial counterfeiting, and small-scale non-commercial acts carried out by individuals, now a live issue with current IPRED 2 negotiations). But one year on, things don’t look quite so rosy.

I interviewed Andrew Gowers a few hours after the release of the Review. He said that enforcement and flexibility were “two sides of the same coin”. The Review states:

“Copyright in the UK presently suffers from a marked lack of public legitimacy. It is perceived to be overly restrictive, with little guilt or sanction associated with infringement.”

Gowers’s suite of recommendations attempted to redress this situation by re-instating the balance in copyright law. So how has Government performed in implementing Gowers’s recommendations?

In April this year, changes to the Copyright, Designs and Patents Act came into force that allowed Trading Standards to enter premises and seize goods and documents they believe to be involved in copyright infringement. These changes were backed by £5m in new funding for Trading Standards. There is little question that this contributed to the arrests of webmasters at TV-links and Oink later in the year.

In May, the UK Intellectual Property Office (UK IPO) quietly delayed its consultations on changes to the law that would allow a private copying exception, an exception for researchers, for libraries and educators, and for those creating works of parody or pastiche out of copyrighted works.

In November, at an event hosted by the Social Market Foundation, the recording industry revealed plans to cooperate with ISPs and launch a “3 steps and you’re terminated” regime that would cut off the internet connections associated with people believed to be sharing copyrighted works unlawfully. This industry cooperation is recommendation 39 of the Gowers Review, and it looks to be on schedule.

A call to the UK IPO yesterday confirmed that consultations on the exceptions to copyright law have been further delayed, and will now not be seen until the New Year. These are consultations, the first baby step in implementation, and it’s unlikely that any actual legal amendments will be seen until 2009 at the earliest.

What’s more, when the Open Rights Group met with culture minister Margaret Hodge and senior officers from DCMS and the UK IPO in October, it was revealed that actions to implement recommendation 11, that copyright should be amended at the European level to create an exception for transformative works, had not even been timetabled.

If enforcement and flexibility are two sides of the same coin, then one year on it looks like the toss has definitely gone to enforcement. This means that Government is in effect making the situation worse: concentrating on strengthening enforcement measures while failing to address the inherent inflexibility of copyright law that Gowers identified as a key factor in the general public’s disrespect for the law.

It’s up to all of us who submitted evidence to Gowers in 2006 to keep the pressure up on Government to make good on their promise to reform copyright for the digital age.

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.

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.

On Tuesday, John Pugh MP led an adjournment debate on IT software procurement, where he accused the UK government of excluding Linux and Mac Users from government services such as the Department of Work and Pensions online benefits system.

“The Government are spending public money, and in doing so, it is difficult to see how they are not also breaching state aid rules and providing illegal state aid. If someone cannot access benefits online without using a Windows-based computer, as is currently the case, I do not see how the Government can be doing anything other than involving themselves in illegal state aid.”

Angela Eagle MP, speaking on behalf of the Treasury, neatly side-stepped Pugh’s accusations, stating that “the Government must… provide software that is relevant to the computers that most people in the UK have” and that avoiding market distortion was “up to the people contracting”. The debate is reminiscent of concerns about the BBC’s Microsoft-only iPlayer raised by the Open Source Consortium, the Free Software Foundation, the Open Rights Group and many others over the Summer.

Also during the debate (well-spotted, Glyn!) it looked like Andrew Miller MP might have raised the spectre of Microsoft’s failed OOXML standard, when he asked:

“Would it not help in the quest for openness if the British Standards Institution were to follow the lead in other parts of the world and make open source XML (sic) one of the standards to be applied throughout the world? It would mean that people working outside the Microsoft sphere could have access to the code, and it would help the world in future-proofing big projects such as the British Library archives.”

You can read a full transcript of the debate 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.

DRM protesters Defective by Design braved the drizzle today to make their feelings known about the BBC iPlayer. I went down to join in, and found Hazmat-suit clad protesters calling for the BBC to reconsider its decision to use Microsoft DRM on the new online catch-up service, released in beta at the end of last month. You can see more photos of the protest in the Open Rights Group Flickr photo pool.

The 10 Downing Street iPlayer petition now has over 15,000 signatures. If you haven’t already signed - hurry: there’s less than one week left before it closes!

Update: Digital Lifestyles interviewed the OSC as they emerged from meeting the BBC Trust. Listen to the recording, which discusses the process planned to bring platform-neutrality to iPlayer.

Members of the Open Source Consortium met with staff at the BBC Trust yesterday to discuss their concerns about the iPlayer, due to launch in beta on Friday. And although the OSC left the meeting with reassurances that the Trust are committed to making the iPlayer cross platform, it is still unclear when solutions for Linux users will be rolled out. Speaking to ORG, the OSC said that the meeting was unlikely to deter them from taking their complaints to the European competition authorities.

The BBC could avoid all this mess if it eschewed DRM and instead employed standard formats. Sources say this is unlikely, since the BBC is under pressure from rightsholders to “protect” content it lets license fee payers download. But in other areas, like the recording industry, rightsholders are beginning to see how offering their wares without DRM can be good for business. The BBC should be leading the way on this issue, not running to catch up.

DRM is not a disincentive to downloading - it’s only ever a barrier to uploading. And given that, for example, Windows Media player DRM was cracked as recently as last week, it is not a very effective barrier at that. What’s really bizarre about the BBC’s employment of DRM for the iPlayer is that their programmes can already be downloaded using PVRs that receive free-to-air digital transmissions. Media convergence means there is no practical difference between unencrypted satellite, free-to-air, DAB or the internet in terms of control of content.

If you haven’t signed the iPlayer e-petition, do it now: news sources are beginning pick up on the growing number of people who feel they are affected by this issue. ORG’s response to the iPlayer consultation is here, and our work on DRM for last year’s APIG inquiry is here.