So I’ve just returned from Lugradio Live 2007, where there seemed to be a lot of enthusiasm for the work ORG has been doing over the last year. Thanks to Glyn and Richard for their dedication in manning the ORG stall. Together we met a lot of ORG supporters, and found a few more!

There was much concern over the BBC’s soon-to-launch iPlayer and its use of Microsoft DRM, to the exclusion of Linux and Mac users. You can read ORG’s submission to the BBC Trust (pdf), and there’s still time to sign this e-petition and draw Downing Street’s attention to the situation.

It’s hard to know how to get the BBC to listen to the concerns of Linux and Mac users on this issue, so please leave suggestions for further action in the comments, and watch this space.

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

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

To mark today as the global ‘Day Against DRM’, inspired by Michael Geist, here’s a list of 30 easy things we can do about DRM.

1. Write to your local Member of Parliament. Letters (which are better than email) from just a handful of constituents are enough to get the attention of your local MP. Contact information and further advice here
2. Write to the Prime Minister. Contact information available here
3. Write to Tessa Jowell, Culture Secretary, especially if you live in her Dulwich and West Norwood constituency. She’s in charge of the Department for Culture, Media and Sport, whose contact details are here
4. Write to Shaun Woodward, Minister for the Creative Industries and Tourism, especially if you live in his St. Helen’s South constituency. Contact details here
5. Write to David Lammy, Culture Minister, who is responsible for the arts market, especially if you live in his Tottenham constitutency. Contact details here
6. Write to David Sainsbury, Baron Sainsbury of Turville , a major philanthropist and parliamentarian who specialises in Science and Innovation. Contact (and background information) here
7. Ask each political party where it stands on copyright. Copyright policy could prove to be a divisive issue at the polls - ask each political party for their views on the issue.
8. Write to your MEP; much of our copyright policy comes from Brussels and the EU, so worth informing your representative at the European Parliament that their legislation is dead important. Find out who your MEP is here
9. Write to the CBI - ‘the voice of business’ - contact details here
10. Write to your local councillor. The more politicians made aware of the ills of copyright the better. Find your local represenative here
11. Write a letter to the Foreign Office on our international copyright position. Our government should be lobbying the World Intellectual Property Organisation not to simply replicate US-style copyright reforms, but rather to consider different approaches to copyright - anti-circumvention measures in particular - that do not harm the public domain for the benefit of private interests.
12. Write to the Libraries and Archives Copyright Alliance - a great ally in our fight - and support their support their position by providing examples of problems copyright has caused to their local and university/school libraries. Contact information here
13. Write to the Office of Fair Trading. The combination of DRM and anti-circumvention legislation raises significant marketplace competition concerns. The OFT must become engaged on this issue by advocating pro-competitive and pro-consumer reforms. Moreover, it should be investigating cases of alleged abusive use of DRM. Contact information here
14. Write the National Consumer Council. The use of DRM raises numerous consumer concerns, potentially requiring specific consumer protection provisions and labeling requirements. The NCC are well aware of this issue in terms of data protection and consumer privacy online; tell them your personal experiences of being disadvantaged by DRM. Contact info here
15. Write to the Information Commissioner’s Office to ask for their support in protecting your personal privacy against DRM. Contact info here
16. Raise the issue with your local library. The library community has been very engaged on copyright and will hopefully be a vocal stakeholder for any future reforms. At the local level, libraries can be encouraged to establish copyright policies that fully support user rights and to educate the local community on important access issues. Check your local council’s website for contact information for your nearest library.
17. Raise the issue with your local school. If you are in school or have children currently in school, inquire how the school addresses copyright issues. Does it take full advantage of user rights? Is it aware of how the education exceptions may be limited by anti-circumvention legislation?
18. Sign a petition. For example, there is a petition calling on Bono to help join the campaign against DRM. Sign up here.
19. Support the Open Rights Group. ORG is a fledgling NGO formed to protect your digital rights through lobbying and media awareness. Join our discussion list and support us here
20. Buy online DRM-free alternatives. The copyright lobby argues that DRM is a pre-requisite to offering digital content online, yet there are many DRM-free online music services. For example, eMusic, the largest such service, is now the second largest online music service worldwide.
21. Support music labels that offer their music without DRM or copy-controls. Typically the major labels prefer DRM, whilst independent labels are less protectionist. Try, for example, bleep.com
22. Ensure that your local retailer will accept returns on DRM’d products. Many retailers sell DRM’d products without altering return policies to account for the fact that the products may not function as expected. Raise this with your local retailer and encourage them to adopt liberal return policies for DRM’d products.
23. Ask your ISP what it is doing to stand up for your rights. Britain’s Internet service providers play an important role in defending user rights by only disclosing subscriber personal information with a court order, informing subscribers of requests for their personal information, and by lobbying for an expanded fair dealing provision. Ask your ISP for its policies on these issues.
24. Participate in a local meeting on copyright. There are a growing number of local “meetup” style meetings that bring together citizens concerned with balanced copyright. If there is a meeting group in your area, go. If not, get one started.
25. Support more balanced copyright positions from artists and creator groups. Many artists and creators are increasingly abandoning policy positions that favour U.S. style reforms and instead embracing a more balanced approach. If you are a musician, tell the Musician’s Union or British Music Rights your perspective.
26. Use Creative Commons licensing. Creative Commons, which adopts a “some rights reserved” approach to copyright provides an exceptional (and exceptionally easy) method of supporting both copyright and access. More information here
27. Read licence terms. Increasingly contracts are being used that limit or eliminate user rights. Until legislation blocks the use of such terms, consumers should proactively read licence terms and reject those that unfairly limit their user rights.
28. Track media coverage of copyright. Until recently, media coverage on copyright rarely questioned the sound bites from the copyright lobby. That is changing, but Britain’s media should be challenged when it fails to do so. Letters to the editor or a op-eds are a great place to start.
29. Educate yourself. There are lots of great sources on the implications of copyright reform…
30. Educate others. Once you know more about copyright reform issues, tell others. Educate friends, family, and co-workers. Copyright impacts us all.

And check this brand new site for the latest news and updates on the anti-DRM campaign - drm.info

At a fringe event at the Labour Party conference on Monday, the British Library launched their manifesto for reform of UK intellectual property (IP) law. Speakers included representatives from Microsoft UK, Google, the National Consumer Council, the British Phonographic Industry and - on behalf of the Open Rights Group - Ian Brown. Pre-empting the publication of the Treasury’s Gowers Review of Intellectual Property, the succinct manifesto makes six key recommendations for reform, placing them in a broad social, cultural and political context.

“Our IP Manifesto sets out the unique role that the UK national library must play as both a leading voice and an honest broker in the debate that the digital revolution has generated,” said Lynne Brindley, Chief Executive of the British Library. “As a publisher in its own right, the Library understands the opportunities and threats presented by digital to the publishing industries. As one of the world’s great research libraries we are equally mindful of the threat that an overly restrictive, or insufficiently clear, IP framework would pose to future creativity and innovation. For example: currently the law does not permit copying of sound or film items for preservation,” she explained. “Without the right for libraries and archives to make copies, the UK risks losing a large part of its recorded culture.”

The manifesto’s key recommendations:

1. Digital is not different– Fair dealing access and library privilege should apply to the digital
   world as is the case in the analogue one.
2. Contracts and DRM – New, potentially restricting technologies (such as DRM/TPM) and contracts issued with digital works should not exceed the statutory exceptions for fair dealing access allowed for in the Copyright, Designs and Patents Act.
3. Archiving – Libraries should be allowed to make copies of sound (and film) recordings to ensure they can be preserved for posterity in the future.
4. Term of copyright – The copyright term for sound recording rights should not be extended without empirical evidence and the needs of society as a whole being borne in mind.
5. Orphan works – The US model of dealing with orphan works should be considered for the UK.
6. Unpublished works – The length of copyright term for unpublished works should be retrospectively brought in line with other terms – life plus 70 years.

Intellectual Property: A Balance - The British Library Manifesto

This is very encouraging news indeed. Historically, IP debates have been dominated by corporate interests, with alternative voices simply not heard by legislators. Now the British Library joins the RSA and the British Council in calling for the return of balance to our IP framework. Balance in this context is shorthand for better representation of public - as opposed to private - interests entailing, for example, protection and expansion of the public domain and a more robust ‘fair dealing’ mechanism. The Open Rights Group wholeheartedly supports this suggested direction for reform of IP law.

Finally! Somebody gets it that DRM is altering the copyright law bargain, by not allowing fair dealing/fair use. And it’s the British Library that is speaking out and saying that the same rules of the road should apply in the digital world as they have always done.

The British Library Gets It! - Groklaw

This Saturday 30th September there is an anti-DRM event in Central London, outside the Apple Store at 235 Regents Street, starting at 1400 until 1700.

As with the previous DefectiveByDesign events this will be a HAZMAT suit parade which should be colourful, fun and effectively convey the message about restrictive technology and it’s problems across to the general public.

I hope to see some of you there!

As revealed in detail by Bruce Schneier, Microsoft this week rushed
a patch out the door, well ahead of their usual once-a-month Patch Tuesday.

Included in this ’security patch’ is code designed to break a utility
called FaireUse4WM a program designed to remove the DRM from Windows Media Files.

More disturbing of course is that it’s being called a security patch
in the first place. While technically it is making *someone* more
secure, but that someone is not you. Of course, you still need to
spare the bandwidth, system downtime for restart, and far more
importantly, the inherent risk of system-damaging errors that come
from installing a patch to give those other people their security.

Given that system-threatening security holes are regularly made to
wait for a fix until said Patch Tuesday by Microsoft, but this
minuscule threat to their DRM is addressed almost immediately, it’s
not hard to see what priorities are at work here. Breaking DRM will
bring immediate action, but turning your computer into a spam-spewing
component of a bot net? Well, those kind of holes in your system will
just have to wait.

(My sentiments exactly, but not my words, they came courtesy of Ryan Alexander)

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 Apple/iPod DRM story seems to be a hot one at the moment. I’ve just got back from the Apple Store, where I did an interview with BBC journalist Sumant Bhatia. The segment will be on World Business Report on BBC World tomorrow morning, which BBC1 and BBC News 24 air at 0530. After that, it will be repeated on BBC World all day, which you can only get if you’re abroad. You should be able to watch it online, however.

ORG has had quite a few requests to be on the news, but until now all of the stories they would have wanted us to comment on have been dropped at the last minute. Nice to finally have a story run, though.

UPDATE: Hah! Looks like they bumped me for Bill Gates. Still, nice practice.