May 03, 2012 | Peter Bradwell

The 'spirit of transparency' haunts the copyright roundtables

We asked for details of the recent DCMS copyright roundtables. We've now received the minutes of both, and the proposals written by search engines for how they can improve their work to tackle infringement.


With all the waiting (and the waiting, and the waiting - so much of the waiting) for the Communications Green Paper, it has been easy to forget that DCMS have been continuing their meetings with rights holders and intermediaries about voluntary co-regulation agreements to tackle copyright infringement online. We've blogged many times about these before. There have been discussions about new website blocking measures, around action that could be taken by ad networks, and about additional powers over search engines

We asked, through the Freedom of Information Act, for details about some of the more recent roundtables - one broadly about online infringement and the narrower roundtable about search engine regulation. We've now received the minutes of both, and the proposals written by search engines for how they can improve their work to tackle infringement.

It's worth noting that we did this through Freedom of Information requests, which isn't ideal.  It still seems like DCMS think that opening a retrospective window onto these discussions is a sufficient methodology for open policy making. However, from the minutes of the meetings, perhaps there is at least some recognition that things need to improve on that count - see below. Baby steps. When and if the Communications Green Paper is published, there needs to be a meaningful, proper consultation process. In the short term, these roundtables need a serious dose of transparence. 

These documents are at the least useful reading to tide us over until we know more about the Communications Green Paper, which may take forward some of the ideas from these discussions. For more on that, see our briefing on the Communications Green Paper. Below is a brief look at the released documents, with links to download the full minutes and proposal.

1. Roundtable about online infringement. 22nd February, 2012.

Download the minutes. The following people were present:

Ed Vaizey MP, Minister for Culture, Communications and Creative Industries
Personal information - DCMS
Geoff Taylor - BPI
Lavinia Carey - FACT
Chris Marcich - MPAA
Gemma Hersch - Publishers Association
Bill Bush - Premier League
Theo Bertram - Google
Guy Philipson - Internet Advertising Bureau
Campbell Cowie - Ofcom
David Wheeldon - BSkyB
Mita Mitra - BT
Andrew Heaney - TalkTalk
Jon James - Virgin Media

(Worth saying that 'personal information' is not a name - it's the redacted name of a civil servant). First, once again it's hardly a broad spread of perspectives. There is no representation from civil society or consumer groups. Previously, Consumer Focus were attending these meetings. But no longer. They were the lone voice offering an alternate, consumer-based perspective. They can be a really important and valuable consumer voice on these issues too - for example, their intervention in the recent GoldenEye speculative invoicing case. It would be useful to know why they are no longer contributing to these meetings. 

On the other hand, there are some grudging nods towards the need to consider perspectives other than the industries involved. Point one on the minutes:

Everyone around the table agreed that the meeting note should be published along with a mission statement of what the roundtable was out to achieve.

Well, we got these via an FoI. After they said they would review the decision to publish initially because the information related to the formulation of government policy. That is the whole point of transparency regarding these meetings. Good, onging policy making would involve a proper, transparent and open process. To use an FoI Act as the means of pursuing this openness when there is an exemption for information relevant to the formulation of government policy is, therefore, not ideal.

As for the mission statement itself:

The OIC roundtable will meet regularly as a working group to check on progress that is being made both in the regulatory environment and in terms of industry-led initiatives to reduce the level and viability of online infringement of content. There will also be twice-yearly meetings involving others with an interest, such as consumer representatives and open rights organisations, and the note of the working meetings will be published on the DCMS website in a spirit of transparency.

Actual transparency and openness would be ideal, rather than their spirit. In most situations I would rather have the actual thing, rather than the 'notion' of that thing. Free and fair elections; accountability of those in public office; food. I can't find these documents elsewhere on the DCMS site as yet.

There are continuing discussions about the criteria for judging an infringing site in the context of ad networks trying to avoid advertising on them:

GP committed to holding a meeting with rights holders in February to ask them to consider the criteria for infringing sites. The issue of liability was briefly raised, and would be considered further by rights holders.
- EV asked for a timetable on the criteria for the DTSG. GP stated that the criteria needed to be agreed and the way in which the criteria were formed needed to remain transparent. EV agreed and asked for the formation of the criteria to be fast tracked. EV asked for an updated on the criteria at the next meeting.

The DTSG is the new Digital Trading Standards Group. Who exactly will make those decisions? What redress and recourse will there be when mistakes are made or the process is abused? Is it appropriate for industry bodies to be the sole arbiters of what services should be allowed to operate in a market? Will they be the people making those decisions? It's pointed out that the way the criteria is formed should be 'transparent'. Whether this will be spiritually transparent, or actually transparent, we will see. 

Assuming we are one of the 'open rights organisations' mentioned in the mission statement, we look forward to one of our twice-yearly updates.

2. Meeting on search engine regulation, 28th February

Download the minutes (.pdf), and the new proposal (.pdf). We blogged about previous proposals from rights holders for additional powers over search results. Search engines didn't like those much, so asked to write their own. This meeting was to discuss that proposal.

Attendees at the meeting:

Donna Whitehead – Microsoft
Theo Bertram – Google
Patrick Robinson – Yahoo
Richard Mollet – Publisher‟s Association
Bill Bush – Premier League
Geoff Taylor - BPI
Chris Marcich - MPAA
Ed Quilty – IPO
Sam Carter - Ofcom

The new proposal takes search engine prioritisations off the table, which we think is a good thing. That's really the crux of the issue. We think that external influences like this over rankings of results should only be permitted in exceptional circumstance, governmened by clear legal processes. It is interesting to see that Jeremy Hunt has taken a personal interest in search engine result prioritisation - as a note from the minutes revealing this action point:

"Search engines – to provide a short paper explaining their key concerns around prioritisation of search results (which EV emphasised the SOS does want to see proposals on)"

There should really be a proper consultation to test and examine such proposals properly. It is critical to note that DCMS have not laid out evidence or analysis or stated their position, meaning it is hard to know how they are judging what a good or proportionate or effective proposal looks like, or given others an opportunity to put their opinion and evidence forward.

The new proposal also encourages a broader dialogue and process, which is also welcome. We haven't analysed the new proposal in depth yet. Please leave your comments and notes on it below. 

Why do we care?

It's all very well banging on about openness and proper processes. But why do we care about what comes out of these proposals?

Funnily enough, it's not because we think everything should be free. Essentially, all these ideas amount to a big digital power carve up. The Communications Green Paper will help create a framework for the regulation of information on the Internet.  This will establish the way that decisions are taken about what content is or is not accessible to the UK public, who makes those decisions, and how they are enforced. The results will have enormous consequences for how the Internet works and in whose service it operates. 

A series of closed shop policy making roundtables, driven by unclear goals and reasoning through an opaque process, are unlikely to lead to proportionate, effective and balanced internet regulation. The results, added to proposals such as Claire Perry's broad, opt-in porn filters and casual ideas to block terrorism-related content, will not only undermine people's ability to access information freely here. It will critically undermine efforts to promote internet freedoms globally. This is about choosing who has the power to decide what we can access, look at, read and do online.