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September 25, 2014 | David Allen Green

When can a High Court grant an injunction to trade mark holders against ISPs to block access to “infringing” websites?

Today the High Court begins hearing an important case about injunctions and the internet.

The question before the Court is whether the owner of a trade mark can obtain an injunction - not against an alleged counterfeiter, or even against the owners and operators of the websites on which counterfeiters sell their items.  The Court is instead being asked to grant an injunction against the internet service providers (ISPs), so that websites alleged to be infringing the trade marks are blocked to ISP subscribers. 

What makes this a novelty is that such injunctions seem not to have been granted before.  Whilst there is a specific statutory provision for copyright holders to obtain injunctions against third party ISPs, there is no similar provision to protect trade marks - or any other intellectual property rights (IPRs).

So, can the High Court grant such injunctions?  And, if so, what protections will there be to prevent misuse of this novel jurisdiction.

The claimants in this case are Cartier and two related companies.  They say the High Court does have this jurisdiction, under either the Senior Courts Act or the EC's Enforcement Directive (or both).  The defendants in the case - BSkyB and the other main ISPs - deny that there is any such jurisdiction.  The case starts today before Mr Justice Arnold, the experienced Chancery judge who has already decided a number of cases involving the enforcement of IPRs on the internet.

Nobody sensible wants to give comfort or support to counterfeiters. But it is not difficult to see the problems which such injunctions may cause to other people using the internet.  For example, a whole website could be blocked just because of the activities of a few sellers. Or a rights holder may threaten to apply for an injunction on the pretext of an alleged infringement when all that is happening is unwelcome consumer criticism or parody.  There is also a matter of principle: such injunctions should never be a first resort of a lazy rights holder but the limited last resort of a rights holder who has genuinely tried other available means.  And then there is the simple issue of effectiveness: injunctions should not be granted in vain and, as the websites will still exist, the orders of the Court can be still be circumvented. 

Mr Justice Arnold has kindly given permission for the Open Rights Group (ORG) to make written submissions on whether the Court has the jurisdiction to grant such injunctions and, if so, how the legitimate rights of third parties should be protected.  The submissions - written by myself, with the assistance of ORG legal director Elizabeth Knight and barrister Greg Callus - contend that should the High Court hold that it can grant the requested injunctions then it should only do so when the injunctions would be effective and proportionate, and the Court should ensure always that the legitimate rights of third parties are protected. ORG has submitted that the appropriate test to be adopted by the Court should be:

This Court should not grant an injunction against ISPs in respect of alleged infringements of trade marks or any other intellectual property right unless:

  1. the Court is satisfied that the order is proportionate, and not only proportionate as between the parties but also in respect of third parties;
  2. the Court is satisfied that the order is effective (and dissuasive, to the extent that has a different meaning); and
  3. the Court is satisfied that the order contains safeguards against abuse.

ORG has also made submissions as to what should be the relevant considerations for each limb of this test. 

In respect of proportionality, the ORG has submitted that in granting any proposed order the Court should have regard to the following:  the duration of the order and that it will not endure longer than necessary; the scope of the order and that it does not cover more websites than necessary; the relevant third parties (other than the alleged counterfeiters) and how the proposed order will affect them; whether the rights holder undertakes to compensate any third party whose lawful activities are interfered with by the order; any defences that may be available to the alleged counterfeiters; and whether the proposed order creates any barriers to any legitimate activity (including trade).

In respect of effectiveness (and dissuasion), ORG has submitted that in granting any proposed order the Court should have regard to the following: whether the remedy would be completely or only partially effective; the current states of the relevant technology and of the technological knowledge of internet users, and any evidence that the order can be circumvented; and whether any dissuasive effect is balanced against the inconveniences caused to third parties engaged in lawful activity.

And, finally, in respect of safeguards against abuse, ORG has submitted that in granting any proposed order the Court should have regard to all the following: whether the rights holder has made any real attempt (and not just perfunctory attempt) to seek a more direct remedy against the alleged infringers and the hosts of the website and that the application before it is a genuine last resort; whether the alleged infringers are engaged in commercial or non-commercial activity, and here the Court should have special regard to forms of non-commercial speech such as parody and criticism;  whether the rights holder will continue to make efforts to identify and enforce its rights directly against the domain holder and alleged counterfeiter; whether the terms of the order mean that the ISP will ensure that anyone going to the landing page(s) (including the domain holder) will have sufficient information on that page to apply to vary or discharge the order (and ideally a copy of the order); whether the terms of the order mean that the ISP will ensure that the proposed replacement landing site will serve no commercial purpose for the rights holder (and whether there will be a safeguard against the site being used by the rights holder for advertisements or redirections to commercial sites); and whether the correspondence or other conduct of the rights holder shows that the jurisdiction of the Court may be being abused.  

 As this is a test case, the written judgment will be influential.  Whilst ORG (and indeed the ISPs) are neutral in respect of the underlying alleged infringements of the trade marks in this case, it is crucial that the coercive force of a Court injunction is not granted lightly, especially where the legitimate rights of third parties will be affected.  It is hoped that, should the Court hold that it has the jurisdiction to grant the injunctions, it sets out a test to be followed which ensures that in future similar injunctions are only granted when it can be shown that the injunctions are proportionate, effective, and have safeguards for the legitimate rights of other users of the internet.

David Allen Green is a lawyer at Preiskel & Co LLP and a journalist. He is acting for ORG pro bono in this submission. 

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September 23, 2014 | Jim Killock

Help us start campaigning in Scotland

The referendum result, after one of the most exciting and inspiring political debates the UK has seen, was for Scotland to stay within the UK. ORG did not take a position on the referendum, but we feel confident that the people of Scotland have shown that they can lead a democratic renewal: something we need to be a part of.

Major questions remain. What new powers will be devolved? How will our rights be embedded into the work of the Parliament? How will Scotland respond to the collective experience of engaging in a debate about the future of the nation?

We want to place citizens’ digital rights at the heart of Scotland’s politics. Prior to the referendum, there were debates that needed a voice like ours, to explain how privacy and free speech matter. Issues like Entitlement Cards, data sharing and powers for website blocking and libel prosecutions. These questions haven’t gone away, and more powers will mean greater responsibility to get the answers right.

We now have a chance, as the result of a profound change in the levels of civic engagement in Scotland, reflected in the referendum turnout, to make ORG a leading voice to promote digital rights in Scotland.

And we are most of the way there. This summer, we started a campaign to get at least 90 new members in Scotland so we could hire a part time organiser. We have 60 new members so far.

Just 30 more will mean we can hire someone to start campaigning on these issues. If you live in Scotland, please join to help us start campaigning in Scotland. If you are an existing member, you can help by upgrading your membership.

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September 16, 2014 | Javier Ruiz

ORG rejects calls for 10 year prison sentences for online copyright breaches

Open Rights Group has responded to a consultation into changes to the law that could lead to people found guilty of online copyright infringement facing up to ten years in prison.

Photo: AlexanderY CC-BY-SA–2.0 via Wikimedia Commons

 

The consultation, carried out on behalf of the IPO by Inngot is based around the following question:

“Today, there is a significant difference between the penalties for offline and online copyright infringement. If convicted, criminals can serve up to ten years for the first — but only a maximum of two years for the second. Do you think the law should be changed?”

In our response, we have outlined why we believe that it is is misleading to suggest that online and physical copyright infringement are comparable offences and should therefore carry the same penalties. It is relatively easy to distribute large numbers of digital copies of a work online, while doing the same in the physical world would involve infrastructure clearly beyond the reach of ordinary citizens. We believe that there is a risk that members of the public could be unwittingly in criminal online infringement – even if they are not making any money.

Changing the law could even lead to harsher sentencing for online infringement than for offline infringement. The difficulty in making evidence based assessments of the actual values involved in online infringement tends to generate estimates of very high economic harms, easily in the millions. This could make non commercial online infringers end up with much higher sentences than hardened criminals dealing with physical goods.

ORG also believes the consultation is flawed because it doesn't seek the opinions of ordinary internet users but assumes that respondents, “generate income” from the copyright of their works. We do not believe this policy should be considered but if it is, we will mobilise our supporters and the rest of civil society to oppose it.

You can read our full response here.



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September 04, 2014 | Javier Ruiz

Culture Secretary threatens search engines with anti-piracy legislation

UK Culture Secretary Sajid Javid has made some worrying declarations, threatening search engines with legislation unless they stop "sending people to illegal sites".

CC-BY 2.0 Foreign and Commonwealth Office

In his speech to the AGM of the British Phonographic Industry (BPI) Javid skimmed over existing government policies, from tax reliefs to £246 million in music education hubs that will give children the chance to learn to play an instrument. This industrial activism is aligned with CBI proposals to strengthen the creative industries. But he chose instead to make copyright enforcement the focus of his speech.

Javid tackled the topic with an almost endearing simplicity: “copyright infringement is theft, pure and simple”. Such one-liners may please this audience, but make poor policy foundations, particularly in areas as fuzzy as copyright infringement. For example, until the law changes this autumn copying your own CDs to your own iPod is theft, according to Javid. In another example of how convoluted copyright conflicts can get, it has taken five years for the Court of Justice of the EU to eventually rule that browsing websites is actually legal and the on-screen copies are not infringing. So much for pure and simple.

Does the music industry really need protecting in 2014?

Javid commiserated with the BPI: “the 21st century has not always been kind to you”. It is undeniable that the UK music industry is undergoing a seismic transformation, like many other industrial sectors and aspects of our lives. BPI members’ incomes have decreased by almost 40% in the past 10 years , but the trend appears to be stabilising and last year saw an increase. This is thanks to digital services, which now account for some 50% of their revenues.

According to the international music body IFPI we are seeing “an industry of growing digital revenues and multiple income streams internationally”. Not exactly a picture of doom. And while monies may have been going down, the amount of music being created nowadays is astonishing. A ten minute tour of websites such as The Hype Machine will fry the brain of any baby boomer with a fully paid mortgage.

What about the music based on remixes and mash ups of existing songs? The creative citizens who make these tracks are not included in considerations that exclusively focus on the established recording industry. And within industry it is far from clear that the interests of all artists and creators are automatically aligned with those of the companies represented at the BPI.

Incidentally, Javid’s team apparently gave him the wrong figures. According to the best estimates, the UK music industry is worth £3.5 billion. It is the UK film industry that is worth £4.5 billion.

The rest of his speech provided a round up of current enforcement policy with an added new threat of legislation on search engines.

Creative Content UK: alienating consumers

The new industry-led successor to the Digital Economy Act, Creative Content UK, was presented as an enforcement regime that “protects the rights of copyright holders and punishes criminals, but doesn’t hamper creativity, stifle innovation or block new, legitimate ways of enjoying music”. The CCUK system - formerly known as VCAP - will involve both an education campaign on the value of copyright and sending letters to alleged infringers. There are no plans to disconnect or throttle the internet of subscribers who receive several letters.

This new programme is less worrying than the original DEA, and a clear vindication for ORG’s campaigning on this issue. But we remain concerned about this - mainly adversarial - approach to dealing with consumers. OFCOM research shows that people sharing content online are also contributing significantly to industry spend, “as their high infringing is coupled with high levels of consumption and spend”. There must be a better way to encourage more legal consumption than alienating some of your best customers.

From the available evidence it appears unlikely that Creative Content UK will have any major impact on file-sharing. We can expect calls to introduce more draconian measures. But instead we should be looking at the root causes of the phenomenon and its real impact on revenues.

City of London Police Intellectual Property Crime Unit (PIPCU): BYO cops

The minister praised the activities of PIPCU. These include maintaining a copyright Infringing Websites List (IWL) with input from industry. This is a secret list, and FOI requests for the release of the IWL have been rejected . We believe that secret lists have no place in copyright enforcement. As we saw above, one person’s infringement may be another’s innovation, and there should be an opportunity for site owners and users to discuss each case.

PIPCU takes pride on its innovative ways of disrupting the activities of allegedly infringing sites. But to us, and many others elsewhere, these appear to involve extra-judicial punishments. In some cases the organisations hosting the DNS records are being asked to point these to a website with an ominous warning and the logos of PIPCU and several rights holder groups. In one case PIPCU forced domains to be transferred, but an arbitration tribunal reversed the decision due to the lack of a court order. More recently, PIPCU has started sending “notices of criminality” warning internet companies to sever relationships with allegedly infringing websites “to avoid any future accusations of knowingly facilitating the movement of criminal funds”. It is extremely worrying that a British police force thinks they can bypass the courts to deliver summary justice.

There are also concerns about the independence of the unit. The unit’s current funding mostly comes from the Intellectual Property Office, but industry is expected to fund its continuity. PIPCU already has a BPI employee in secondment.

The City of London Police has similar arrangements in most other economic crime units. For example, its Insurance Fraud Enforcement Department is funded by the Association of British Insurers , although they claim to operate with independence. The Dedicated Cheque and Plastic Crime Unit (DCPCU) is fully funded by the banking industry and supported by bank staff. The Overseas Anti-corruption Unit is wholly funded by DfID.

All these agreements raise questions about potential conflicts of interest, which might be managed with proper governance arrangements. But PIPCU is unique in dealing with an area where there is no social consensus; where different industry sectors are pitted against each other, and the everyday behaviour of millions of citizens is potentially criminalised. This is a situation that requires a nuanced approach to balance the interests and concerns of all parties. At present it appears that PIPCU is acting as a semi-privatised police force for one specific interest group: rightsholders.

Threats of legislation on search engines

The final salvo was dedicated to search engines. Javid informed us that he has written - together with Vince Cable - to Google, Microsoft and Yahoo asking them to stop “sending people to illegal sites”, threatening a legislative approach if he doesn’t see “real progress”.

But it is unclear what exactly this means. Sajid said he supported Mike Weatherley MP, Cameron’s IP czar, who has published a discussion paper with several proposals for how search engines should handle unlawful content. These include demoting websites by using reports and the PIPCU blacklist; removing websites subjected to court orders that demand blocking by ISPs; reducing advertising income to infringing sites, and the use of industry trust marks to promote legitimate content. Weatherley also supported exploring Google’s proposals for technical measures to promote legitimate content, such as the use of “rich snippets”.

We hope to hear soon what concrete proposals are on the table, but we can already find some problems with this approach. Ultimately, the government are considering the legal regulation of one industry to protect the interests of another. If the government thinks this is the right approach, they should be transparent about it. It is not simply a matter of neutrally enforcing the law.

An added complication is that technology companies have many lines of activity. Some search engines are actively involved in media distribution. Legislating to force search engines to remove links to some media sources could have unpredictable consequences. In the US, Google search results for music and video titles present prominent links to its own Play services - for watching content. Apple delivers digital media via their iTunes platform, and might benefit from the removal of any website links.

This kind of close collaboration between government and industry groups happens in other areas - for example in the nuclear and pharmaceutical industries - but there is a certain coyness about it. Here instead we have Javid publicly joking about how being able to get free tickets to concerts makes him popular with his own children. Clearly it would take a lot more than free concert tickets to influence UK government policy – and we are sure these were promptly registered as gifts and hospitality. But it shows how acceptable it is to be seen championing the music industry instead of the public interest.

More generally we believe that regulation of copyright enforcement should consider all stakeholders involved, not just industry, and including consumers and amateur creators. You may believe that the role of government is to take an active role in protecting national industries, or simply act as a hands off regulator. But in any case it is unacceptable not to consider the interests of large sectors of the affected population. Sadly, this seems to be the case here, as government threatens to legislate without any early consultations.

This process also goes against the “multi-stakeholder approach” to Internet regulation of which the UK is a leading promoter, including this week at the Internet Governance Forum in Istanbul.

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September 04, 2014 | Pam Cowburn

Tom Newton Dunn is one in half a million

It was revealed this week that the Met police used a RIPA request to access the telephone records of The Sun's Political Editor, Tom Newton Dunn.

The request was made to identify police whistleblowers who contacted Newton Dunn over the Plebgate scandal. According to the Guardian, Newton Dunn had made a statement to police at the time but refused to reveal his sources. Journalistic privilege, protected by the Police and Criminal Evidence Act, was circumvented by the use of RIPA, which meant that authorisation to access his records came from the police not a warrant. Newton Dunn was not even aware that his records had been accessed until the Met published their report into the Plebgate affair on Monday. 

The case should hopefully end any discussion about whether or not metadata reveals anything personal about us. In this case, Newton Dunn's incoming and outcoming calls and information about when and where they were received, were accessed in order to identify a whistleblower. 

Rightly, there has been media outrage at what is seen as a blatant attack on journalists' right to protect their sources. The General Secretary of the NUJ, Michelle Stanistreet, said: "If whistleblowers believe that material they pass to journalists can be accessed in this way – without even the journalists and newspaper knowing about it - they will understandably think twice about making that call." The lawyer and journalist David Allen Green has warned that the revelations mean, "no political or crime journalist in the UK should use their mobiles or many internet-based apps for contacts with their sources". 

Newton Dunn's case is just one of many - last year there were over half a million RIPA requests.  These have mostly been made by police forces but also by a large number of other public authorities, including Royal Mail, the Department of Work and Pensions and local authorities. How many of these requests were used to tackle serious crime? How many, like the Newton Dunn request, were an abuse of power? Would as many requests be made if judicial authorisation (which ORG is calling for) were required?

When the government rushed through the Data Retention and Investigatory Powers Act (DRIP) this summer, it said that it would reduce the number of public authorities that could request communications data. However, it also increased RIPA's reach by extending the definition of “telecommunications service” to include webmail services. So the next time the police issue a RIPA request for a journalist's records, they might be able to get data about emails sent through services such as Gmail or Yahoo.

In these troubled times, the government’s insistence that it needs our communications data to fight terrorism resonates with many. When DRIP was announced, Newton Dunn himself wrote in The Sun, that the new powers would allow "enshackled MI5 and cops to probe the internet for terror plots' giving them, 'crucial access to plotters' mobile phone records". But this latest abuse of RIPA shows how blanket data retention can threaten the very civil liberties and freedom that the government aims to protect.

  

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August 29, 2014 | Ruth Coustick-Deal

Digital Rights in Scotland: Decision Time

We believe it is time for ORG Scotland. Last year we proposed to our supporters the idea for a Scottish office that would respond to policy issues coming out of Holyrood, and the response was overwhelmingly positive.

As the vote on Scottish Independence fast approaches, we are worried by the lack of a strong network of rights organisations in Scotland. We think that ORG Scotland could help to address this. We have a strong role to play in both a devolved and an independent future but with an office in Scotland we could be more effective.

If you’d like to help us to build ORG Scotland, please join today: www.openrightsgroup.org/join

This referendum is about more than just voting for or against the current administration. The vote will have an impact for generations. It’s important therefore that those on both sides of the debate consider the long term issues and ensure that, whatever the outcome of the debates, human rights in Scotland are embedded in the law and fully enforceable.

Whilst ORG does not take a position on the outcome of the referendum, we believe it is absolutely necessary for digital rights to be part of the discussion. Increasingly, our day-to-day decisions involve digital rights issues. Do you buy the Smart Meter the energy company are pushing at you? Do you accept the Terms & Conditions for this free app you wanted? Do you find people unable to access your website? Are you unable to find health information online? Do you share that video, that joke, that tweet?

There are serious privacy concerns that people face in the UK: from GCHQ recording our personal emails, to the extreme levels of surveillance job seekers are placed under; there are those who are concerned about their invasion of privacy from non-state actors like stalkers, or abusers or those under electronic monitoring at work.

Every week Open Rights Group are asked to comment on issues like these and address the big questions about who is watching us, where our data is going, and what we can freely say. We need to have the same ability to comment on and campaign about these issues in Scotland. 

Whether you’re voting for Yes or Better Together, help us make this happen: Join ORG now

What is ORG doing now?

Our own work in Scotland has very much expanded in the last year. Executive Director Jim Killock has been visiting Aberdeen and Edinburgh talking to activists in Scotland about what they see for the future of Scotland. We held an ORG-Scotland Day in Edinburgh in May and we have more events lined up in the near future. For example, we will be at the Liberal Democrat conference in Glasgow, Saturday October 5th, leading a session on how to reform RIPA.

We recently did some research into the effect of the introduction of network level filters by internet service providers (ISPs) across the UK. We tested Scottish charity websites through our censorship monitoring tool to see whether blocking has effected their ability to serve their communities. As reported by STV, a concerning number were blocked, including a women’s charity caring for those at risk of becoming homeless and SWAP (Scottish Wider Access Programme) a charity dedicated to helping adults learn about opportunities to access higher education. 

You can help us do more work like this. We need 60 more people to join in order to have the funds to open an office in Scotland to respond to human rights and technology issues there. We can’t do it without the support of the public.

How do I join?

Joining by Direct Debit is the best way for us. 

ORG supporters usually give between £5 and £10 each month, but please be as generous as you can afford to be. For more options read about our other ways to give.

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August 19, 2014 | Pam Cowburn

Cameron's big stand will have little impact

Yesterday, the Prime Minister David Cameron announced his latest effort to take a 'big stand on protecting our children online'. In a three-month pilot, that starts in October, online music videos will be given an age classification by the British Board of Classification. This rating will be displayed when the music videos are uploaded to YouTube or the music video site Vevo. Cameron claims that such a rating system will bring music videos in line with offline media such as films.

The pilot seems to be designed to give parents guidance and there has been no announcement about plans to use age verification pop ups, presumably because these would be ineffective. As James Ball points out in The Guardian, 'Surely no teenager would dream of using a false birthdate to fox such a system?' 

But there are concerns that after the pilot, the scheme could be extended so that rated content is blocked by 'family friendly' filters that are being promoted to Broadband customers. Cameron refered to filters in his speech yesterday and said that as a parent, "bringing up children in an internet age, you are endlessly worried about what they are going to find online'. As more than 60% of new customers are choosing not to install filters, it seems that the British public don't share his fears or at least don't believe that the solution lies in switching on a filter. 

ORG is continuing to raise awareness of the censorship caused by filters through the Department of Dirty video and the Blocked website, which allows people to check whether URLs are blocked by web filters.

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July 30, 2014 | Javier Ruiz

Victory: format shifting and parody clear last hurdle

After nine years of campaigning, we have finally done it. The House of Lords yesterday cleared the last hurdle for parody and private copies to be legal under copyright law in the UK. Several new limitations to update copyright were agreed in June, but private copying, often called format shifting, and parody were held back, creating fears that they might be dropped.

Reform of outdated copyright laws has been a major campaign focus for ORG from day one. We asked for these changes when the then Labour government launched a major health check up of copyright law in 2006, the Gowers review. Pressure from industry lobby groups stalled the reforms proposed at the time.

It has taken nine years, and another comprehensive review of copyright by Professor Ian Hargreaves, to get these proposals agreed. We engaged in many rounds of detailed consultation, argued for the changes in round tables and meetings, and got people to sign our petitions and create infringing parodies at righttoparody.org.uk.

  

So we had fun. But what have we won?

For most people copyright is an arcane subject. Our friends and family aren't even aware that by copying their own legally purchased CDs to their iPod or that by making spoofs such as Downfall parodies, they have been breaking the law.

But copyright has immense implications for the functioning of the Internet and digital technologies.

The proposed reforms are quite modest. Despite protestations from industry about the potential impacts of the new parody exception, the law has very strong constraints. It is framed as a fair dealing exception, meaning that by definition it will only be acceptable if it has no negative impact on the revenues generated by the original. In addition, the exception does not affect any moral rights the author may claim, for example around derogatory treatment.

We will have to make sure the new parody right can be used and isn’t inappropriately challenged in the courts. But it has to be said that getting parody onto the statute book is a major achievement for the government and those who supported the proposal, including campaign groups, and comedians and YouTube parodists who joined us in our campaign. It was striking in the debate how many of our arguments were put forward by Baroness Neville-Rolfe for the government:

Online creative sites, which are about building grass-roots creativity, have told us that they have encountered sometimes insurmountable issues with lawyers and copyright owners over the years. A generation of people who are the bright new talents in the UK’s creative industry started out by posting their work online, including Ben Wheatley, director of the hit film “Kill List”.

One of the ways that campaigners are able to highlight questionable business practice is by parodying a company’s own brand or slogans. Yet as the law stands, to do so carries considerable risk of legal action and with it the risk of campaign materials being blocked from publication. The Government believe it is time to change the law. The proposed change enjoys wide support: from British broadcasters, production companies, creators and performers; from campaigning groups; and from centres of learning, as the ability to re-edit copyright works in new and experimental ways is an important learning exercise for building creative skills.

The new private copying exception is also relatively modest, although again a very significant step forward for the UK.

The exception is limited to personal use of lawfully obtained originals, and does not allow any sharing of the works, including with close family members. It also does not allow for the removal of any anti-copy technical protection measures, including those found on most DVDs and Blu-Ray discs. Given most media consumption is moving to a pure digital environment constrained by such measures, it remains to be seen how effective the new right will be in practice. How many people will be ripping CDs in ten years time?

Copyright law has a mechanism which allows you to ask the government to force the removal of excessive anti-copy measures when they inhibit your rights, but it will take a considerable fight to see this applied to private copying. At this point we don’t know the legal arguments that rights holders or the government might apply to resist requests.

Thankfully, the exception allows people to keep copies stored in personal cloud services. This has caused major consternation among rights holders, meaning industry bodies not creators, who were probably hoping to be able to impose a tax on cloud services.

Industry demanded to be compensated for this new right to personal private copies. To the uninitiated this may sound slightly insane: who would pay twice to rip a CD? Of course, this would have seemed more logical back in the first days of cassette tapes, when industry really did fear that ‘home taping is killing music’. But for many countries, the principle of compensation in return for private copying is very embedded, and often a significant revenue stream for collecting societies. Levies can be charged on paper, printers, hard disks and blank media. The UK has understandably baulked at the idea, which is probably the biggest reason why it has been so difficult to introduce a private copying exception into copyright law. The Government can’t accept levies, and rights holders won’t accept private copying without them.

The principle of compensation is established in EU copyright law. The directive on Copyright in the Information Society says that rights holders should be compensated for the introduction of any private copy exceptions. But—and it is a big but—only for any actual loses.

The government's argument is that legalising private copies that in most cases were already taking place does not incur additional loses. Any previous loses had already been incorporated into the market, so any new compensation would in fact provide additional income to copyright holders.

Industry has begrudgingly understood that this time they will not force the government to budge, as eloquently expressed by Lord Stevenson of Balmacara when he withdrew his amendment to the exception yesterday. But copyright holders will be looking for any evidence of losses to take the UK government to court in Europe to force a new tax, possibly on cloud services.

They should think twice. Levies are unpopular. The copyright industries, like any, have a social compact with the public. Copyright needs to be seen as reasonable. Levies easily get out of hand, and become embedded in legal systems, whether or not they really represent compensation for actual damage.

This brings us to the wider point. The net effect of these exceptions will be a stronger, more flexible and more legitimate copyright regime, which can only be to the genuine benefit of rights holders. This makes you wonder how good rights holder lobby groups are at representing their own interests. They have argued extremely strongly against the package of reforms, saying they will undermine and weaken copyright as a whole.

Like many industry lobby groups, the copyright lobby groups confuse profits and control with their strategic interests. A public interest copyright policy serves everyone's interests, by balancing the rights of copyright holders to profit from their work with the rights of citizens to freedom of expression and access to information and culture. These exceptions are a step towards a system that reflects that, and we should be proud that we helped copyright move in the right direction.

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