When the European Commission put forward their proposal to retrospectively extend the copyright term granted to sound recordings, locking away vast swathes of our cultural heritage in a commercial vacuum for 45 years, it was clear that they had rejected all the expert evidence in favour of voodoo economics.
Now Professor Bernt Hugenholtz has written a letter to Commission President Jose Manuel Barroso asking why. Huggenholtz, Director of the Institute for Information Law (IViR), which was tasked by the European Commission to look into the arguments for and against extending copyright term, says his team were "surprised" to discover that theirstudies had been completely ignored, and that statements the Commission have made that "there was no need for external expertise" in drafting the proposal were "patently untrue". He goes on (with our emphasis):
As you are certainly aware, one of the aims of the 'Better Regulation' policy that is part of the Lisbon agenda is to increase the transparency of the EU legislative process. By wilfully ignoring scientific analysis and evidence that was made available to the Commission upon its own initiative, the Commission's recent Intellectual Property package does not live up to this ambition. Indeed, the Commission's obscuration of the IViR studies and its failure to confront the critical arguments made therein seem to reveal an intention to mislead the Council and the Parliament, as well as the citizens of the European Union.
In doing so the Commission reinforces the suspicion, already widely held by the public at large, that its policies are less the product of a rational decision-making process than of lobbying by stakeholders. This is troublesome not only in the light of the current crisis of faith as regards the European lawmaking institutions, but also - and particularly so - in view of European citizens' increasingly critical attitudes towards intellectual property law.
The letter goes on to demand that the Commission fully inform the European Parliament and the Council of Ministers of the findings of the IViR studies. You can read it in full here.
One of our most proactive supporters is looking for people to come down to a Bristol event. If you're in the south west of England and want to find out more about ORG, meet others who are interested in our issues and maybe also get more involved then please sign up to the pledge. The host wants 15 digital rights enthusiasts to make the event worthwhile so please sign up if you're around the Bristol area. We want to come and talk at events arranged by ORG supporters and hope others will take this not-so-subtle hint to arrange more local events.
Its been about six weeks since we launched the ORG-GRO supporter drive. We're now over the 900 fivers mark and closing fast on the 1,000 milestone. To put the numbers another way, we've raised an additional (projected) £9,300 per year from individual supporters, which goes at least some of the way to cover our (thrifty) costs. Its really gratifying to know that more and more people think enough of our work to put their hands in their pocket so we can keep up the pressure. Thanks to everyone who's recently joined Open Rights and also to our current supporters who've either committed more cash themselves or convinced others to join ORG. Also, an extra special thanks to the bloggers who are using our widgetometer to spread the ORG-GRO message; check out the growing list by following this link, where you can also learn how to host the widgetometer on your blog.
We’ve put the Executive Summary of the consultation document online. Please use our interactive consultation tool to tell us what you think of the Government’s options for combating illicit filesharing. The Government’s "preferred" option is to have codes of practice designed by ISPs and rightsholders in collaboration with OfCom, which oblige ISPs to take action against subscribers to their network believed to infringing copyright over p2p. This includes taking action against "repeat infringers", although the document is short on detail about what such action might entail. Several other options are outlined:
Option A1: Streamlining the existing process by requiring ISPs to provide personal data relating to a given IP address to rights holders on request without them needing to go to Court.
Option A2: Requiring ISPs (by law) to take direct action against users who are identified (by the rights holder) as infringing copyright through P2P
Option A3: Allocating a third party body to consider evidence provided by rights holders and to direct ISPs to take action against individual users as required, or to take action directly against individual users.
Option A4: Requiring that ISPs allow the installation of filtering equipment that will block infringing content (to reduce the level of copyright infringement taking place over the internet) or requiring ISPs themselves to install filtering equipment that will block infringing content.
Options A3 and A4 mirror developments in other countries in Europe, such as the Olivennes Bill in France, or court cases in Belgium and Ireland brought by rightsholders to compel ISPs to install filtering equipment. Click here to leave your comments on the Government’s options for dealing with illicit filesharers. You can download the full text of the consultation document here [pdf].
The very best news is that Professor Ross Anderson of FIPR has generously promised us three signed copies of the new edition of his epic book Security Engineering to lure in new supporters. Thanks, Ross! To be in with a chance of securing your copy, just sign up and write 'I love Ross' in the 'How you heard about ORG' field. We'll give books to the three new supporters whose donations reach us first.
For those not yet familiar with this mighty work, a testimonial from Bruce 'security guru' Schneier should interest you: "If you're even thinking of doing any security engineering, you need to read this book." Another clear sign of its quality is a reference to our 2007 Elections Report. Want to find out more? Best join up then.
Here's a link to this month's supporter update, which is a bumper edition with news of our blooming supporter drive and an extremely busy campaigning month for ORG. Please read and give us some feedback on how we're doing .
Will the 2012 election for Mayor of London be counted manually? Yes, at least, that’s the assumption the UK’s elections watchdog would like City Hall to make. The Electoral Commission’s report into the London Elections [pdf] has called for the Greater London Returning Officer to carry out a cost benefit analysis of options for counting ballot papers at the 2012 elections "as a matter of urgency" (mirroring the key recommendation from ORG’s recent report), and to start from the assumption that the vote will be counted manually.
The statutory report, published earlier this month, vindicates many more of the observations made by Open Rights Group volunteers in our 2008 London Elections report. The Electoral Commission are "extremely concerned" that they have not been given full access to audits of the e-counting system commissioned from KPMG before the election, demanding that any future technical audit include a requirement for full publication. They write:
"We recognise that commercial suppliers... may wish to protect their commercial interests. However, such wishes should never take priority over the interests of electors"
The Commission also raise the same concerns as ORG over the ballot box verification process, and the discrepancies observed between figures for ballot papers issued at the polling station, and ballot papers scanned in the count centre. They recommend that any future e-count allow count centre staff to record reasons for such discrepancies, and provide "verification statements" to candidates, party agents and observers. They concur with our analysis that the system could have been recording blank ballots as valid votes. And they also touch on the fact, detailed in the ORG report, that nearly 1,000 votes for London Mayor from the Merton and Wandsworth constituency never made it into the final result because of a transmission error.
Central to the ORG report were concerns around transparency, and the Electoral Commission report emphasises loss of transparency as one of the "hidden costs" of electronic counting. They point out that observers at electronic counts need to increase their technical knowledge in order to understand what is going on, because:
"Candidates, agents and observers act as a crucial check on the accuracy and integrity of the count process, both for their own benefit and for the wider benefit of the vast majority of electors who are not able to physically attend the count."
Will the Ministry of Justice listen? Despite expectations that a strategy document on e-voting and e-counting could be available before the Summer recess, no such document has emerged. And it seems their idea of extensive consultation is one question hidden in a pretty unrelated consultation (on remote electronic voting – a completely barmy idea that even the USA won’t touch with a barge pole). We can only hope that the Government listen to this latest Electoral Commission report – and to the growing consensus that "modernising" elections doesn’t have to mean expensive computer systems that hide the workings of our most important democratic ritual in a black box away from public scrutiny.
As you'll have noticed if you've been tracking the ORG fundometer, since launching the ORG-GRO supporter drive three short weeks ago, we've scored a phenomenal 10% growth, as well as a pile of one-off cash donations. This means we're on track to double the number of monthly fivers we receive to support our work during 2008. Thanks to everyone so far who's put their hands in their pockets for ORG. And if you're yet to pledge your monthly fiver, please do so now.
Some of these fantastic early results are due to volunteer efforts, such as Danny O'Brien (pictured)'s pledge to blog every day for a month if five people sign up to ORG (he's also pledged to resuscitate NTK - ntk.net - if ten more of his readers agree to give ORG a tenner a month) and the posse of ORGsters (Glyn, Sheila and Richard) who spread the good word at LUG Radio Live. Just as pleasing is the fact that the extra work we're putting into our financial stability has notlimitedourcampaigning.
We're also excited to announce that the volunteer who attracts the most new supporters will win an Eec PC, donated by the kind people at Asus. If you convince someone to join ORG, be sure that they note your supporter ID on their sign-up form. We'll keep a league table of supporters for the next few months and announce a winner on ORG Day (19 November) 2008. For more details, see the ORG-GRO page. Also, don't forgot that there's a mystery gift (ooh!) for new supporters who sign up to donate ten pounds a month, and also for existing supporters who increase their donation level to ten pounds a month.
Only 3 months late, the Government has finally released a consultation into potential legislation aimed at curbing illicit filesharing on the net. Several of the legislative options on the table are worrying, and mirror schemes being discussed in various national and international fora. They include streamlining the legal process to require ISPs to provide personal data relating to an IP address, handing responsibility for taking action against illicit filesharers to a third party body, or requiring ISPs to take action against users themselves or to install filtering equipment to block infringing content.
At the same time, the Department for Business, Enterprise and Regulatory Reform (BERR) have also announced a “landmark industry agreement” to address unlawful filesharing, signed by the UK’s six major ISPs - Virgin Media, Sky, Carphone Warehouse, BT, Orange and Tiscali - as well as the British Phonographic Industry and the Motion Picture Association.
This “Memorandum of Understanding” (MoU), negotiated behind-the-scenes with strong influence from the Government, is appended to the consultation (Annex D). Its stated objective is to achieve a significant reduction in illicit filesharing and a change in popular attitudes towards copyright infringement, within 2 to 3 years.
Signatories endorse five principles in the MoU:
That a joint industry solution is the best way forward
That they will work together to educate consumers about why illicit filesharing is wrong
That making content available in a wide range of user-friendly formats is important
That they will engage in a 3 month trial to send letters to 1,000 subscribers per week suspected of downloading or uploading unlicensed, copyrighted material
That they will work with OfCom to identify effective measures to deal with repeat offenders
A BERR press release out this morning describes how the MoU and legislation arising from the consultation will work together:
“The approach will pilot letters to be sent to the registered user of an internet account when their account has been identified as having been used to unlawfully share copyrighted material. The letters could point consumers to other sources of material available legally and in a variety of formats.
“ISPs and rights holders will produce a Code of Practice together on how they will deal with alleged repeat infringers. Government will consult to give this Code legislative underpinning.
“Ofcom will facilitate discussion between the parties and approve the final Code of Practice. Ofcom will also ensure that the self-regulatory mechanism is effective, proportionate and fair to consumers.”
For dealing with repeat infringers, the MoU mentions “technical measures such as traffic management or filtering, and marking of content to facilitate its identification”. Although there is no mention of disconnecting users, such a course of action is not ruled out. More worryingly, negotiations around the code of practice to deal with repeat infringers will not involve direct consumer participation, relying instead on Ofcom to ensure consumers get a fair deal.
As the Open Rights Group has set out exhaustively on this site and in the media (also see our appearance on Channel 4 News below), disconnection is not a good option – either for internet users or for the artists whose livelihoods are harmed by illicit filesharing. Not only is the punishment disproportionate to the crime, in most households, an internet connection is shared by a number of people. What’s more, as soon as law enforcers start snooping for IP addresses to pass on to ISPs for disconnection, hardcore filesharers will simply start using encryption and IP-masking to obfuscate their identities. Then they’ll develop software that makes it easy for non-technical people to do the same. Driving illicit filesharers further underground isn’t going to earn artists a penny, and will further irritate their fans.
Instead, offering consumers legal, attractive and competitive alternatives to illicit filesharing is the vital component in any programme to curb illicit filesharing. The MoU mentions that such alternatives might include subscription, on demand or sharing services. But unlike with the proposed enforcement measures, no timetable for providing legal alternatives is mandated. In this way, today’s announcement has its priorities wrong – preferring criminalising consumers over catering to them.
ORG will be responding in detail to BERR’s 60+ page consultation on a legislative approach over the coming weeks. The consultation will be up on our interactive consultation tool soon – and you’ll be able to help us respond by leaving your views. The consultation closes on 30 October 2008.
Open Rights Group exists to preserve and promote your rights in the digital age. We are funded by thousands of people like you. We are based in London, United Kingdom. Open Rights is a non-profit company limited by Guarantee, registered in England
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