APIG DRM public inquiry hearing

The following notes were taking during the inquiry and they are my best attempts at keeping up with what was said. They are not verbatim notes – in fact, the APIG committee is going to publish a transcript of the sessions, at which point you’ll be able to compare and contrast, and see just how good/bad my note taking ability is! Frequently, I couldn’t keep up with who was saying what, so most of the response aren’t named.

All I have done is cut the bits that totally didn’t make sense – I haven’t dressed these notes up at all so it’s very much caveat emptor, I’m afraid. That said… here they are.

Present from APIG: Derek Wyatt MP, Chairman Ian Taylor MP Earl of Erroll

APIG: We are going to America to the Internet Caucus in Washington DC for 3 days. Today we’re looking at DRM. We’re an All Party group so there is no public funding, so funded via creative ways. Been some criticism of APGs recently, being in the hands of lobbyists, but we are not one of these groups.

We’ve been overwhelmed, and because you’re all here, that indicates how much interest and concern there is.

92 companies or individuals wrote in about how they feel. Doubt there’s a Select Committee that would be interested and be able to do an inquiry, so we’ve touched a nerve. We don’t know where we’re going but we are interested to try to engage government. Interestingly, they’re the only group who haven’t sent in anything.

Lots of you get to give evidence, so try to keep tightly to the running order.

1. Society for Computers and Law – Laurence Kaye – Gillian Cordal – Mark Lloyd

A few points about the background, a few points about the legal frame work that applies. When I talk about technical measures i mean hardware and software, and TPM is technical measures, and DRM applies to both.

Which laws apply? Whose laws apply? Which have jurisdiction?

Assuming we are talking about the UK.

There is hard law and soft law, e.g. codes of conduct and standards. Copyright, privacy, ecommerce, content regulation.

Points about how copyright works – what rights they get and don’t get. In area of DRM, UK copyright law following EUCD, and before that the world treaty, there are two rights:

– right of copying, in all forms. – communication to the public, push = broadcast, pull = making it available.

Core rights that rights owners get.

Exceptions. Over 50 clauses of the copyright act that deal with exceptions. Fair dealing for research, private study, criticism, review. Non-commercial. Copyright act has never contained an exception for private copying. This means reproductions on any medium made by a person for private use, which are non-commercial.

Thus, technically, copying a CD to tape or MP3 is not covered by an exception.

Time-shifting exception, for video machines mainly, but shifts to digital world, this does not apply to private copying.

In what circumstances can people copy?

Can’t private copy, but it’s a tort not an offence.

Illegal file sharing is not the same as private copying, it’s in breach of the making available right, not in the private copying right.

Have anti-circumvention provisions for computer software, not copying.

Definitions apply to technical measures for hardware or software. Have to be effective to be covered for the law. For anti-circumvention to apply, the TPM has to work, although it’s not clear how secure it has to be to be effective. So a court would have to decide if it was effective and if it’s not, the law doesn’t apply.

Anti-circumvention – knowingly circumventing, civil action. Penalties if it’s done in course of business.

DRM and exceptions. Mechanism that says TPM has to be lifted by the producer, if there is no voluntary measure to allow for the exceptions.

Q: Is the law strong enough, because anyone under 18 doesn’t take any notice? Have we got enough in the law already? A: What’s missing is sufficient education as to how it operates. It’s hugely complicated, and there’s a confusion about whether you can or can’t make a copy. On the continent there are various rights, and but they are all different. Levy on media to compensate.

Here there is no exemption, but people believe there is.

Law is convoluted but it has a ridiculous result. You can video the TV, but you can’t copy a CD for your car. The law is there, some of it is convoluted and contradictory, but the expectation that people would understand this on a general level is excessive.

Q: Technology has made the law an ass. Who would prosecute who? A: There are no examples of any prosecutions for private copying. The issue is not that the law is weak or missing, it’s a question of implementation of business models. Look at iTunes.

It’s not the law, it’s emerging business models with inbuilt permissions, you don’t even see them.

Q: But if there’s no private copying, then there’s no idea of too much use. A: Yes, one copy would be a breach. But level would make a difference for if the criminal aspect would kick in.

Q: Producers could use DRM which was not illegal but which had undesirable effects. Who would prosecute who? A: Outside the scope of DRM, the question is, is it protected or defective? But outside the scope of that you’d be in trouble.

Q: What does the person think he’s bought? I’d thought I’d bought the right to enjoy the music or video. If the company’s software fails, can I sue? A: Several questions. If you have a TPM system which can no longer effectively operate, then the anti-circumvention provisions don’t apply.

What the consumer gets, that’s largely a business response. It’s not an object it’s a digital good. You can have one business model that says one thing, but it’s in the business model.

2. British Library and LACA – Dr Clive Field (British Library) – Sean Martin (British Library) – Ben White (British Library) – Toby Bainton (Libraries and Archives Copyright Alliance) – Tim Padfield (Libraries and Archives Copyright Alliance) – Barbara Stratton (Libraries and Archives Copyright Alliance)

Q: Should there be a home for DRM, where citizens can come and find [non-DRM] versions? A: When we think about the content in terms of long-term access, there needs to be more thinking on that. The British Library, and the principle collector of materials, we will have a major role in both the content point of view but also the ultimate trusted intermediary. And we do of course have practical experience in using DRM, and we generate our own intellectual property which we have to protect of the national

Q: Is this a 3/10 or an 8/10? A: This is a microcosm of a bigger issue of copyright and how you can have a sensible interpretation of copyright law, such as fair dealing. This, and the other IP inquiries are essential.

Q: Given the British Library is deciding to use the net to distribute info, to what extent would you curtail that if your rights weren’t protected? A: Our interest is contractual obligation. Our natural inclination is to disseminate to the widest audience within our ability under the law. but there are legit interests which must be respected, and contracts that must be honoured.

If we think of a document that we may have acquired some decades ago, and we think of the rights we have, what we are now doing instead of photocopying and posting, we are scanning and sending it electronically with provision that they can print it. They end up with a printed copy, exactly as they would have done, under the terms we agreed. Under the existing framework the end result is the same, so the DRM we use is about delivery.

Not about ingesting material for long-term retention. Our concerns from a technical point of view is how we ingest material. Difficult to retain ordinary electronic documents for a period measured in 10 or 15 or 20 years if there’s DRM, there’s more problems in the long term.

Q: Would the British Library like to take the lead? A: We manage intellectual property on a large scale – we spend 16 million on buying commercial information sources. We will also be the principle recipient beyond that, and get more under terms of the libraries act.

We are putting infrastructure in place, so we see ourselves having a leading role, on behalf or ourselves and other libraries.

Legal deposit, we’ve had numerous databases with numerous DRM, so we need the key to unlock, or it’s supplied without a TPM.

Q: With public libraries, do you have different view? A: It’s frustrating yes, libraries and users have difficulties using their rights under the act, to use fair dealing and copy exceptions. If you can’t make copies you can’t exercise those exceptions. Whilst we provide a service to many people, we need to provide that in libraries nationwide. With DRM, we can’t supply copies.

There’s a huge gulf between what is possible theoretically under the law, and the practice. Material is divvied up by contract, and when you get a combination of contract and tech, it frustrates the libraries purpose to distribute within the law. We take rights very seriously, but must be able to distribute within the law.

What comes along with DRM is a shift away from the analogue world, where you buy a book and you have it. increasingly, databases come with licences that erode fair dealing rights. I would recommend reading an Australian copyright law review which goes into detail about these issues.

Q: What is fair dealing? A: This is the right to use and make a copy and utilise information for criticism, review, private study.

You can’t make a private copy, but you can make copies for private study, but not music or video.

In the library world we need a widely educated public, people able to use text works as freely in the digital world as analogue, and this is becoming much more difficult. We are operating under international treaties and supranational directives that recognise there are exceptions in the digital environment, in effect digital is not different, but because digital is licensed you only have access under that licence, even if that content is not in copyright, e.g. the bible. So public access to knowledge is being controlled by the provider of the medium.

Q: Is the concept of copyright changing whether we like it or not? A: It’s true that statute has become less important and contract more important. In most university libraries, most of journals come in digital form, with a licence that puts statute to one side.

Q: So a journal which would normally be distributed…? A: We acquire The Lancet under licence… there might be licence terms controlling distribution of the text that are more tightly controlled than a printed journal.

Q: And that would be by The Lancet? A: Yes. You can only acquire from one source, so if the distributor wants to restrict use in a certain way, there is little we can do.

In traditional printed journal would be sent to the library, and it would be their in perpetuity. A digital copy would not become part of the university’s possessions, we’d be accessing that from a remote publisher host, which tightly controls access. If there are inbuilt technology protection measures which constrain the use, we are moving downstream.

Q: Problem is when we think about the future. When it comes out of copyright, we are going to lose this knowledgebase because we don’t have a physical digital copy. With TPM, if isn’t lifted, it doesn’t become accessible. A: that’s a critical point. DRM systems are relatively short lived, so any library is concerned with DRM, once it’s obsolete it becomes inaccessible.

Q: Will that alter trading with the UK? A: We would argue for a trusted intermediary to whom the release key is given. Could be the British Library. But the British Library is not the only one that keeps material for long periods, e.g. universities, learned societies, public libraries with major collections.

DRMs last maybe five years, but they are not upwardsly compatible, and libraries have to keep migrating content, so they need the key from the start.

One DRM we have used has a life of three years, and it’s run out already.

3. Open Rights Group and FFII-UK – Suw Charman (Open Rights Group) – Dr Ian Brown (Open Rights Group) – Rufus Pollock (FFII-UK) – Alex Hudson (FFII-UK) – Gavin Hill (FFII-UK)

[It was impossible to take notes whilst we were talking, so all I have is the opening statement that I made to the committee. This, again, isn’t verbatim but very close to what I said.]

The Open Rights Group understands the pressures companies are under to use DRM, but in doing so they are misguidedly attempting to make digital bits behave like physical objects.

These companies are trying to win a technological race – they want their DRM system to be the one that the world uses. If that were to happen, one company would win enormous power over the market.

We already have multiple uninteroperable DRM standards which have been created on purpose to hamper competition and lock consumers in to a single platform. This balkanisation reduces market size and makes purchase less attractive.

Consumers are already at the mercy of DRM technology which could become obsolete at any moment. This problem would be exacerbated if DRM was tied into hardware.

There are also significant technical problems. Firstly DRM is incapable of distinguishing between lawful and unlawful use; secondly, files must always be decoded at some point, a fatal flaw called the ‘analogue hole’; and thirdly, DRM provides people with all the information they require in order to break that DRM. It only takes one person to crack a DRM solution for that solution to be rendered obsolete.

DRM can also do harm. Ill-conceived DRM can damage consumers’ computers, making them vulnerable to malicious attacks. It can destroy consumers’ own materials, where the copyright is held by the computer owner. Our own media is more important than purchased content and DRM puts it at risk.

DRM over-enforces the law. It reaches beyond the copy restrictions enshrined in copyright law; restricts fair and legitimate uses of legally acquired materials; and sometimes revokes or reduces ‘rights’ after purchase. It destroys the balance between private interest and public good and damages the public shared culture in our libraries.

DRM limits consumer’s ability to enjoy legitimately purchased materials and punishes behaviour seen by the majority as normal. The industry’s pushes towards more restrictive legislation will serve to do nothing more than criminalise more people. Yet the lawsuits which will clog the courts will do nothing to change people’s behaviour, because they believe what they are doing is fair and reasonable.

4. Share the Vision – Lynn Holdsworth (RNIB) – David Owen (Share the Vision)

Q: What are the particular worries you have? A: What worries us most is that we’re on the verge of the potential breakthrough for access to content for disabled people and it’s so frustrating. At the moment only 4.6% of material is available in an alternative format that’s accessible for vision impaired people.

In the digital age, in theory 99% of printed publications would be available to vision impaired people.

But what’s available now, such as ebooks and ejournals. Our problem is simple. Libraries and some individual people purchase these materials and wish to use them in a legal manner, but the DRM systems don’t allow them to access it because it interferes with the tech that vision impaired people use.

Libraries have a legal responsibility to provide access to disabled and vision impaired people, they’ve invested in technology to do this, voice output, a braille bar, and they can choose to access that content that they’ve never had before, but they can’t do it because the DRM systems knackers the assistive tech.

Q: Is there a government, maybe Australia and Canada, who is doing it better than us? A: Australia, Scandinavian countries, much better than ourselves. They are much more aware of basic fundamental rights for disabled people. They produce their own materials, the governments, design to meet the needs of disabled people.

But we are talking about legally purchased materials because producers unwittingly, probably, prevent them accessing it.

Producers should be forced to provide access. It’s a basic human right.

Q: Do we need primary legislation? A: The exception is there, in the law, but we need to ensure that in terms of DRM it’s applied.

Q: Regarding Scandinavian countries, the re-working of the materials is doing by the government? It’s not doing by the producers? A: It’s a different situation, they are making a positive effort to produce more content.

Q: The government is sponsoring it? A: Yes, it’s across the whole range, but it also provides for leisure reading.

For DRM we are mainly talking about academic texts not reading for leisure. Ask Lynn that if you buy something there’s no assuming you can use it.

Lynn: Bought an ebook, couldn’t read it because screen reader was disabled by the DRM. Amazon said that I’d downloaded it so it was the producer’s problem. Producers said it was Amazon’s problem. Ended up downloading an illegal copy to get it to work.

Q: Does each book have a different system? A: Yes.

Q: Is the screen reader built in to the ebook? A: Screen reader is external application, but the DRM doesn’t see it as a trusted application so it doesn’t allow access to the ebook.

Q: What should parliament be doing? A: The EC recently published a report on accessibility and decided to adopt the ‘wait and see’ approach , but it’s very optimistic to expect the market to address it because we are talking about a minority of the population. More substantial than people realise, but still. Will the market wake up to more customers, or will they say that there’s not much money in it, so they won’t do it. So if we want a more inclusive society, then government needs to take the lead and ensure that all these disabled people aren’t automatically excluded. Need a form of intervention in the market to make sure that individuals are catered for.

5. PACT – John McVay – Anthny Lilley – Andrew Yeates

[Didn’t get the opening question.]

A: Huge flexibility in copyright law, to allow DRM, and lot more flexibility to deal with the exception, but there is so much technology, the copyright owners are struggling to make sure that their content is accessible and in an interoperable way.

DRM was supposed to make sure that content owners can manage their rights, and deal with the exceptions in the law. We are moving with the technology as fast as we can.

We are seeing an interesting moment in the rational as to why we are using DRM, and the DRM as control and access has overshadowed the projects that are managing rights and abuse.

Q: Give us some examples. A: A mobile phone project, which has a closed environment. They are aware that internet technology will provide problems as on the internet.

One project is using Creative Commons, so the law can flex, and DRM can flex. But consumers are having more complex experience because DRM is complex. But the main motivation is anti-piracy.

Q: If the public understood that DRM was to manage piracy, maybe they’d understand, but they see it as restricting private use. How do you reconcile that? A: Balance between what people perceive they are entitled to do, and what they actually are. In the past, rights holders have ignored some usage, because it didn’t harm them. But with digital technology, it is damaging, and a new contract needs to be reached with the consumer so they understand what they can and can’t do.

Some people might want a piece of music for just a few days or a month, others might want it for longer, and DRM could do that.

Q: Where would you house the arbitrator. Is it OFCOM? Or is it the British Library? Who’s going to make the conditions? We make the law, but we give it to a body to interpret. Q: I am hearing something different. Are you saying there should be a market pricing difference? A: Well, at Blockbuster you can hire a video, or you can buy it. As producers, we want people to get as much use as possible.

People visit the cinema because it’s a one-off experience, but people can still buy the DVD.

Q: Several challenges. Consumer’s attitude needs to change. Also the pricing model of the provider needs to change, if they want to be restrictive then there needs to be a different model. If they want to be the Artic Monkeys then that’s their choice. A: There’s an important distinction between producers and distributors. Producers want to get their material seen by as many people as possible, but the distributors have different motivation. Makes sense for the market to tie people in to one music store, that’s the market working correctly in the economic sense. There’s a lot of friction in our market.

Q: What’s the implication of the film that’s been released in multiple formats simultaneously, ‘Bubble’, cinema, DVD, and online. A: Beginning for a clear change for independent film makers. Like the Arctic Monkeys, you bypass a lot of the piracy issues because people can get it at a time and place that they want to.

Q: There are commercial implications but are there DRM implications? A: I imagine they will be trying to protect it from piracy, so I should imagine yes.

Q: This is a rights issues? A: Yes it is. If we don’t get it right, form a domestic point of view, those platforms will be full of heavily DRMed product from the US. But there’s also a media literacy issue, which should not be just about meaning, and understanding but also practical usage.

Q: Adult illiteracy is 11%. But can we expect a member of the public to understand what they are getting when they buy something? A: It’s daunting, so we should make it easier for everyone to understand. Plain English would be very useful.

People are beginning to understand there is an illegal element, but whether they want to respect it or not is another issue.

6. British Music Rights, AIM, EMusic.com, BPI – Nic Garnett (BMR) – Alison Wenham (AIM) – Paul Sanders (State 51) – Simon Wheeler (Beggars Group) – Steve McCauley (EMusic.com) – Steve Redmond (BPI)

[Note: This panel was very divided. It would have been better for sense making if I had names attached to each person, but unfortunately that wasn’t so easy. Read between the lines, though, for some interesting conflicts.]

Q: What issues to you think we’ve missed so far? A: Our general position is one that supports DRM, but I hasten to add that we have a very focussed understanding of what DRM is. It can be many different things to many different people. As far as BMI is concerned, DRM are the tools we use to account to our members, including the Arctic Monkeys.

Ideas of a trusted intermediary is a good one, the submission put forward by the British Library is compelling. There are limits as to what DRM can do to enforce copyright law, because of the contextual limitations, and there will be safeguards required, by perhaps having trusted intermediaries such as the British Library.

But on behalf of BMI, we support it as we would word processing as a way of keeping up with all the information we have to follow.

BPI, current regulatory regime is adequate but we recognise that debate is necessary on this issue. There’s only been a legal digital market in the UK for two years, and it’s only been feeding into the singles chart for a year.

Discussion of DRM is predicated on this or that, it’s just technology. It’s neither good nor bad. There are two types in music – copy protection on CDs, and on downloads. Feel strongly that without DRM many new music projects couldn’t happen, such as Napster-to-go.

There is no monolithic music industry view.

But the view is that the rights owner should choose.

[Simon Wheeler, Beggars Goup?] As one of the only content owners at this session, we’ve had several licences with insecure businesses and our physical businesses has grown. We choose not to copy protect our CDs, in that we are trying to build trust with the audience, and build loyalty, and in return they respect our rights. Instead of trying to lock things down, which we don’t believe is acceptable, we are trying to go down the third way of building that trust. Companies that do try to lock down music on to CD, and the Sony-BMG rootkit is the most notorious example, and we think they are hurting the business as a whole. We have an obligation to deliver music to our users and consumers, and if we don’t make it available to them they will get it any way possible.

There’s a wide range of opinions throughout the industry and sometimes what you’re hearing and seeing, the loudest voice, is not representative of the industry. [/Simon Wheeler]

The vast majority of businesses do not do DRM, but use DRM as a tracking device, a facilitator rather than a preventer. Arctic Monkeys is a good example of the commercialisation of trust, when you allow them to access your work in the first instance which does not harm or impede how they enjoy that relationship.

Q: Some system where you can monitor the use to that you can reward the content provider is all right, but if it gets restrictive it’s not acceptable? A: The accounting procedures in the music industry are very complicated because of the range of rights and the way they are spread between companies. Making that chain accountable requires some sophisticated technology. Access control technologies often have nothing to do with making the use of music accountable to the artists and musicians behind it. They don’t need to have anything to do with that for technical reasons, they just account from the retailer back down to the supplier, the record company.

So there is a role for sophisticated DRM to make open and fully accountable system.

However, access restriction has no impact on piracy, and no help to accounting.

Q: Music industry invests a lot o money in many talents, not all of which will be successful, so must get money from somewhere. A: Putting restrictive technology on music files doesn’t create revenue. It reduces revenue by removing it from the market. Need far more free-flowing model, e.g. subscriptions, rather than per-track prices. Doesn’t require the technical access control in order to monetise the use of the music.

A: The copyright owner should decide, and let the market decide. If people want to apply DRM let them do it. In terms of this idea of locking down content, we heard there is no copy exception. So a copy protected CD which give you the formal right to make thee copies, so this is an advance.

So by using DRM in a sensitive way, it allows us to make new revenues.

Years back, there were two streams of revenue: sales and airplay. So now they have 15 streams.

Q: How does the copy protected CD work? A: Will have to get back to you on that.

A: It’s up to copyright owners to decide. But EMusic, sold 4.5 million songs part of a subscription package, but that’s not in a DRM’d format. The issue is compatibility with all devices. Not per se against it, but compatibility is important. There are four major companies because EMusic doesn’t deal with because of DRM.

A: How content owners can make their work available. The problem is that every time you pop a CD into your hard drive you are effectively breaking the law. Consumers have enjoyed the right to copy without having the law with them. The right of the consumer and copyright law, we have a law that works for physical artefacts rather than digital world. Hopefully the Gowers Review will open debate. Hopefully copyright owners will cede top-down control, which consumers have enjoyed for 20 years, so to recognise fair dealing, in exchange for remuneration for those who invest in the creation of that material.

So for UK plcs, it’s balancing the knowledge economy and the rights of consumers to enjoy their work.

A: The exclusive right for making copies for sale doesn’t apply to performing sound recordings over the radio. Copyright holders had to cede that right to encourage radio. Also doesn’t apply to composers after their first performance, which was ceded to record labels so they could flourish.

With the internet, this is another case where perhaps there’s more to be gained by diminishing that withholding right, and allowing the technical innovation to take place, because the music industry relies on technological innovation to renew the ways people can use music, and to put arbitrary restrictions on development of new devices, to protect only one right, is rather foolish.

Ian Taylor: Disclosure – I’m non-execuctive director of Radioscope. Can music be distributed now digitally through DAB. The broadcaster pays for the right to do that but the recipient can copy pretty perfect music. Where dose the music industry want to pursue it’s interest. A: There are a number of ways, including broadcast flags, so that the content is scrambled.

Q: Would the broadcaster have to say that there was a flag? A: There needs to be a discussion. If you could record the top forty, that’s not a good idea.

The idea of ceding some rights, that’s a minority view. If there are labels that want to give up some of their rights, that’s up to them, but it shouldn’t be used as a stick to beat the industry with.

Q: Balance between convenience and price, if the price is too high, people will download illegally. If the price is low enough they will buy it. A: It’s important that we don’t try to fight against the changes we are experiencing now. It’s important that we give people what they want in a legitimate form. Looking at digital radio, rather than people being stopped, we’re rather make sure that they were enabled.

Q: Why is this more of a threat than audio cassette recorders? A: There’s a difference in kind in people making an individual copy, and making it available to millions.

A: We don’t see it as a threat, we see it as a bigger opportunity.

A: There are many models, subscriptions for example, and other companies are taking different views and the markets are deciding, so we’ll see continued innovation in terms of business models. we believe that the market should get on with.

Q: What I don’t want to end up with is a whole set of requests for the government to do something, because by the time they do tech will have moved on. But is the market capable of resolving this? A: Each business will resolve it as they see fit. But when you have four companies that control 80%, and thousands that are the rest of the 20%, the difference is that we are doing it differently.

Q: I can see the power of the new technology. Big boys are left floundering and small companies will move in. It’s very disruptive. A: I’m involved in an ISP that’s seeking licences to legitimise the music flowing, but the launch has delayed because the four major companies won’t licence. The free flowing issue is unacceptable to them. Mandating technological protection measures, from the major labels, is able to keep business models from becoming popular because of their control over the 80% of the music market.

A: But we’re already seeing some flex in this too. There were rounds of negotiations between iTunes and the major labels. If today you try to legislate to back one way of doing it, you’ll be behind the curve.

A: Last point to make quickly is that copyright law itself is undergoing a period of turbulence too.

7. Audible, SNOCAP – Brian Fielding (Audible Ltd) – Chriss McKee (Audible Ltd) – Chris Castle (SNOCAP)

Q: What protection do consumers have is Audible goes out of business? A: What audible has done is create a business on secure distribution, and were it not for our DRM and our ability to protect the files publishers wouldn’t have worked with us. Huge business for spoken word audio. If you put it out as MP3 you may as well give it away for free. So DRM creates incentive.

Q: How many rivals do you have? A: We were one of the first and we have survived, there’s really no one else doing exactly what we do. We are the distributor for spoken word through iTunes and amazon.

Q: Snowcap, record companies keep royalties and few filter back to the artists. Do you get round that? A: I question the premise. Record companies have an obligation to account to their artists for sales. The tricky part with online sales is that in the very beginning of the internet when you had a lot of online companies that were starting up and you could see a trend where they would all have different standards of accounting. So what happens is you get different means of accounting, and they have to be translated into the record company systems. That processes automated as best as is possible. Accounting systems have improved. We facilitate that process.

Q: What happens if DRM comes under attack from consumers? A: We have a proprietary DRM system, we can set the rules, it’s very flexible. But it is fair to say that if we were in a position that we were not able to distribute content with DRM we would have no business.

Q: Problem for libraries, is they need to get access after the DRM has become obsolete, and after copyright expired. Could you see a method enabling that? A: If you’re a library, you want a database of everything that’s ever been recorded and there’s no reason why that can’t be made available to the publc. I would object, however, if they had all our books and made them available in the clear to the public.

Q: You think they should be protected by TPM after copyright? A: Sure. Like the Beethoven symphonies. There are publishers who produce that sound recording, whose livelihoods depend on being paid. Not to say there’s not a model for limited public access under limited circumstances.

Q: Do you negotiate with iTunes a substitute DRM? A: They take our recordings and encode them with their DRM.

Q: But you’re satisfied that they can do what they like? A: We are satisfied their DRM is as good as our own. We have to answer to the owners, and we can protect their rights.

Q: Your DRM helps the customer behave legally? A: Well there’s been some discussion that the consumers don’t understand what their legal rights are, and that there are accepted practices. Benefits of DRM is that it allow people to do what they are allowed to do and no more, so they don’t need to know what the law is.

Q: I can see a strip across the top of a CD cover “buy this and we’ll make you legal”.

8. Publishers Association, Periodical Publishers Association – Hugh Jones (Publishers Association) – Rob Hamadi (Publishers Association) – Andrew Yeates (Periodical Publishers Association) – James Evans (Periodical Publishers Association)

Q: Do you have a view on the RNIB? A: Yes, they’re right and the solution is immediate dialogue with us, with the rights owners. Not just the publishers but the authors too as the authors are the copyright owners too, we just find a market for the content on behalf of the authors. RNIB are of course part of our market and we have to find a way of making our works accessible to them. We haven’t got this right, but we’ve been talking to the RNIB about how to provide access to a file in a secure way that we can monitor and control.

Q: But you need to have this discussion with Amazon. You supply them with the books? Can’t you talk to them to resolve this issue? A: We don’t supply them…

Q: It’s also the people who supply the text to speech readers. A: We have a pilot project with the RNIB, which is in need of government funding. There are technological issues, cost issues, and we all need to chip in.

A: We’ve been facilitated by the DTI, had meetings with authors, agents, etc. But I think we are very aware there are legal responsibilities, under disability legislation, and copyright, to provide access to beneficiaries to exceptions. What they want is our digital files as close to publication as possible, which is a considerable risk.

Q: How much are the new networks a threat? How much are you adjusting. A: We are adjusting rapidly. There is not a successful ebook market yet in this country but it is developing. Ebooks are not there, like paperbacks are, in public terms. Online delivery of journals, for example, something like 80 or 90% of journals are delivered electronically, therein lies a considerable risk. It is difference, in some ways it shouldn’t be, the checks and balances in copyright law, work quite well, and there’s no reason why they wouldn’t or shouldn’t work perfectly well with DRM as well.

It isn’t DRM that’s the problem. It’s like any new technology. Copyright has survived phonograms and computers. Technology isn’t the problem. We need to discuss with our friends and colleagues from the RNIB, for example.

Q: One of the things that network does is shift control from originator to the end user. And then gives the end user their own distribution network. A shift in model. Not so much that DRM is the problem but different DRM and uninteroperabilty will be a problem. A: Part of the debate is a three legged stool – consumers, DRM developers, distributors. Casting a bad light on the copyright owners, who really want to get as much access as possible to people. And developing ways to do this takes time.

There are standards developing but it doesn’t happen over night.

Q: You can see why noninteroperabilties would be a commercial benefit to some parts of the chain. Is the driving force going to be interoperability? A: We share some views with the Open Rights Group. Suw highlighted the problems of some companies locking people into to some platforms, but then you made the point of what if the customer rejects this DRM by not buying. In a sense that is the solution. It’s proper that customers should be able to say ‘I don’t like this, I won’t buy it’. That’s a right that the customer has, and industry can create several business models and one will succeed.

We are committed to interoperability and the key is open standards. As an industry we’re opposed to allowing any one tech interest to become a gatekeeper, who can impose themselves between us and our customers.

Q: There is a fourth leg, where people are wanting to preserve culture, or do research. But what we have is a huge body of knowledge which is ephemeral because you might go bust? A: I think we’re all aware that there’s legislation there to protect that. But there has to be a balance.

Q: you could separate out deposit for archive, and making something available during its copyright period. A: Yes, but there needs to be a trust element.

Q: I worry about this word ‘trust’. But the fact is you are dealing with a system where you don’t know who the recipient is. A: Surely the whole evolution of copyright works on this trust basis. The law is effective in itself because it provides for flexibility for fair dealing etc. and if those systems are trusted and understood by consumers, then the commercial systems could move forward.

Q: It is human nature to push to the limit to what is possible. if people don’t know what’s legal, they’ll push it to the limit. A: The fair dealing test is simple – where an activity is damaging to the rights owner then you hit a wall.

A: There are problems with deposit, e.g. how do you deposit a website? There are plenty of discussion about how to deposit digital media.

8. NCC, and two consumers – Jill Johnstone (National Consumer Council) – David Radcliffe (consumer) – Louise Ferguson (consumer)

Q: Good to talk to the consumers. What’s you’re view on what you’ve heard? A: What you’ve heard today makes a lot of sense, but as a consumer a lot of what I’ve heard worries me, such as a copy-protected CDs that they can’t put on their iPod. I think DRM is getting in the way. People have said DRM is allowing customers to do things, but I only see it stopping people.

Q: Just in the music industry? A: Primarily, I’m not experienced in these things.

Q: Children are more familiar with this environment than we are. A: We are concerned with more issues than just music, but music is where the pressures have come up to first. We are not necessarily opposed to DRM, it may have a role to play, but at the moment it stops people rather than enables people to do things.

Q: What’s your solution. Can we do this ourselves? A: We do need some rule of the game, I would like to see regulatory oversight of those rules, and we need to see all stakeholders involved. Consumers rights are addressed informally but consumers can’t understand their rights, and they don’t know, so we need to…

Q: Consumers ‘can’t’ do what they do do, we need to make what they are doing legal, whilst also protecting rights owners. A: We need balanced rules of the game, such as fair use, as well as rights for IP holders.

Q: Are you having this conversation with governments? A: We’re having this conversation with stakeholders, Gowers Review, and others.

Louise: I’m involved in product usability, and in general we’re seeing a complete lack of visibility in terms of what type of DRM is included. People are finding out afterwards.

Q Is this a labelling problem? A: Partly the problem, we have legislation on that but it doesn’t help. if we’re going to have DRM, we need standards.

Q: Who is going to do that? A: It’s not going to be the industry.

Q: Is there a commercial need to do this? A: If you go to iTunes you can’t move your music to another device.

A: It’s walled gardens.

Q: Are you saying apple has a big advantage? A: They are locking customers in. You can’t get it off your iPod you can’t put other file formats on.

DRM is being used to enact that lock in. If you download an ordinary MP3, it’ll play on any player, but iTunes limits which devices can unlock that DRM, they are forcing you to be locked in.

Q: Have apple stolen a march on the people? If you represent yourselves as consumers, normally the demand is for someone to do something about it and I’d like to know who and what. A: There has to be regulatory involvement, it can’t be left to the industry.

Q: Offcom? A: I don’t know who, but this is an issue of public interest. We’ve seen the consequences.

A: As more consumers, and we’re not just consumers, we are citizens who create our own content. Offcom recognises that consumers are creators, but all the systems we see at the moment deny this fact, and any approach to future policy should accept that we are not just passive consumers of corporate content.

A: You can sent principles, of what consumers have a right to expect. Then you can establish a principled approach to how consumers can seek redress. There are things that can be do within a regulatory framework to establish better protect the consumer.

Q: Headache because regulatory must be technology neutral. Who are they protecting? A: It’s consumers, but any regulation would have to balance all stakeholder interests and what we’re getting here is that the industry is not capable of deciding.

Q: Sony didn’t do it on purpose. A: It’s a failure of the software, and the fact that citizens are also consumers.

Q: There’s a generic problem there about software’s reliability. A: It’s not reliability, it’s design.

Q: There are plenty of bits of legislation that ought to apply, and we should look at that. And the Sony thing looks like part of that discussion. My worry is how to balance the interest of the consumer who already does more than they legally can do, and the commercial interested of the rights holder so that they can get their own … A: We’re facing an imbalanced situation. It’s like saying ‘there are a few criminals so let’s tag the entire population’.

A: It goes back to what can consumers can do?

Q: Do we need a public debate on what consumers rights should be? We’ve heard basically that consumers have no rights? Should we have a debate on what the normal rights should be? A: Yes, you do need much wider debate, and this committee and inquiry is part of that, but once you’ve had that debate something needs to be done to get more balanced legislation, which is in everybody’s interest.

9. FIPR – Ross Anderson

Q: Any comments about any of of the conversation you’ve heard so far. A: One thing that strikes me is how different it is than what we would have heard a year ago. And what’s happened is a radical shift in power from the music industries to Apple. A year ago, all the music people would have been behind DRM, but now the doubts are creeping in.

It’s going to be significant for legislators because this isn’t just about music. The crypto that blocks your CDs, will also block your printer cartridge and your car spare parts. So this technology moves from field to field, and parliaments and the courts are going to need more mechanisms for these issues, rather than specific kludges for each industry.

Q: Dangerous for us to dig too deep into one sector. parliamentary legislation is a four year cycle at best. Q: You said that the legislature should look at it, but can the industry self-regulate? A: One would hope that as a matter of principles that specific cases get dealt with in court rather than regulation, but it’s a matter of concern that the printer ink cartridge is dealt with in court in the US, but directives in EU. So we need to empower people who feel themselves to be injured to be able to seek remedy. Parliament should be acting on a much larger, slower timescale.

Q: The industry is international and EU should not be isolated. Q: The trouble is that if we asked for interoperability, there’s a problem when someone comes up with a new design. A: The fundamental problem is that you’ve got all the issues that run towards creating monopolies.

So it’s conceivable that Apple could end up with a monopoly for the next 20 years. Then you have to think about what you do about that and if you do something what is it? What are the options for countries where Apple’s not doing its business majority.

Q: You’re looking at existing, not new technologies. A: The industry has more worries about monopolies than new tech.

Q: Difficult for us to make a judgement on how to react on an issue that is clearly of concern. Hard to relate this back to what we should do about it. Q: if we were here in a year’s time… should we just take a deep breath for a bit? A: Someone remarked that the industries are getting more power, and i suspect this is because the indies have higher internal rate of return, because they are smaller, and this is more in line with artist aspirations, and this lines up with the public, selling for more money with more rights given to the consumer, rather than cheaper with less rights that the majors do.

Maybe the four big players of the future are Apple, Microsoft, Sony and Google.

Parliament needs to create an environment in which this is mitigated.

Q: What can we do with legislation? A: Revisit the contract terms legislation, because people have to sign EULAs. Also, look at fruit of the poisoned tree clauses, e.g. clause 42 of the patent act. So you could have a rules saying that you lose your legal protection if your DRM abuses people’s rights.

That would be feasible under current framework.

In the US, consumers have more effective aspect to the course because the loser doesn’t pay the winner’s costs. So if I buy a CD and can’t rip it, I should be able to build a case and take it to court. Needs to be a broader discussion of public access to law.

[End of my notes. There was a short discussion about whether that sort of change in the law would cripple SMEs, but that’s not really relevant to DRM and my fingers were tired.]