The right to innovate, and the ability of citizens to benefit from and shape the technology they use, is a core value for ORG. We are concerned to make sure that ‘intellectual property’ (IP) – or patents, copyrights and trade marks – are evaluated for their role as an economic incentive, and are not abused to unfairly restrict the rights of others.
During the Digital Economy Act debates, politicians had recognized that copyright was frequently being unfair to consumers. They had noted that the law might need to make copyright more flexible, especially to grant user rights like format shifting, to legalise the act of copying music from a CD to an MP3 file.
Later in 2010, the new Conservative-Liberal Democrat administration signalled its desire to look at IP and make sure it was able to deliver economic growth. David Cameron launched a large scale review of copyright and patents, asking why it was that UK copyright law was so restrictive such that a company like Google wouldn’t choose to set up in the UK.
2011 was destined to be a critical year for innovation and modernising copyright so that it did not get in the way of technological progress and new business opportunities.
Opening up the political space for copyright reform has been one of ORG’s greatest contributions. We are by no means the only organization doing this: Consumer Focus, the libraries, and tech companies are doing it too, but ORG has been one of the key voices, as the only citizen-based NGO making a serious contribution.
The Hargreaves Review emerged from the dissatisfaction of politicians and perhaps also the Business Innovation and Skills department (BIS) and the Intellectual Property Office (IPO) with the Digital Economy Act. Why had it failed to address the need to modernize copyright, and instead concentrate solely on enforcement? Even the proposals that had made it into the Bill, like proposals on orphan works (such as out of print books whose copyright owner cannot be traced) had in the end been dropped.
The Review had forward-looking people on its panel, and ORG did a lot to keep in touch with every level of the review. In 2011, we submitted a full response to the questions.
The Review’s recommendations are ambitious but sensible. Following their release, we have worked very hard to contribute evidence and participate in the IPO’s work.
Most significantly, we have worked on the exception for parody, partly because of the free speech and innovation concerns, and partly because there is no other organization that would be likely to take on this work. Unlike format shifting, which is a consumer issue and priority for Consumer Focus, or data mining, which impacts libraries and academics, nobody else was likely to push for this reform.
Nevertheless, ORG is very interested in the other issues in Hargreaves, and we have been working on exceptions for text mining as well as format shifting.
In November we established, through the answers to questions tabled by Julian Huppert MP, that the Anti-Counterfeiting Trade Agreement (ACTA) had been waived through the UK's Parliamentary scrutiny process with little actual scrutiny. And the UK continues to support this flawed treaty. Whether ACTA passes is now in the hands of European decision makers.
There is concern about ACTA because its overly broad definitions, harsh punitive measures and lack of democratic validity make it a danger to how our Internet is governed and to freedom of expression and privacy online. Its drafting and passage through European decision making forums was woefully undemocratic, which is one reason it is so imbalanced. We helped promote the UK 'leg' of the Europe-wide protests against ACTA in February. The European Parliament has begun to express serious reservations about the treaty, and the European Commission has decided to ask the European Court of Justice for an opinion. We will continue to push for Parliament to reject ACTA, and promote a more fundamental, evidence-based reevaluation of intellectual property law in the digital age.
We have participated in the UK’s process to create some safeguards for net neutrality, led by Ed vaizey at DCMS. We criticized Ed when the process started for some very poor statements that really did not reflect the concerns and problems. The consultation process, between DCMS and the Broadband Stakeholders Group, has been relatively limited, and avoids the critical question of Ofcom involvement.
As an issue, it has yet to bite in the UK, but violations are increasingly common and potentially seriously damaging to innovation. This is particularly true for peer-to-peer.
Open Government Data
The Coalition started office with radical commitments to government transparency and accountability through the release of government data to the public. Last year, the policy started to shift towards data on public services. We have been building a broader coalition of consumer groups and civil society to ensure commercial interests are balanced.
Another big development in this area is the newly created Public Data Group (PDG), which will sell core reference data such as maps and weather. This new organisation will be balanced by a Data Strategy Board tasked with increasing the available open data form the PDG. ORG is engaging in the development of those new bodies and the composition of the board and other open data structures.
Archives and digitization
Access to public archives and libraries is taken for granted, but the digitisation of cultural materials that are not subjected to copyright currently generates new intellectual property and contractual restrictions, which diminish the availability of public domain materials in the digital world.
We have been working specifically with family history groups creating the Open Genealogy Alliance. We are producing legal briefings and research reports, e.g. on access to parish records.
We helped convince GalaxyZoo to open source key transcription software for archival data: a project that has invested substantial sums in development. ORG is also helping lobby for the opening of the civil register.
Lastly, we are helping create a new charity to undertake digitisation projects that preserve the public domain, primarily led by volunteers.
Digital Economy Act
Nearly two years after having been passed, the badly flawed Digital Economy Act is still yet to be implemented. ORG intervened last year in the Judicial Review of the Act brought by BT and TalkTalk, submitting evidence on the 'proportionality' of the Act, and raising questions about the evidence gathered about infringers, privacy issues and the impact on public wifi. The challenge recently failed at appeal stage. Subject to a further appeal to the Supreme Court, this clears the way for implementation of the Act.
The two pieces of the Digital Economy Act jigsaw that are still to be finalised are the Sharing of Costs Order and the Initial Obligations Code. Both are proceeding through notification to the European Commission. The latter is expected to be particularly problematic, with problems remaining for the provision of public WiFi, the standards of evidence required against alleged infringement and the appeals process. The development of the revised Obligations Code has been significantly delayed due in part to the Judicial Review. However, indications are that the regulator Ofcom has failed to fully address our core issues. We expect the updated Initial Obligations Code to be published shortly.