Online Copyright Infringement and DEA consultation – my response

Ofcom sought views on a code of practice called “the Online Copyright Infringement Initial Obligations Code” as outlined in its document Online Infringement of Copyright and the Digital Economy Act 2010. The consultation page is here. The consultation document is here.

My response:

Question 3.5: Do you agree with Ofcom’s approach to the application of the 2003 Act to ISPs outside the initial definition of Qualifying ISP? If you favour an alternative approach, can you provide detail and supporting evidence for that approach?

I do not think Ofcom’s position is sufficiently clear to either agree or disagree. Paragraph 3.23 states:
“Where a Wi-Fi network is provided in conjunction with other goods or services to a customer, such as a coffee shop or a hotel, our presumption is that the provider is within the definition of internet service provider.”

However it is not clear what is meant by provider. So for example, consider a Starbuck’s coffee shop which also provides Wi-Fi. Is the provider the individual coffee shop, or is it the entire Starbuck’s chain? Similar questions apply to hotels, libraries, airports and other providers of Wi-Fi access. Even with this issue clarified, it is not at all clear how such providers of Wi-Fi would be expected to count their subscribers, or even how a subscriber could be defined.

Question 3.6: Do you agree with Ofcom’s approach to the application of the Act to subscribers and communications providers? If you favour alternative approaches, can you provide detail and supporting evidence for those approaches?

Paragraph 3.31 states:

“Those who wish to continue to enable others to access their service will need to consider whether take steps to protect their networks against use for infringement, to avoid the consequences that may follow.”

It is entirely unreasonable to expect users to police the use of their networks. Users should not be held to account for the activities of those who use their networks without permission, whether or not that network is protected. If someone steals a tool from my garden shed and uses it to commit a crime I am not liable for that crime, whether or not my garden shed was locked.

Question 4.2: Do you agree with our proposal to use a quality assurance approach to address the accuracy and robustness of evidence gathering? If you believe that an alternative approach would be more appropriate please explain, providing supporting evidence.

The DEA states:

“124E Contents of the Initial Obligations Code
2.26 This sets out what the code underpinning the initial obligations (whether an industry code or Ofcom’s own code) must contain. The code must set out the process by which the initial obligations will operate and the procedures that copyright owners and ISPs must follow in relation to them. It must set out the criteria, evidence and standards of evidence required in a CIR and the required format and content of a notification letter sent to a subscriber. It must not permit any CIR more than 12 months old to be taken into account for the purposes of a notification.”

Note it states that the code “must set out the criteria, evidence and standards of evidence required in a CIR”. The DEA is quite clear here.

Ofcom is not discharging its responsibility to set out the criteria, evidence and standards of evidence.

Ofcom in not even saying that it will agree an industry standard code with ISPs.

Ofcom is saying that copyright owners should provide a Quality Assurance Report detailing the “steps taken to ensure the integrity and accuracy of evidence”.

Ofcom is saying that (paragraph 4.6) “it requires Copyright Owners to develop appropriate technical standards”. This is incredulous: technical standards do not lay within the domain expertise of Copyright Owners. It is much more appropriate for ISPs and Ofcom to develop the technical standards.

Ofcom also says (paragraph 4.4) “we are proposing that a Copyright Owner (or an agent acting on their behalf) should, before submitting their first CIR (and from then on an annual basis), provide Ofcom with a Quality Assurance report”. So not only can the Copyright Owner set their own standards, they don’t have to make these standards available for scrutiny until they submit their first CIR.

Ofcom says (paragraph 4.6) “it is similar to approaches that have been effective in other areas of Ofcom’s remit, e.g. ensuring the accuracy of communications providers’ metering and billing; and interference standards for TV transmission;”. This again is beyond belief, Ofcom is saying that the standard of evidence required for prosecution under the DEA should be similar to the standards required to avoid TV transmission interference. This position is also inconsistent with Ofcom’s position on CIRs. In paragraph 4.3 (in relation to CIRs) Ofcom states: “We believe that this matches the standard of evidence required by the courts in relation to civil proceedings by Copyright Owners for copyright infringement.”

So Ofcom is saying CIRs must meet “standard of evidence required by the courts in relation to civil proceedings”, yet the technical standards only need to meet the level of accuracy required for metering, billing and TV interference.

Does Ofcom not realise that a chain is only as strong as its weakest link? The overall standard of evidence in a chain is only as strong as the weakest piece of evidence in that chain.

Ofcom gives the impression that it regards the setting the criteria for evidence and standards of evidence as purely a technical matter, rather than both a technical and a legal matter. Has Ofcom even taken any legal advice on this?

Question 5.2: Do you agree with our proposal to use a quality assurance approach to address the accuracy and robustness of subscriber identification? If not, please give reasons. If you believe that an alternative approach would be more appropriate please explain, providing supporting evidence.

No. My objections are similar to my objections stated in my answer to question 4.2. In short Ofcom is not meeting its obligations under the DEA. Ofcom must “set out the criteria, evidence and standards of evidence”, it cannot defer this obligation to the ISP.

Question 7.1: Do you agree with Ofcom’s approach to subscriber appeals in the Code? If not, please provide reasons. If you would like to propose an alternative approach, please provide supporting evidence on the benefits of that approach.

Paragraph 7.8 states: “In exceptional circumstances it may be appropriate for oral hearings to occur and the appeals body will therefore be able to order a hearing.”

The subscriber should be able to request a hearing. If this request is denied the appeals body will have to justify why the hearing was denied.

In order to ascertain it there might be some systematic error in the process, subscribers must be able to request a list of all CIRs submitted by all Copyright Owners in relation to that subscriber. This would allow a subscribers to ascertain, for example, if some of the alleged infringements occurred when the subscriber was not at home.

300th anniversary of copyright

The Statute of Anne, the first copyright law, entered into force 300 years ago today, on the 10th April 1710. It established a copyright term of 14 years, which could be renewed for another 14 years if author was still alive when the first term expired (books already in print were granted a copyright term of 21 years).

The Copyright Act 1814 extended the copyright length to 28 years, and if the author was still alive when the term expired, the right of publication could be extended for the rest of the author’s life.

The Copyright Act 1842 extended the copyright term to the life of the author plus 7 years, or 42 years from the first date of publication, whichever was longer. Posthumously published works were provided with a 42 year copyright term.

The Copyright Act 1911 extended the term of copyright to life and fifty years (with certain exceptions).

The Copyright, Designs and Patents Act 1988 extended the copyright term to seventy years from the death of the author for literary, dramatic, musical or artistic works. If the author is unknown, copyright expires seventy years after the work is first made available to the public. If the work is computer-generated, copyright expires fifty years after the work is made.

In most countries around the world, copyright length is life of the author plus 50 years or life of the author plus 70 years

A Fair(y) use tale – Disney explains copyright

Eric Faden asserts fair use to cleverly and humourously explain copyright. He mashes up clips from Disney in his film A Fair(y) Use Tale:

Google Book Scanning Program

When I first heard about the Google Book Scanning Program, I thought: They can’t do that, it breaks copyright law. I now know this position is too simplistic.

So why did I change my opinion? Well, I bought an ebook reader. And quite a few of the books that were free were about copyright and copyright law. I read them. To my surprise I found it a fascinating subject. These books included Free Culture by Lawrence Lessig, The Public Domain: Enclosing the Commons of the Mind by James Boyle and CONTENT: Selected Essays on Technology, Creativity, Copyright and the Future of the Future by Cory Doctorow.

As technology advances the law needs to change to keep up. And, perhaps surprisingly, the law has been remarkably good at adapting itself to the advent of new technology. I’ll qualify that: when new broad laws or judgements are made they tend to understand the essence of the new technology and these laws or judgements tend to be remarkably robust, some are even almost prescient (the judgement that software should be protected by copyright law, not patent law, for example). However when new specific laws or judgements are made to address a particular problem the result tends not to be so good.

The pioneers of technology often find themselves in a grey area of the law, or even on the wrong side of the law. Lessig’s and Boyle’s books are full of examples:

• In the early days of aviation it was illegal to fly over private property, since the owner’s property rights extended indefinitely upward.
• When radio started broadcasting recorded music the artists complained that their “creative property” was not being respected and that they should be paid. This claim was rejected (when a radio plays a recording it only has to pay the composer, not the artist)
• Cable TV.  When companies first started wiring communities with cable television in 1948, most refused to pay broadcasters for the content that they echoed to their customers. Even when the cable companies started selling access to television broadcasts, they refused to pay for what they sold.
• VCR. When Sony produced the VCR the film studios claimed that, because the device had a record button, Sony was benefiting from the copyright infringement of its customers. Then MPAA president Jack Valenti warned, “When there are 20, 30, 40 million of these VCRs in the land, we will be invaded by millions of ‘tapeworms,’ eating away at the very heart and essence of the most precious asset the copyright owner has, his copyright. One does not have to be trained in sophisticated marketing and creative judgment, to understand the devastation on the after-theater marketplace caused by the hundreds of millions of tapings that will adversely impact on the future of the creative community in this country. It is simply a question of basic economics and plain common sense.”

Progress often requires technology pioneers to test the law. If Sony had just acquiesced and said “OK, VCRs are illegal, we won’t do those” it would have been to the detriment of everybody: the general public and the movie and television industries.

As technology evolves, the law adjusts. In the case of copyright sometimes this means more rights for creators, sometimes less. As Lawrence Lessig says in Free Culture:

In each case throughout our history, a new technology changed the way content was distributed.  In each case, throughout our history, that change meant that someone got a “free ride” on someone else’s work. In none of these cases did either the courts or Congress eliminate all free riding. In none of these cases did the courts or Congress insist that the law should assure that the copyright holder get all the value that his copyright created. In every case, the copyright owners complained of “piracy.” In every case, Congress acted to recognize some of the legitimacy in the behavior of the “pirates.” In each case, Congress allowed some new technology to benefit from content made before. It balanced the interests at stake.  In our tradition, as the Supreme Court has stated, copyright “has never accorded the copyright owner complete control over all possible uses of his work.” Instead, the particular uses that the law regulates have been defined by balancing the good that comes from granting an exclusive right against the burdens such an exclusive right creates.

The Google Book Scanning Program is just another case where the law must balance the interests at stake. It is certainly in the public interest that our cultural heritage is digitised and made searchable. It’s also in the interests of authors. It’s in the public and authors interest that out of print works are made available.

It’s not, however, in anyone’s interest that Google has a monopoly. But the way to avoid a monopoly is not to stop Google digitising books, but to get more people to do so. Amazon. Microsoft (which only recently stopped its digitization project). Government funded Legal Deposit Libraries (such as the British Library). The EU free access library Europeana.

It seems that after initial knee-jerk reactions people are coming to their senses. In July, Viviane Reding, EU Commissioner for Telecoms and Media, stated:

We should create a modern set of European rules that encourage the digitisation of books. More than 90% of books in Europe’s national libraries are no longer commercially available, because they are either out of print or orphan works (which means that nobody can be identified to give permission to use the work digitally). The creation of a Europe-wide public registry for such works could stimulate private investment in digitisation, while ensuring that authors get fair remuneration also in the digital world… Let us be very clear: if we do not reform our European copyright rules on orphan works and libraries swiftly, digitisation and the development of attractive content offers will not take place in Europe, but on the other side of the Atlantic . Only a modern set of consumer-friendly rules will enable Europe’s content to play a strong part in the digitisation efforts that has already started all around the globe.

On the 7th of September EU Commissioners Reding and McCreevy issued a joint statement: It is time for Europe to turn over a new e-leaf on digital books and copyright. In it they said:

…we also need to take a hard look at the copyright system we have today in Europe. Is the present framework still fit for the digital age? Will the current set of rules give consumers across Europe access to digitised books? Will it guarantee fair remuneration for authors? Will it ensure a level playing field for digitisation across Europe, or is there still too much fragmentation following national borders? What could be the contribution of Europeana, Europe’s digital library, when it comes to working on a European response to digitisation efforts in other continents? Is Europe’s copyright framework modern enough when it comes to digitising orphan works and out-of print works? These books represent the vast majority of European libraries’ collections (around 90%) . In our view, these books must be recovered and given a new lease of life.

Once again the law is adjusting itself to technology.

I’m a technologist. I love technology. But now I’m starting to love the law as well. I certainly understand why some people have a passion for the law.

Digital Britain Report and Orphan Works

On 16 June the Government published The Digital Britain Report, its strategic vision for ensuring that the UK is at the leading edge of the global digital economy. This report received a lot of coverage in the press because it:

• included proposals to throttle the internet speed of those caught illegally file sharing and allow Ofcom to force ISPs to collect data about those sharing files.
• recommended that every household have access to a connection of 2Mbps or more by 2012.
• proposed that households and businesses will have to pay a £6-a-year tax per landline telephone to extend internet access across the country.

I want to talk about something else: the report also contained proposals about the use of orphan works.

Orphan Works

So what are orphan works? An orphan work is a work that is in copyright and where, even after an extensive search, the copyright owner cannot be identified or found.

Orphan works form a large part of our culture and heritage that is virtually inaccessible. These works include books, photographs, movies and television programmes.

These works cannot be used without risk of civil and even criminal prosecution. They cannot even legally be digitized so that they can be searched. The quantity of orphan works is vast: the British Library estimates that 40% of its archive consists of orphan works and the BBC estimates that about one million hours of orphaned programmes are contained in its archives. All this material is effectively lost to humanity. The consequence for film is much more dire: old film deteriorates and will be lost forever unless it is preserved and restored. But no one is going to pay to restore film that cannot be shown.

The problems surrounding orphan works include:

1. Some works are physically deteriorating and may be lost entirely before they can be preserved or restored
2. Some works are effectively inaccessible to the public. They are only available to those who can access copyright libraries.
3. Some works are effectively inaccessible to anyone. They are not indexed, searchable or discoverable so their content cannot be found even by a dedicated searcher such as a historian, filmmaker or publisher with a keen interest in their content.
4. Orphan works do not generate income for their copyright holders
5. Orphan works cannot be republished, even by someone willing to pay the copyright holder, since the copyright holder cannot be found

You may recall the Mitchell & Kenyon Collection of films that was screened on the BBC a few years ago.  The films were rediscovered in the 1990s, after languishing for many decades in the basement of a shop in Blackburn. The films were expensively restored by the BFI (British Film Institute). These films give a fascinating view of Edwardian England and form the largest collection of early non-fiction films in the world. These films date from about 1900 and are out of copyright – this means they can be restored, copied and shown to the public.

Suppose someone found a collection of old films about the Second World War, or the Korean War, or perhaps showing some interesting aspect of our industrial heritage in the 1950s. Could the BFI legally restore and distribute them? Could the BBC show them as part of an educational or cultural programme? The answer is no, not without obtaining permission from the copyright owner(s). But how can the copyright owner(s) be found?

Suppose you found an old photo of your parents’ wedding, taken by a professional photographer. Could you have it professionally retouched? The answer is no, not without obtaining permission from the copyright owner.

When a copyright owner cannot be found projects which might benefit our national heritage are abandoned. Scholars cannot make use of letters, images, books and manuscripts. Publishers cannot republish old works that have been forgotten. Museums are frustrated in the creation of exhibitions, books and websites. Archives cannot make rare footage available to wider audiences. Documentary filmmakers must exclude important source material from their films.

Digital Britain Report and Orphan Works

To its credit the Digital Britain Report looks at the problems associated with orphan works.

The Executive Summary, paragraph 47 states:

we will also make some changes to the legislative framework around copyright licensing, to tackle problems such as those surrounding the use of so-called orphan works and thus help digital markets in those works to develop.

paragraphs 43 and onward in Chapter 4, Creative Industries in the Digital World state:

43. …In order to pave the way for a more effective framework to deal with orphan works, the Government proposes to introduce legislation to enable commercial schemes for dealing with orphan works to be set up on a regulated basis.

…However, the expectation is that anybody wishing to use orphan works will be expected to secure an appropriate permission from the Government first…

Where the Digital Britain Report falls down

The report fails to understand a fundamental point: there is the public interest case for making orphan works more easily accessible and there is the copyright holder’s interest in being reunited with their works, and those two interests are rarely in conflict.

We are currently in the lose-lose situation where works are inaccessible to the public, and where copyright holders are not getting credit or payment for their works. We need to find solutions that work in the public and copyright holders’ interests. Works need to be un-orphaned.

There are two main solutions being proposed, I’ll call these ask permission and ask forgiveness.

Ask permission

This is the approach currently favoured by Britain and the EU. It means anyone proposing to use an orphaned work must as a Government approved body for permission to use the work (after doing a due diligence search for the author).

The trouble with this approach is that it simply does not address the problem. It doesn’t help identify copyright owners. It doesn’t allow mass digitization for indexing purposes. It prejudices the legitimate rights of the copyright holder. It doesn’t address the fact that there are vast quantities of orphaned works.

The latter point is particularly damning. This approach has been adopted in Canada. Since 1990 the Copyright Board of Canada has granted permission for the use of 237 works, these include “the reproduction of Châtelaine magazine covers in a promotional calendar”, “the reproduction of two nursery rhymes in an educational textbook” and “the reproduction of six images of aliens (source unknown)”. This is hardly unlocking the lost works of Canadian culture. (See  http://www.cb-cda.gc.ca/unlocatable-introuvables/licences-e.html )

Ask forgiveness

This is the approach being pursued in the US. There, provided a user makes a documented, good faith, diligent but unsuccessful search for the copyright holder, the user is free to use the work. (Of course the terms ‘diligent’ etc need to be defined, but that is a matter of legal detail.) The user is indemnified against prosecution. If the copyright holder resurfaces then they are entitled to a reasonable compensation for use of their work (again the precise legal meaning of  ‘reasonable compensation’ needs to be defined – the US report goes into this in some detail).

Everyone wins. Our cultural heritage is unlocked, and copyright holders can get compensation for their works.

We need a digital archive of our culture that is available to historians, researchers and people who are simply curious. We need a means of republishing orphan works. We need to unlock our lost culture. Let’s not enact legislation that prevents all that.

References

Gowers Review of Intellectual Property

Taking Forward the Gowers Review of Intellectual Property

EU Digital Libraries High Level Expert Group – Copyright Subgroup’s Final Report on Digital Preservation, Orphan Works, and Out-of-Print Works

Statement of Marybeth Peters, US Register of Copyrights

United States Copyright Report on Orphan Works

Copyright Policy: Orphan Works Reform, Lawrence Lessig’s proposal

Illicit P2P File-Sharing and the law

Much of the discussion around the UK government’s Consultation on Legislation to Address Illicit P2P File-Sharing has been about whether the penalty of internet disconnection is too severe, or about what is or is not legal, or about what should be legal.

I’d like to talk about something else: what happens when someone is accused of doing something illegal. What happens is that we go through the criminal justice system. People who break the law are sentenced by a judge after due legal process. The sentence passed takes into account previous convictions, so repeat offenders are properly dealt with.

The “creative industries” think the law is too slow and want to be able to directly punish people, bypassing the legal process.

The government is proposing that, in the interests of expediency, Ofcom or a government minister can act as judge and jury. There is nothing special about the crime of illegal file sharing that means extrajudicial powers of punishment should be granted either to Ofcom or to ministers.

Once a minister has this power, who’s to say their judgement won’t be biased by, say, the fact that the accused has a blog that is critical of the government.

Mandelson seems to want to create a Judge Dredd for the internet. And the most frightening thing is that, with the current cabinet, he would be Judge Dredd.

Consultation on Legislation to Address Illicit P2P File-Sharing – my response

Here is my response to the Department of Business Innovations and Skills Consultation on Legislation to Address Illicit P2P File-Sharing. My response concentrated on the proposal that Ofcom, an administrative body, should be able to bypass the judicial process. There are many other problems with the proposed legislation – I choose not to address these since there are plenty of people addressing these in their responses. In particular we can rely on the ISPs acting in their own self interest to respond to a certain class of problems.

Dear Mr Klym,

This email is a response to the consultation document “Consultation on legislation to address illicit peer-to-peer (P2P) file sharing”. From now on I will refer to this document as “the consultation document”.

I am responding as an individual. My name and address is:

Martin Budden
[address removed]

I strongly disagree with the proposal to give “Ofcom power to impose other obligations” as outlined in paragraph 4.23.

There are number of reasons this power should not be granted.

i) The consultation document itself recognises that this power is contentious. Paragraph 4.23 states “this element of the proposal is new and will be contentious”. Indeed it is so contentious that the consultation document recommends, in paragraph 4.27, that this power is “subject to annulment by resolution of either House of Parliament” to “ensure that the power cannot be used frivolously”.

ii) The power has been rejected elsewhere. In France (see paragraph 3.19), the French Constitutional Council “ruled that the decision to suspend internet connections of digital pirates should be made by the courts as opposed to an administrative body”.

Furthermore the European Parliament has passed an amendment to the Telecoms Package that states that judicial ruling is required to impose restrictions on end-users (see paragraph 3.20). What’s more the European Parliament stated that this was in “accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information”. So if the government passed a bill that allowed Ofcom power to impose other obligations it would do so in the knowledge that the bill was in contradiction to European law, and that any challenge to that bill taken to the European Court of Human Rights would be likely to succeed.

iii) Industry itself has stated that taking legal action is “having a clear effect”. See page 18 of “IFPI:07 Digital music report” at http://www.ifpi.org/content/library/digital-music-report-2007.pdf (a document cited in the consultation):

“Surveys on levels of illegal file-sharing across different countries show that legal actions are having a clear effect. Studies also show that fear of legal action is an important factor driving consumers away from unauthorised P2P. In the US lawsuits were the most cited reason among internet households for changing from unauthorised P2P to legal downloading”

iv) I’ve save the most important reason for last: the consultation document is proposing to give extrajudicial punishment powers to Ofcom. This shows an unwarranted lack of faith in the judicial system. What’s more, even if the judicial system were deficient, the correct response would be to fix the deficiencies in the judicial system, not to bypass it.

Let’s look at the proposal in a little more detail:

“It is entirely possible that the obligations on notification and collection of anonymised information on repeat infringers that may lead to legal actions taken by rights holders that we set out here will not, by themselves, deter some infringers.”

In other words someone who breaks the law, and is punished by due process of law, may continue to re-offend. Well, this is true of any criminal offence, and the legal system has means to deal with it: a judge takes previous convictions into account when passing sentence. In the context of peer to peer file sharing this means, in the case of re-offenders, that a judge should be able to order ISPs to impose technical measures such as blocking, bandwidth shaping and filtering. It does not mean that the Ofcom should be able to bypass the judicial process and directly require ISPs to impose these technical measures.

Yours sincerely,
Martin Budden