Friday, March 20, 2009

OGC finally publish the Gateway Reviews of the ID Cards system

From the ever informative SpyBlog:"

The Office of Government Commerce, an Agency of Her Majesty's Treasury, has finally publish the two Stage Zero Gateway Reviews of the ID Cards programme

It has taken- 1510 days i.e. 4 years 1 month 18 days after the initial Freedom of Information Act request, which should, according to the law, and the principle of "open government" and public transparency, have taken no more than "20 working days".

The OGC has spent at least £120,000 on legal fees alone, and probably a similar amount of public money again has been spent by the Information Commissioner's Office and the Information Tribunal.

See the OGC FOIA disclosure page.

Here are the two documents, which were kept so secret, that the OGC initially refused to let even the Information Commissioner have copies of them.

Here are the documents which caused the Government to invoke the Bill of Rights 1689 against the Information Tribunal's first decision to support the Information Commissioner''s decision to permit full disclosure.

Both the information Tribunals decided to redact or censor the names of the Assessors doing the Gateway Reviews,and the names of the people who were interviewed about the project.

Here is some early commentary and analysis:

Thursday, March 19, 2009

Strategic Advisory Board for IP priorities for copyright

In the thick of other things I missed the Strategic Advisory Board for Intellectual Property Policy's (SABIP) publication last week of a very clear paper setting out its priorities for its copyright work programme. It identifies an interesting set of issues and actions:
"1. The role of copyright in stimulating creativity
and innovation...

SABIP will investigate how different types of copyright law7
enhance or reduce creative output. Does the system assist
creators in earning appropriate rewards, notwithstanding the
apparently widespread illegal and unpaid-for dissemination
of products? SABIP will analyse differences in returns
to stakeholders within national copyright frameworks of
varying approaches and will further explore the implications
of technologies of mass copying and distribution on these
returns. Is the existing system equipped to respond
appropriately to the effects of the new technologies?


2. Ownership and coverage of copyright...

SABIP will undertake research into alternative approaches
to copyright coverage which distinguish between
economic and moral rights and their potential advantages
and disadvantages. SABIP may, for example, conduct
comparative studies of copyright legislation in other
countries where the respective emphasis on moral and
economic rights differs from that in the UK. Notwithstanding
the diffi culties of effecting change within the context of the
relevant internationally binding treaties and agreements,
SABIP will also consider the likely economic and social
impact of potential changes in the law...

3. Rights management techniques and technologies...

SABIP will review the effects on the various parties
(creators, publishers and other providers, professional and
other users) of the adoption of Digital Rights Management
(DRM) Tools. In doing this, SABIP will explore sectoral
differences and the effect of external deterrents or any
barriers on take-up. SABIP will seek to identify the patterns
of use of DRM tools, their individual benefi ts and weaknesses
and their overall implications for various stakeholders...

4. The relation between copyright and contract...

SABIP will examine the relative effects of copyright law,
contract law and DRM/TPM technologies on incentives,
distribution of fi nancial rewards and the protection of user
freedoms. Do standard form contracts limit or hinder user
freedoms in particular creative sectors? SABIP’s research
programme may also explore evidence around claims that
creators lose out in the negotiation over contract terms.
SABIP will compare how legal models used elsewhere offer
protection to creators’ economic interests and moral rights.
In the light of this analysis it will consider whether there is a
case for amendment to the balance of UK copyright law in its
relation with contract law and how such a change could be

5. Simplifi cation of the copyright framework...

SABIP will investigate the perceived and/or actual
drawbacks of current copyright law in terms of its
complexity. For example, which provisions are narrowly
defi ned and therefore not relevant or comprehensible or
which boundaries of exceptions are unclear or confusing?
What impact does this complexity have on willing compliance
by users?
SABIP will consider what, if any, specific steps would
benefi cially simplify the law and rationalise the provisions
of the 1988 Act regarding copyright, in order that it is
widely accessible and comprehensible, as well as being
appropriately enforceable by those whose legitimate
interests are undermined by breaches of copyright.

6. Attitudes & Behaviours in the Digital Economy:
Implications for IP...

SABIP will: continue to explore the relationship between
the general understanding of the copyright framework and
compliance with the copyright framework; the extent to
which this framework is felt to be “fair”; effective means of
education as to copyright rights and responsibilities; and
the effectiveness of current or prospective enforcement
techniques. For example, SABIP will investigate whether
new types of content producer are aware of the copyright
protections available to them, and whether they are able to
deploy the system effectively.
The first phase of this project, a literature review, is due to
be completed in April this year. The fi ndings of the review
will be presented at a stakeholder workshop that will
contribute to the development of a large-scale consumer
survey into attitudes and behaviours in the digital economy
and their implications for Intellectual Property."
The hugely positive aspect of all of these research proposals is that they are firmly rooted in the notion of generating empirical data and analysis to inform policymaking. Each one of the six proposals is potentially a huge undertaking on its own if they are to be done properly, so hopefully SABIP have the substantive funding to support them. SABIP are planning to make their first substantive evidence-based policy recommendations within the next 12 months. Evidence-based intellectual property policy making - now that would be a paradigm shift! They are also inviting comments on the scope of their proposals.
"The Board and its Expert Panel will be developing plans for
undertaking this work programme over the coming months. This
process is intended to include both face-to-face discussions and
opportunities for written presentations on each of the specific areas
outlined in this paper. Any comments should be sent to info@sabip. most usefully by the end of May 2009."

Mixed news on copyright

There is some mixed news on copyright today. Firstly it seems that the Internet Service Providers' Association of Ireland (ISPAI) have rejected the demands of the music industry for a 3 strikes regime in Ireland, despite the recent Eircom settlement.
"This [threatened] legal action is spurious and there is no evidence of wrong-doing by Internet service providers... These actions could impact on user privacy, damage the development of new Internet services, and hurt Ireland's standing as an e-commerce hub."...

The statement added that ISPAI could not ignore the protection of privacy of user communications in Irish and European law "merely because it does not suit another private party.""
Next up the EU parliament has, according to ORG, postponed the vote on copyright term extension that was due to take place on 23 March.
"Amid intense lobbying in the European Parliament next Monday’s vote on the proposal to extend the term of copyright has been struck off in a shock move. Following a meeting of the presidents of the political groups in the European Parliament on Tuesday, and with controversy and a lack of consensus surrounding the proposal, MEPs have delayed voting till the end of April - just before this summer’s European elections. A trialogue discussion between the European Commission, Council and Parliament, set for the end of March, will now attempt to broker a deal to see if the directive will be allowed to pass.

MEPs are waking up to the reality that the proposal to extend copyright term doesn’t do what it says. It’s a terrible and unworkable instrument that will do nothing but bring copyright into disrepute in the eyes of consumers. If you’re concerned about the need for a fair and balanced copyright framework you must contact your MEPs now. Make your voice heard!

In other news this week Professor Martin Kretschmer, Director of the Centre for Intellectual Property Policy & Management Bournmemouth, and Horace Trubridge, Assistant General Secretary of the British Musicians’ Union, have been debating the copyright term extension proposal. Additionally copyright creators in the Association for Fair Audiovisual Copyright in Europe have launched a petition against the proposal.

But right now the most important thing is to contact your MEPs and tell them why copyright term extension is a bad idea! Use our web banners and spread the word."

Also from ORG: A Digital Rights Agency: “an industry owned, industry led and industry run body”

"Last Thursday the Open Rights Group along with many others made a submission in response to the Digital Britain Report. In that submission, we said:

This action has the potential for much harm. We call on the final Digital Britain report to
reject the idea of a ʻrights agencyʼ.

Less than 12 hours later, we found David Lammy and Stephen Carter launching a consultation into the shape of the ‘Digital Rights Agency’.

It is hard to believe that either minister had processed the responses on exactly this question in the space of twelve hours. More concerning still is the comment in this new document from Lammy and Carter that:

“fundamentally this has to be an industry owned, industry led and industry run body.”

This is precisely the problem we have with the idea of a Digital Rights Agency. Rather than working out what a legitimate and balanced future of copyright and enforcement looks like, the problem gets handed over to the people most worried about enforcement. This is what we wrote in our submission which no doubt Lammy and Carter were busy reading over breakfast:

The proposal seems to be at heart a way of extending the MoU process without a clear idea of how to resolve the underlying problems.

Overall, we doubt that a rights agency would be able to adequately reflect users and citizenʼs rights, have a tight remit and offer value for money.

We have emphasised that any agency would have to include representatives of consumer interests, so that concerns such as protection of the innocent, and preservation of privacy are given proper weight. We would not wish the role of defending customers to be filled by ISPs alone, especially as many of them are also rights holders, with conflicting business interests.

There are other key stake holders who would need to be represented, including at least Consumer Focus, UK Online Centres and the Information Commissionerʼs Office. However, because of the nature of such an agencyʼs work, we are equally sure that non-statutory groups would likely be very cautious about engaging in its work.

A rights agency we assume would be in effect a semi judicial process, with a duty to co-ordinate enforcement of sanctions below the level of court action. While there may be merit in, for instance, overseeing the nature of letters sent to consumers, there are also potential problems. A ʻrights agencyʼ could quickly be involved in inappropriate attempts define a range of sanctions below the level of court action.

A ʻrights agencyʼ could easily be a body whose functions quickly sprawl, especially under pressure from rights holders if their business models continue to change too slowly to meet market demands.

From a public perception point of view, innocent consumers would be paying through their broadband bills for the enforcement of third party rights. This doesnʼt seem like a wise option for a government looking for public consent.

You can add your own public comments on the proposal for a Digital Rights Agency here."

Mark Thomas DNA removed from police database

Also writing in the Guardian, comedian Mark Thomas tells us he has managed to arrange to have his DNA and fingerprints removed from police records. The police agreed to remove his details after he had threatened to issue judicial review proceedings, in the wake of the Home Secretary's lack of substantive response to the European Court of Human Rights ruling against the UK government in December (S. and Marper v The UK).
"Until Tuesday I was one of 800,000 innocent people in the UK who had their DNA on the police database. Most of us had a swab sample taken on arrest and our identifiable cell clusters have languished on police files even if charges were dropped or we were found not guilty in court.

In 2003 I was arrested at a protest against the arms dealer BAE Systems and charged with causing £80 worth of damage to a bus. Leaving aside the irony that if any BAE Systems products only caused £80 of damage the purchasers would sue for a refund, seven months later I found myself on trial. After two days I was acquitted on the legal technicality of being innocent. More important, the court found there was no evidence for a crime having been committed in the first place. The experience left me frustrated, with only a 20-minute comedy routine to take away the pain of injustice...

On Tuesday the police replied with one line: "I can confirm that a decision has been made to delete your client's fingerprints and DNA sample and DNA profile." No explanation why.

Victory celebrations, though, might be premature. As the law remains unchanged it leaves the onus on individuals to write to the police seeking removal. Helen Wallace, from the NGO GeneWatch, says she has received "copies of letters from lots of individuals who have not been convicted of any offence who are being refused removal from the database". As Jacqui Smith has dodged the issue it is up to us. There are 799,999 of you out there, mostly pissed off, some eligible for legal aid, and everyone with the motivation to do their bit in rolling back the data state. Go on, write in."

I assume the suspected sewer grating photographer, Stephen Clarke, will have taken note. Mark Thomas may not have had to go as far as a judicial review - presumably whoever got the job of reviewing his request for removal noted he was an outspoken comedian who would definitely pursue the issue and took the necessary pragmatic decision in order to avoid expensive and publicly embarrassing litigiation - but I expect one of the 800,000 or so will eventually take it before a judge.

Minister seeks power to approve school textbooks

According to the Guardian, the government is now seeking the power for ministers to specify which authors' works would go on the school curriculum.
"The schools secretary, Ed Balls, is seeking a new legal power to dictate the basic content of every public exam in England, in a move that would give him or any future secretary of state the right to decide which books children must study at GCSE or A-level.

The law would allow the government to set "minimum requirements" for qualifications. One senior exam board source said it would give ministers "mind-boggling power" over exams if it got on to the statute books.

Opposition MPs will attempt today to remove from the apprenticeships, skills, children and learning bill the clause that gives the secretary of state control of basic qualifications content. Guidance published alongside the bill says it could be used to specify "which authors' works needed to be studied for someone to gain a GCSE in English".

Ministers insist the power would be exercised only as a last resort, to preserve the teaching of Shakespeare, for example, if there was a suggestion it should be scrapped from the curriculum."

What's worrying is that some of them probably even believe that bit about saving Shakespeare.

Wednesday, March 18, 2009

Copyright term again

Less than a week now until the EU Parliament votes on the latest copyright term extension proposals and I'm reminded, naturally, of Jefferson and Macaulay but also, more recently, a lecture by Sir Hugh Laddie in 1995 (the IP Institute Stephen Stewart Lecture), subsequently published in the European Intellectual Property Review journal the following year (Laddie, H. (1996), "Copyright: over-strength, over-regulated, over-rated?", European Intellectual Property Review, Vol. 18 No.5, pp.253-60.) Discussing the then relatively new EU copyright term extension directive of 1993, Laddie had this to say:
"As a result of the Term Directive, the copyright in the first category of works, that is to say, literary works and so on, is now life of the author plus 70 full years. This additional 20 years has been imposed throughout the Member States of the European Union to bring us into line with the domestic law of Germany. As is now familiar in copyright law, the process was one of leveling up the protection rather than levelling down. The result of this new term is that if, for example, a young computer programmer writes a new piece of computer software, he generates a monopoly which will normally last for over 100 years. Depending on his longevity, it may last more than 150 years. Similarly, if a politician writes letters or speeches which are of general historic interest, they also may be protected for a century or more. Indeed, if a modern-day architect were to design a new Albert Memorial, he would have the satisfaction of knowing that his copyright is likely to be sprightly and in the prime of life long after the concrete and steel of his architectural creation have started to crumble.

The question to be asked is: what justification is there for a period of monopoly of such proportions? It surely cannot be based on the principle of encouraging artistic creativity by increasing the size of the carrot. No one is going to be more inclined to write computer programs or speeches, compose music or design buildings because 50, 60 or 70 years after his death a distant relative whom he has never met might still be getting royalties. It is noticeable that this expansion of term is not something which has only occurred in the last decade. On the contrary, it has been a trend which has been in evidence for the whole of this century. Before the 1911 Act, the term of copyright in artistic works extended to seven years after the author's death. In 1911 this was extended to 50 years after death. The growth of term is in fact greater than these figures suggest. Life expectancy in 1910 was far shorter than it is now. The result is that a monopoly which was expected to last about four decades in 1910 should now be expected to last on average more than three times as long.

Indeed, I believe that the same criticism of excessive duration can be leveled at the 50-year flat term which applies to films, recordings and broadcasts. It may be possible to pick out a few creations of exceptional artistic or commercial merit where one could argue for lengthy protection - for example, the recordings of Rostropovich or the Beatles - but is it right that all copyright should be protected on the basis of what might be thought justified for the exceptional few? Furthermore, it is possible to argue that these long copyright terms are not necessary to protect the commercial exploitation of the works themselves. Most works protected by copyright are exploited very rapidly, if at all. This is so whether we are considering films and records or literary works such as computer software. Even books such as those that win the Booker prize are only commercially successful for a short time and then, to all intents and purposes, pass away. Yet the dead hand of copyright lingers on, in most cases serving no useful purpose.

Another of the problems with copyright law is that, unlike inventions protected by patent or designs protected by registration, the requirements for qualification are so low as to be virtually non-existent. Virtually any written material, any sketch and any film footage or sound recording is automatically protected. This has practical consequences. In Elanco v Mandops, the Court of Appeal accepted, as it had to, that a label of instructions placed on the side of a barrel of herbicide was a copyright literary work. No doubt depending on the youth of the literary genius who wrote it, the label will be protected for more than a century and perhaps for as long as a century and a half - certainly well beyond the date when for safety or commercial reasons the product has been removed from the market. So one of the troubles with copyright, then, is that it springs up to protect nearly every creation of the human mind, be it ever so trivial. As another member of the judiciary put it, the fact that our system of communication, teaching and entertainment does not grind to a standstill is in large part due to the fact that in most cases infringement of copyright has, historically, been ignored...

It would be possible to go on criticising the width of our copyright laws, but perhaps I have said enough. It might be more useful to inquire why our law has developed as it has. I have mentioned already the value and size of the industries which now believe they need extensive copyright protection to safeguard their income stream. They, quite properly, lobby for their interests. But who lobbies against them? There is no trade union of copyright infringers. Support for any limitation on copyright is easily portrayed as support for pirates - the usual pejorative global expression for infringers. It is depicted as support for the parasites of industry. Is it surprising, then, that the scope of protection gets ever wider? I suggest that the drafting of the legislation bears all the hallmarks of a complacent certainty that wider copyright protection is morally and economically justified. But is it?"
Laddie, who died in November last year, was widely respected round the world as an IP litigator, judge (he was a High Court judge between 1995 and 2005) and educator (Prof at ICL). It would be sad if the EU were to ignore his and countless other renowned IP experts advice and press ahead with this ill conceived measure.

Tuesday, March 17, 2009

Report on Kingsnorth climate camp policing

From BritCit Blog:

Lib Dem MP David Howarth has been highlighting the disturbing treatment of peaceful protestors by police at a climate camp in August last year.

"Government justified the heavy-handed approach by revealing that 70 police officers had been injured policing the protest; but a freedom of information request revealed that these 'injuries to police' included such things as heatstroke, toothache and insect bites. Vernon Coaker, the Home Office minister who had made the claim about police injuries, was later forced to apolgise to the House and admit that "there were no recorded injuries to police officers sustained as a result of direct contact with the protestors".

Here are the links to the report and appendices:

Sadly if you prime a large body of police to expect trouble and send them into an area where people are gathering for some event, you can't be surprised with the predictable results. The resultant inevitable conflict does a disservice to dedicated police officers and the general public, stoking up tension, suspicion and lack of trust, when a stable democracy requires mutual respect between the two.

Maybe if the headline chasing politicians, wanting to claim they are cracking down on criminality and terrorism, were charged with reckless disregard for public safety, every time they engineered this kind of clash, there would be more responsible decision making in the higher echelons of government and the police service? I wonder if the attempts by the government to smear the protestors after the event would be actionable under the UK's defamation laws (assuming some of these claims were specific enough and made outside the cloak of parliamentary privilege)?

Ironically even the minister's attempt to backpedal was not entirely accurate - he said in his letter to David Howarth:
"Kent police have informed the Home Office that there were no recorded injuries to police officers sustained as a result of direct contact with the protestors."
Yet Appendix 1 of the report lists 4 incidences of police officers' bruising as a result of "Assault by another person".

Schneier on privacy and data toxicity

Bruce Schneier has been writing eloquently about privacy again.
"Welcome to the future, where everything about you is saved. A future where your actions are recorded, your movements are tracked, and your conversations are no longer ephemeral. A future brought to you not by some 1984-like dystopia, but by the natural tendencies of computers to produce data.

Data is the pollution of the information age. It's a natural byproduct of every computer-mediated interaction. It stays around forever, unless it's disposed of. It is valuable when reused, but it must be done carefully. Otherwise, its after effects are toxic.

And just as 100 years ago people ignored pollution in our rush to build the Industrial Age, today we're ignoring data in our rush to build the Information Age...

Society works precisely because conversation is ephemeral; because people forget, and because people don't have to justify every word they utter.

Conversation is not the same thing as correspondence. Words uttered in haste over morning coffee, whether spoken in a coffee shop or thumbed on a BlackBerry, are not official correspondence. A data pattern indicating "terrorist tendencies" is no substitute for a real investigation. Being constantly scrutinized undermines our social norms; furthermore, it's creepy. Privacy isn't just about having something to hide; it's a basic right that has enormous value to democracy, liberty, and our humanity.

We're not going to stop the march of technology, just as we cannot un-invent the automobile or the coal furnace. We spent the industrial age relying on fossil fuels that polluted our air and transformed our climate. Now we are working to address the consequences. (While still using said fossil fuels, of course.) This time around, maybe we can be a little more proactive.

Just as we look back at the beginning of the previous century and shake our heads at how people could ignore the pollution they caused, future generations will look back at us -- living in the early decades of the information age -- and judge our solutions to the proliferation of data.

We must, all of us together, start discussing this major societal change and what it means. And we must work out a way to create a future that our grandchildren will be proud of."

Monday, March 16, 2009

Students blog important environmental trial

Now here's a valuable way to use computers in education: Student bloggers give public a seat at Grace trial
"A cadre of journalism and law students from the University of Montana is providing a virtual window on what many are calling the most extensive environmental criminal trial in U.S. history.

Paired together in two-hour shifts, a law student and a journalism student provide daily, continuously updated online coverage of the W.R. Grace & Co. trial in U.S. District Court in Missoula through their blog,

Communities in Montana and around the country were exposed to asbestos-contaminated ore that W.R. Grace mined and shipped from Libby, Mont. Lawyers for Libby residents contend the pollution has killed some 225 people and sickened about 2,000 in Libby.

Now, W.R. Grace and five former company officials face criminal charges of knowingly endangering lives by hiding the health risks of asbestos."

Amazon DMCAs vendor of ebooks for Kindle

According to Declan McCullagh Amazon has threatened to sue under the DMCA to stop the latter company making available electronic books that could be read on the Amazon Kindle ebook reader.
"This week, an e-book Web site said invoked the 1998 law to prevent books from some non-Amazon sources from working on its Kindle reader.

Amazon sent a legal notice to complaining that information relating to a computer utility written in the Python programming language "constitutes a violation" of the DMCA, according to a copy of the warning letter that the site posted. is an e-book news and community site. forum moderator Alexander Turcic said in a post on Thursday that although he did not believe the program violated the law, the site would "voluntarily follow their request and remove links and detailed instructions related to it." Turcic said that, contrary to Amazon's claim, his site never "hosted" the software.

Amazon did not respond to a request for comment on Friday."

As ever IP-land is like groundhog day - same story repeated over and over with some variations. Shades here of Apple v RealNetworks ("ethics of the hacker...breaking into the iPod" etc. - Apple loves and extensively threatens the DMCA from iPods to iPhones), Lexmark v Static Control (blocking competitor selling cheap printer cartridges for Lexmark printers), and Chamberlain Group v Skylink (the DMCA and garage door openers).