Saturday, December 03, 2005

UK intellectual property review

The UK Treasury has announced a review of intellectual property.

"At the Enterprise Conference on 2 December 2005, the Chancellor announced that, as part of the Pre-Budget Report 2005 package, he was asking Andrew Gowers to lead an Independent Review to examine the UK’s intellectual property framework, reporting to the Chancellor, the Secretary of State for Trade and Industry and the Secretary of State for Culture, Media and Sport in Autumn 2006."

Under "scope" the final bullet point says

"The review will provide an analysis of the performance of the UK IP system, including inter alia...

whether the current technical and legal IP infringement framework reflects the digital environment, and whether provisions for ‘fair use’ by citizens are reasonable."

Which is interesting because we don't have "fair use" in the UK. We have "fair dealing" which though similar is not the same. "Fair use" in the US, for example, allows the making of copies of CDs for personal use, whereas "fair dealing" in the UK does not.

Friday, December 02, 2005

Dutch e-citizen charter

William Heath thinks the Dutch 10 point e-Citizen Charter might be what we need for Europe. I'll have to come back to this as other things are pressing but it raises all kinds of interesting questions.

Turning the Net into cable TV

David Bollier advises:

"Beware the privateers! They whisper sweetly of fantastic new services they will provide – a faster Internet, better quality, even medical alerts for consumers….and blah-de-blah. Their unspoken agenda, however, is to convert the open Internet commons into a pay-for-performance marketplace. The companies who control the “pipes” of the Internet – i.e., the telephone and cable TV companies – are starting to make their move.

It’s imperative that we pay close attention to these plans – and register our objections to Congress and the companies themselves."

Thursday, December 01, 2005

Copyright dispute over book cover

Thomas Friedman and his publisher, Farrar, Straus and Giroux, have been sued over the cover on his latest book, The World is Flat. (Interestingly enough I see Amazon UK have "No Image Available" for the cover at the moment).

Freidman used an image from a poster he'd bought many years ago, of a painting done by artist Ed Miracle, showing boats sailing over the edge of the world, which featured the caption "I told you so." His publisher had duly licenced the right to use the image from the poster company. The poster company, unfortunately didn't hold the copyright in the image. They only had a licence to sell about a thousand posters and that licence expired in 1996.

The author said: "We didn't try to cheat anybody. We did it [purchased the rights] through normal channels. We thought this was all legal, kosher, and right. I feel bad that this happened, and I couldn't feel more bad for him [Miracle]."

The artist's agent, Rose von Perbandt, said "Is there no one in the press that sees the irony of a book on globalization—whose author stresses the need to protect against piracy and strengthen intellectual property protection—that is infringing the copyrights of the artist whose work was used on the cover?"

It's a fair point, which goes to show that even those with an interest in strong intellectual property rights, including Pulitzer Prize winning journalists/authors, can sometimes accidently get entangled in the complexity of the current IP landscape.

IPPR report

The Institute for Public Policy Research has just released a report "Markets in the Online Public Sphere." As the author of the report Will Davies puts it the report covers "the politics and economics of online information, and why policy-makers find it so hard to accertain the 'public interest' in this confusing terrain."

Tuesday, November 29, 2005

President Bush disaster

I don't think Rupert Murdoch really would have wanted this image to come across the way it does...

Diebold ordered to supply source code

A federal judge has ordered Diebold to hand over the source code on its electronic voting machines to North Carolina state officials. From the EFF:

"a North Carolina judge today told Diebold Election Systems that the e-voting company must comply with tough North Carolina election law and dismissed the company's case seeking broad exemptions from the law.

EFF intervened in the case earlier this month, after Diebold obtained a broad temporary restraining order that allowed it to evade key transparency requirements without criminal or civil liability. The law requires escrow of the source code for all voting systems to be certified in the state and identification of programmers. In today's hearing, the judge told Diebold if it wanted to continue in the bidding process for certified election systems in the state, it must follow the law and if it failed to do so, it would face liability...

Diebold could appeal the ruling, go forward with its bid, or withdraw from the process. However, Diebold told the court that it would likely withdraw the bid if the company did not have liability protection.

North Carolina experienced one of the most serious malfunctions of e-voting systems in the 2004 presidential election when over 4,500 ballots were lost in a voting system provided by Diebold competitor UniLect Corp. The new transparency and integrity provisions of the North Carolina election law were passed in response to this and other documented malfunctions that have occurred across the country."

It is very good news that a judge should enforce transparency requirements on a voting machine vendor. Given that Diebold have explicitly now threatened to withdraw from the bidding process rather than hand over theie source code, it will be interesting to watch to see if they follow through on that. Transparency is fundamental to the democratic process and no amount of technology or commerce should be allowed to undermine that.

New UK Biometric Centre

The Home Office are planning to set up a new "Biometric Centre of Expertise" (who comes up with these names?).

Their Science and Innovation Strategy 2005-08 includes the oft repeated, wildly ambitious and completely fallacious claim that "The National Identity Card scheme will be a powerful tool to tackle identity theft, illegal working, terrorism and organised crime." It follows up later in the same paragraph (p14, para on "Identification") with "In recognition of its importance the Home Office is creating a Biometric Centre of Expertise within HOSDB." HOSDB stands for "Home Office Scientific Development Branch."

Public services and ICT report

The Work Foundation has published its final report on Public Services and ICT.

Nothing earth shattering. Basically it says -

ICT could transform public services but only if objectives are clear and the right ICT is used,

Staff at all levels are struggling to make ICT effective,

Leaders must be responsible for realising potential and managing risks of ICT,

"Customers must be segmented" (sounds painful but this is just an attempt at marketing-speak),

The ICT with the most attractive bells and whistles is not necessarily the best for the job,

Improve supply chain management,

Listen to the users when building ICT systems,

ICT has an impact on privacy.

Monday, November 28, 2005

Kazaa get reprieve in Australia

P2P Net have the transcript of the hearing in an Australian court where Sharman Networks, owners of Kazaa, were given an extension to the deadline to implement filters. It seems the music industry's lawyers failed to attend a court ordered meeting about how the technicalities of the filtering were supposed to work but the judge does try not to let that cloud his judgement, even though he's angry about it.

The judge said:

"I thought it was discourteous in the extreme for your clients to notify that they wouldn't attend by an email sent at 8 minutes to 6 on the Friday night for an appointment that had been arranged for a long time which was due to start at 9 am on Monday. It is just not acceptable for solicitors to behave in that way to a Registrar of the court...

I just want to express as forcibly as I can, when I make directions for attendance before the Registrar I expect practitioners to treat the Registrar with the normal courtesies we would expect from each other."

The technical Registrar in a report to the court said

"Whilst the applicants had displayed co-operation in attending the first conclave and their technical representatives demonstrated good faith in contributing to the development of the protocol, it was unfortunate that this co-operation did not extend to their attendance at the resumed conclave."

So they engaged in the process to begin with but then pulled out because they reckoned the Kazaa folks were not taking it seriously, even though the court appointed officer felt that they were.

Kim Weatherall called the judge's decision on Kazaa "brave" when it was published primarily because of the huge amount of work she predicted would come the court's way in supervising this kind of process. This kind of spat was predictable though I'm not sure "brave" was the right descriptor. The transcript is quite entertaining in places with the judge suggesting to the music industry lawyer that they hadn't been too clever in their tactics - if they'd gone to the meeting and put it clearly on the record that Kazaa were not taking the filtering seriously and got the REgistrar to accept that, then Kazaa could have been in serious difficulties coming back before the court asking for a stay on the injunction. Instead they took their bat and walked away, insulting the court appointed registrar into the bargin. Interestingly enough the judge goes on to criticise both sides for their posturing.

It's well worth a read if you follow the politics and legalities of p2p file sharing.

PNR decision a shock?

EU law blog characterises the ECJ Advocate General's decision on the transfer of EU airline passenger data to the US authorites as a shock. I'm not sure it is a shock necessarily, given the amount of behind the scenes politicking that's gone on with this, but it's certainly worth noting that the specific reasons why he concludes as he does, that the European Court of Justice should annul the Council's and the Commission's decisions on the handover, are different to the reasons put forward by the European Parliament, which made the complaint.

"First, he considers that Commission Decision 2004/535/EC on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection was wrongly based on Directive 95/46/EC because the processing of the data put at the disposal of the United States concerned public security and the activities of the state in relation to criminal law and the fight against terrorism. Processing data for such purposes is outside the scope of the protection afforded by Directive 95/46/EC according to its Article 3 § 2. As the Commission could not lawfully adopt Decision 2004/535/EC on the basis of article 25 § 6 of Directive 95/46/EC, the Advocate General recommends that it should be annulled by the Court.

So, the reasons the Advocate General puts forward are very different from those submitted by the European Parliament which brought the action.

Second, the Advocate General considered that Article 95 EC was not the proper basis for adopting Council Decision 2004/496/EC of May 17th, 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection and it too should be annulled by the Court. The reasoning was the same. The processing of the data pursuant to the agreement between the EC and the USA concerned the fight against terrorism and serious crime whereas Article 95 EC concerned the functioning of the internal market of the EC."

Basically the decision says nothing about whether the Commission and Council should be allowed to mandate the passing of personal data to the US authorities, only that they used the wrong procedure. The Parliament were partly prompted to make the complaint in the first place because of anger over what they believed to have been assurances by the relevant EU commissioner, which they then felt he deliberately reneged on in confidential discussions and agreements with the US.

Essentially then, the EU Council of Governments and the EU Commission used the wrong procedure to mandate the handing over of large quantities of personal data to a foreign government. The EU Parliament then cited the wrong procedure in its complaint that a fundamental principle of European Union citizen data protection was being undermined. The mainstream press would probably paint this as another story of bureaucratic incompetence. As a great believer in the ubiquity of the cock of theory of history, I'd find it easy to be sold on that but there is another story here too. The making of reactive, superficial, high level political decisions about fundamental liberties and the pressurising of officials to "find a way" to get it done. The way is generally attaching it to some procedural process and with any luck it will slip through without getting subject to the kind of thorough judicial review the PNR decision attracted.

The Council and the Commission will now lean on officials to find another way...