Judges perplexed

Check out para. 14 of this judgement by Lord Justice Rose and Mr Justice Crane and Mr Justice Openshaw:

"So, yet again, the courts are faced with a sample of the deeply confusing provisions of the Criminal Justice Act 2003, and the satellite Statutory Instruments to which it is giving stuttering birth. The most inviting course for this Court to follow, would be for its members, having shaken their heads in despair to hold up their hands and say: "the Holly Grail of rational interpretation is impossible to find". But it is not for us to desert our judicial duty, however lamentably others have legislated. But, we find little comfort or assistance in the historic canons of construction for determining the will of Parliament which were fashioned in a more leisurely age and at a time when elegance and clarity of thought and language were to be found in legislation as a matter of course rather than exception."

Wonderful. It should be enlarged, framed and stuck on the office wall of every minister whose reaction to the latest headlines is another legislative "solution."

Thanks to ARCH for the link.

TRIPS and the International Public Health Controversies

A special issue of the journal "Industrial and Corporate Change", Information, Appropriability and the Generation of Innovative Knowledge: December 2006; Vol. 15, No. 6 has been made available. I recommended two articles in particular: Hal Varian's Copyright term extension and orphan works, Information and intellectual property: the global challenges by Rishab Ghosh and Luc Soete and TRIPS and the international public health controversies: issues and challenges by Benjamin Coriat, Fabienne Orsi and Cristina d’Almeida.

Italian election vote recount scheduled

From today's Independent: "Eight months on, Italy recounts its votes"
Apparently there has been some emerging evidence that Silvio Berlusconi may have tried to rig the last election, so the Italian Senate's election committee have agreed that a large sample of blank and spoiled ballots should be recounted in the new year. With typical chutzpah Berlusconi has hailed the decision as a victory for himself. Even though Romano Prodi's group stand to gain from the recount, if the evidence that has so far come to light against Mr Berlusconi is confirmed, they're not interested in pursuing the investigation.

Update: Ian Brown via the org list points me to Scott Adams on evoting yesterday. Funny.

EU ID card on the way

Statewatch reports that the EU's Council of Ministers of the interior were proposing to adopt a resolution to introduce an EU biometric ID card, without debate. Their meetings were due to take place earlier this week (Monday and Tuesday) but I have not seen any indication of what was actually decided.

Gowers: It's a Wonderful Life

One of the nicest examples used by Andrew Gowers in his report is to be found on page 70, para 4.95:

"Many works that lie unused could create value. For example, the film It’s a Wonderful Life lost money in its first run and was ignored by its original copyright owners. When the owners failed to renew their copyright in 1970, it was broadcast on the Public Broadcasting Service channel in the USA. It is now a family classic, and worth millions in prime time advertising revenue. The book The Secret Garden, since copyright has expired, has been made into a movie, a musical, a cookbook, a CD-ROM version, and two sequels. For works still in copyright, if users are unable to locate and seek permission from owners, this value cannot be generated. For example, documentary makers often find it impossible to track down the rights owners of old pieces of film, many of which have multiple owners, all of whom are untraceable, and are not able to use older works to create new value."

Gowers Review of Intellectual Property

The final report of the Gowers Review of Intellectual Property was published yesterday. It is a remarkably sound and rational analysis of the IP landscape which I hope the government pay attention to when dealing with hysterical demands from the music industry for copyright term extension. As James Boyle so rightly said recently, the whole idea of retrospective copyright term extension is very stupid:

"But if this is the stupid idea we wish to pursue, then simply increase the income tax proportionately and distribute the benefits to those record companies and musicians whose music is still commercially available after 50 years. Require them to put the money into developing new artists – something the current proposal does not. Let all the other recordings pass into the public domain.

Of course, no government commission would consider such an idea for a moment. Tax the public to give a monopoly windfall to those who already hit the jackpot, because they claim their industry cannot survive without retrospectively changing the terms of its deals? It is laughable."

From the Gowers review press release:

"The Report argues that in the modern world, the UK's economic competitiveness is increasingly driven by knowledge-based industries, innovation and creativity. Intellectual Property (IP) - protecting and promoting innovation - has never been more important.

Whilst the Review concludes that the UK has a fundamentally strong IP system, it sets out important targeted reforms. The reforms aim to:

• strengthen enforcement of IP rights to protect the UK's creative industries from piracy and counterfeiting;
• provide additional support for British businesses using IP in the UK and abroad; and
• strike the right balance to encourage firms and individuals to innovate and invest in new ideas while ensuring that markets remain competitive and that future innovation is not impeded.

Andrew Gowers said:

"In today's global economy, knowledge capital, more than physical capital, will drive the success of the UK economy. Against this backdrop, IP rights, which protect the value of creative ideas, are more vital than ever.

"The ideal IP system creates incentives for innovation, without unduly limiting access for consumers and follow-on innovators. It must strike the right balance in a rapidly changing world so that innovators can see further by standing on the shoulders of giants. And it must take tough action against those who infringe IP rights at a cost to the UK's most creative industries.

"The Review provides sound recommendations on how the IP regime should respond to the challenges that it faces. Getting the balance right is vital to driving innovation, securing investment and stimulating competition."

The Review identified a number of areas where reform is necessary to improve the system for all its users.

With the music industry losing as much as 20 per cent of annual turnover to piracy and counterfeiting, the Review recommends strengthening enforcement of IP rights through:

• new powers and duties for Trading Standards to take action against infringement of copyright law;
• IP crime recognised as an area for police action in the National Community Safety Plan;
• tougher penalties for online copyright infringement - with a maximum 10 years imprisonment;
• lowering the costs of litigation - by using mediation and consulting on the fast-track limit. The Review acknowledges that prohibitive legal costs affect the ability of many to defend and challenge IP; and
• consulting on the use of civil damages and ensuring an effective and dissuasive system of damages exists for civil IP infringement.

To provide support for businesses using the IP system the review recommends that:

• UK Patent Office be restructured as the UK Intellectual Property Office, with recommendations for it to provide greater support and advice for businesses using IP domestically;
• Business representatives sit on a new independent Strategic Advisory Board on IP Policy, advising the Government; and
• Government improve support and advice internationally - including in India and China - to enable UK businesses to protect their investment around the world.

To ensure the correct balance in IP rights the review recommends:

• ensuring the IP system only proscribes genuinely illegitimate activity. The Review recommends introducing a strictly limited 'private copying' exception to enable consumers to format-shift content they purchase for personal use. For example to legally transfer music from CD to their MP3 player;
• enabling access to content for libraries and education establishments - to ensure that the UK's cultural heritage can be adequately stored for preservation and accessed for learning. The Review recommends clarifying exceptions to copyright to make them fit for the digital age; and
• recommending that the European Commission does not change the status quo and retains the 50 year term of copyright protection for sound recordings and related performers' rights."

The music industry's response has been predictable - a PR campaign trying to marginalise the report, including an advert in today's FT apparently signed by 4500 artists saying they desparately need a copyright term extension on sound recordings. Sadly such tricks, as I explain in more detail in my book, often have the power to influence policymakers in ways that rational argument based on sound evidence does not. Let's hope that Gordon Brown favours rationality over rhetoric in this instance.

Update: Some of the signatures on the music industry FT advertisement are those of dead artists. So it seems that dead people are keen on copyright extension, which means the rational argument suggesting dead people cannot be encouraged to produce new creative works is now also dead?

Books - Forbes

Forbes Magazine had a special report on books recently and I particularly recommend the articles by Cory Doctorow and David Serchuk on making books available for free download and senseless book burning respectively.

EX NSA Chief lambasts war on terror

Retired general and former head of the NSA when Ronald Reagan was president has been criticising the current administration's war and terror and what he sees as their infringement of civil liberties, on the "Metro Spirit National Security Blog"

"Metro Spirit: What are your feelings on the NSA’s program of warrantless wiretapping of American citizens?

William Odom: It didn’t happen under my watch. And I’m still puzzled why somebody hasn’t tried to impeach the president for doing it. Any conservative in the United States who values his life [ought to be outraged]. In fact, the South seceded in defense of minority rights — why the hell have they forgotten them now? Ben Franklin said, “somebody who values security over liberty deserves neither.”

MS: What do you say to people, and there are plenty here in Augusta, who say that cutting and running from Iraq is traitorous act?

WO: Well, just tell ‘em they’re full of shit. They're traitors. You know what lemmings are? Yeah, they’re lemmings. We went to war for our enemies’ best interests. You ask those people why it makes sense that we went to war to advance the interests of Iran and Al Qaeda."

Letter asking WHO review of the Essential Drugs List (EDL)

Jamie Love has written to the World Health Organisation asking them to review the asking the Essential Drugs List (EDL). OF the 312 medicines on the list, only 14 are protected by patents which would suggest that patents are not blocking access to essential medicines in developing countries. The trouble is that cost is one of the key factors in determining whether a particular drug is "essential." So large numbers of patented drugs don't make the list because they are too expensive. There is a good reason for including cost as a factor because the list is designed to avoid high priced (less cost effective) patented medicines. But an unintended side affect of this is that even drugs which developing countries would have a right to make cheaper generic versions of under compulsory licence, are not making the list because the cost of the patented rather than the generic version is what it taken into consideration in deciding whether it should be on the list. Love says:

"Drug industry representatives have used the WHO EDL to argue that rigid intellectual property protections are not a barrier to essential medicines, because “no” patented medicines are “essential” according to the WHO.[2] Of course this is a distortion; many patented medicines currently not on the EDL would be included were they available at generic prices – for instance the most recent list includes no patented anti-cancer drugs, and the core list includes no anti-cancer drugs whatsoever. The existence of a WHO “Essential Medicines List” which clearly does not contain many truly essential medicines may be confusing for public health officials and others and provide rhetorical fodder to those who oppose intellectual property flexibilities for health...

Patented medicines currently available only at prohibitive prices may nonetheless offer the “potential for cost-effective treatment” as countries have the opportunity to legally produce or import generic versions. More critical to the evaluation of cost effectiveness under the emerging system is the true marginal cost of production, which bears little or no relationship to the market price in developed countries.

We believe that it is more appropriate that the Essential Medicines List reflect the opportunity that many countries have to obtain currently patented drugs at generic prices by assessing cost-effectiveness not only on the basis of current market prices, but also on the basis of potential generic prices if countries were to avail themselves of their right to exercise TRIPS flexibilities, including the granting of compulsory licenses. Developing countries in particular might stand to benefit from a model WHO Essential Medicines List that does not exclude essential patented medicines by ignoring the potential that those drugs could be obtained more cheaply. A welcome side-effect of this change would be an “Essential Medicines List" that more fully reflects the range of truly essential medicines, where essential reflects both the need for treatments and the costs of meeting those needs unburdened by patent rents.

We recognize that the current WHO Essential Medicines List (EDL) is designed to avoid high priced (less cost effective) patented medicines, that some national laws that reference the EDL create obligations for public outlays, and that these outlays may not be justified at the higher prices for patented medicines. The WHO could easily address this problem by creating a category within the EDL for medicines that are essential "if available at generic prices," an option that is clearly relevant for many developing countries."

Essential reading.

Poll: Millions may resist ID cards

This morning's Telegraph has a big story on a YouGov poll which suggests that millions may resist the government's ID cards scheme.

I'm not sure it will run into the millions but suspect it could be tens or possibly hundreds of thousands. Once the reality of the government's specific ID card system disaster starts to dawn on people the protests may then grow.

I had an interesting chat with someone at the weekend about the children's index. She's a parent of primary school children who had no inkling that the government were developing the children's index database nor that there were so many other children's databases in operation. She had recently received a letter from her children's school, however, noting that what she considered to be significant items of personal information were now going to be collected about her children. She was angry that her family's privacy was being invaded with no justifiable reason and that her permission was not sought for the collection of this data.

She asked me about the databases because I had mentioned recently that I had written a book about civil rights and computers. At the time she had noted politely that that sounded interesting but it was clear that the subject was really too remote and abstract for her to take a real interest. The school's letter, however, suddenly turned it into something of immediate concern. We might find that once the ID card system begins to operate it will provide a similar jolt to many others' sensitivities to how the goverment are building massive new insecure information systems in their name.