EBLIDA on EU JURI Committee consideration of copyright

EBLIDA, the European Bureau of Library, Information and Documentation
Associations, has written an open letter to MEPs on the EU parliament legislative affairs (JURI) committee review of Manuel Medina Ortega's report on copyright last week. They are asking for the Ortega report to be rejected.

"Our reasons are that the Report contains assertions that are contrary to independent expert evidence, and that it take no account of the importance of lawful access by the public, through the exceptions to copyright, to the world of published information.

Libraries have traditionally striven for an equitable balance between the interests of the rightsholder and those of the user. The Ortega paper however is unbalanced, paying little attention to the important role of exceptions to copyright. Not only does it talk of libraries, with whom to our knowledge Mr Medina Ortega has sought no consultation, but also it misrepresents the fundamentals of the debates on Orphan Works, and contradicts the numerous submissions from the European library community to the Commission's recent Green Paper on "Copyright in the Knowledge Economy." [1]

EBLIDA respects authors' rights as the basic pillar of the copyright régime. However, the exceptions to copyright are equally part of the fabric of the régime. It is important that we have a strong copyright system that represents both the interests of the rights holders as well as the users - something Mr Ortega's report regrettably does not attempt to do. We need a viable exceptions regime, because exceptions guarantee broadly speaking human rights, access to knowledge, education and culture, and form the basis of a strong social contract of respect that will benefit all within our Information Society.

At first sight the Information Society Directive is reasonably accommodating to the exceptions to copyright. In quantity, the exceptions it potentially provides are more generous than those implemented by most Member States. However, some major defects fundamentally weaken its carefully enumerated list:

. The list of exceptions is exhaustive. It keeps the exceptions firmly in the twentieth century by limiting those available to provisions that have been found useful in the past. In a matter as important to Europe as the knowledge economy, the Directive shows a failure of nerve, in this respect, that can only be damaging for the future. No new exceptions may be added by Member States in national legislation. It is strange that an exclusive list can be thought to be adequate in the light of the evolving Internet technologies.

. It is also unfortunate that (apart from the first) the list of exceptions is optional. Member States have chosen different exceptions, with the result that harmonisation has not been achieved.

The assertion in Mr Medina Ortega's report that the Directive is 'satisfactory' takes no account of the independent and exhaustive study conducted by the Institute for Information Law at the University of Amsterdam in 2007 which concluded (p.169), 'In sum, it is fair to conclude that the Directive has at best only partly achieved its main goal of promoting growth and innovation in online content services. As our benchmark test has revealed, the Directive deserves particularly low marks for its lack of harmonising effect and its lack of legal certainty'. [2]

With regard to Orphan Works, the Ortega Report displays a regrettable lack of understanding around the issues, and disregards the positive work embarked upon by libraries and rightsholders with the InfoSoc DG. By definition an Orphan Work does not have a traceable owner and therefore, in contradiction to the Ortega statements, it cannot be digitised with the permission of the rightsholder. The inadequacy of the Information Society Directive is illustrated by the fact that the Commission's i2010 Digital Library Initiative includes no significant numbers of orphan works. This limit on its usefulness will remain because there are no proper exceptions to cope with the Orphan Works problem - unless new statutory solutions are introduced.

The goal of the Commission Recommendation 2006/585/EC of 24 August 2006 is to make the European cultural heritage online available to the public. The realisation of this goal requires mass digitisation. However, in the "Final Report on Digital Preservation, Orphan Works, and Out-of-Print Works" and the "Memorandum of Understanding on orphan works" the question of mass digitisation is not addressed. Even within its limited scope, the Memorandum, which covers only the digitisation of individual works, does not provide libraries with any legal certainty. Legal certainty would require

. either that Member States have recourse to Recital 18 of the Information Society Directive and adopt extended collective licensing, like the Nordic countries,

. or that they introduce an exception, or other statutory solution, in order to allow the copying and making available of works (notably unpublished works) for which no appropriate licensing body exits.

Any innovation in national legislation to permit the use of orphan works would require either amendment of Directive 2001/29/EC or the creation of a new Community legal instrument to allow this.

This message is on behalf of the libraries of Europe, and also on behalf of Europe's citizens, who use their libraries to obtain much of the important information they need.

Yours sincerely

Andrew Cranfield
Director of EBLIDA"

Thanks to Barbara Stratton of the Chartered Institute of Library and Information Professionals (CILIP) for the pointer via the A2K list. CILIP, LACA (the Libraries and Archives Copyright Alliance), SURF (http://www.surf.nl/en/Pages/home.aspx); and SCONUL: the Society of College, National and University Libraries, UK (http://www.sconul.ac.uk) all co-signed the letter.

When families become enemies of state

From Eileen Munro in the Guardian:

"Increased surveillance of families is presented to the public on the back of a child abuse tragedy. Sharing information is clearly valuable in identifying victims of abuse since parents themselves may well tell lies. Sharing more information is offered as a way of increasing children's safety. This, though superficially plausible, over-simplifies the processes of judgment and decision-making. Sharing more relevant information will improve identification, sharing more irrelevant information will harm it, increasing the noise-to-signal ratio so it is harder for a professional to spot the relatively few cases where children are in danger from their parents. The type of information-sharing recommended by the government will vastly increase the amount of data irrelevant to child protection circulating around the system.

Respecting families' privacy does not mean abandoning the early intervention policy; it means abandoning the assumption that practitioners know best and parents can't be trusted to care about their children's welfare. We should assume that parents are innocent until we have at least some grounds for suspicion."

You don't make it easier to find a needle in a haystack by throwing more hay on the stack. Thanks to Terri Dowty for the link.

3 Strikes arrives in Ireland via the Eircom settlement

The Irish Times is reporting that following several days in court, Eircom and the four big music labels have now reached a settlement whereby Eircom will implement a 3 strikes policy.

"As part of the settlement, the record companies will supply Eircom with the IP addresses of all persons who they detect illegally uploading or downloading copyright works while Eircom has agreed measures which include the ultimate disconnection of infringing subscribers who ignore warnings to cease such infringement...

Eircom has agreed to implement from now on a graduated process under which it will: (1) inform its broadband
subscriber that the subscribers IP address has been detected infringing copyright; (2) warn the subscriber they will be disconnected unless infringement ceases and (3) disconnect the subscriber in default of compliance with the warning.

The record companies have also agreed they will take all necessary steps to put similar agreements in place with all other internet service providers in Ireland."

So it looks like my home country is about to provide a case study on how bad 3 strikes might be in practice and how it might trip over the ECJ decision in the Promusicae case, various EU directives and the European Convention on Human Rights, not to mention the practical problems involved and the relative costs to the various parties. Actually this activity has the potential to be challenged eventually both through the European Court of Justice and the European Court of Human Rights. It's a little surprising Eircom agreed to this kind of settlement given what it will cost the company. I can only surmise they had a strong expectation that they would lose the case.

The Irish Times article doesn't mention it but a Danish firm, DtecNet, will be gathering the hordes of suspicious IP addresses from P2P networks for the music companies and piping those lists of IP addresses to Eircom for warnings and disconnections. Thanks to Richard Clayton via the FIPR alerts for the pointer to the Irish Times article.

Update: Daithí Mac Síthigh, as usual, is spot on with his analysis of the settlement.

NZ government reject calls to drop 3 strikes type law

From Stuff.co.nz:

"Calls to repeal a law that could mean Kiwi internet users have their connections cut if they are accused of breaching copyright have been knocked back by the Government.

The new "guilt by accusation" law would result in internet service providers (ISPs) being forced to take on the role of gatekeeper by blocking online access to anyone accused of flouting copyright laws and illegally downloading films and music."

The law is due to be enacted at the end of February.

Carrie v Tolkien

The Carrie v Tolkien blog defamation case ruling is now online at BALII. A Christopher Carrie has apparently written a book claiming a Catholic priest who was a member of the Tolkien family (JRR's son, John, now deceased) abused him. He set up a blog under a pseudonym promoting the book. Royd Tolkien (JRR's great grandson) posted comments on the blog identifying Mr Carrie as the author of the book he was praising and saying he (Carrie) was a fraudster with a criminal record (see para 10 of the judgment for the precise details). Carrie sued for defamation but left the comments on the blog. And as Justice Eady says in the decision (also para 10)

"It is interesting to note that at the foot of this posting there appears the comment "the blog owner changed this comment on 2007-03-09 12:05". This appears to be recording the fact that the Claimant deleted the address which had appeared in the original posting, and tends to confirm his capacity to control the website."

And so the ruling goes on, not surprisingly ending with a verdict in favour of Mr Tolkien.

"

16. ...there is no realistic prospect of any jury, being properly directed, coming to a conclusion other than that the Claimant consented to and acquiesced in all such subsequent publications. That is in my judgment plainly correct. That leaves the Defendant to address the relatively brief period on 24 February 2007 before the Claimant discovered the posting. There is some doubt, on the Claimant's own evidence, as to when this was. There would appear to be a maximum period of 4 hours and 19 minutes. It is the Defendant's submission that there is no realistic prospect of establishing that any publication at all took place during that window of opportunity.
17. It would appear to be established that there is no presumption in law to the effect that placing material on the Internet leads automatically to a substantial publication: see e.g. Al Amoudi v Brisard [2001] 1 WLR 113. It is necessary to plead and establish any publication relied upon. There must be some evidence on which an inference can be drawn in relation to that very short period of time.
18. It will not suffice merely to plead that the posting has been accessed "by a large but unquantifiable number of readers". There must be some solid basis for the inference. That form of pleading is no more than bare assertion.
19. It may very well be that the Claimant could gain access to the records of visitors to his website. Be that as it may, he has not done so. Without evidence of substantial publication it is submitted that there is no basis for concluding that there was, over the short period in question, the commission of a real and substantial tort such as to justify the deployment of the court's resources...
28. In the light of my conclusions on these first two matters, the question of exercising a discretion does not arise. Had it done so, I would have declined in any event to exercise my discretion in the Claimant's favour because the claim has no realistic prospect of success for the reasons I have already given.

I can't see how this one could possibly have come out any other way. It is a bit unfortunate that it ever got as far as the courtroom really but the decision is relatively short and well worth a read for the legal geeks out there and is delivered in Mr Justice Eady's, as ever, accessible style.

Update: Outlaw has an accessible report on the case for those less inclined towards reading legalise. Thanks to Glyn via ORG for the pointer.

Google and the future of books

Robert Darnton, Director of Harvard University Library, has a really interesting article, in the New York Review of Books, giving his perspectives on the the proposed settlement agreement in the Google Book case.

"How can we navigate through the information landscape that is only beginning to come into view? The question is more urgent than ever following the recent settlement between Google and the authors and publishers who were suing it for alleged breach of copyright. For the last four years, Google has been digitizing millions of books, including many covered by copyright, from the collections of major research libraries, and making the texts searchable online. The authors and publishers objected that digitizing constituted a violation of their copyrights. After lengthy negotiations, the plaintiffs and Google agreed on a settlement, which will have a profound effect on the way books reach readers for the foreseeable future. What will that future be?

No one knows, because the settlement is so complex that it is difficult to perceive the legal and economic contours in the new lay of the land...

When I look backward, I fix my gaze on the eighteenth century, the Enlightenment, its faith in the power of knowledge, and the world of ideas in which it operated—what the enlightened referred to as the Republic of Letters.

The eighteenth century imagined the Republic of Letters as a realm with no police, no boundaries, and no inequalities other than those determined by talent. Anyone could join it by exercising the two main attributes of citizenship, writing and reading. Writers formulated ideas, and readers judged them. Thanks to the power of the printed word, the judgments spread in widening circles, and the strongest arguments won...

Seen from the perspective of the players, the realities of literary life contradicted the lofty ideals of the Enlightenment. Despite its principles, the Republic of Letters, as it actually operated, was a closed world, inaccessible to the underprivileged. Yet I want to invoke the Enlightenment in an argument for openness in general and for open access in particular...

To descend from the high principles of the Founding Fathers to the practices of the cultural industries today is to leave the realm of Enlightenment for the hurly-burly of corporate capitalism. If we turned the sociology of knowledge onto the present—as Bourdieu himself did—we would see that we live in a world designed by Mickey Mouse, red in tooth and claw.

Does this kind of reality check make the principles of Enlightenment look like a historical fantasy? Let's reconsider the history. As the Enlightenment faded in the early nineteenth century, professionalization set in...

Along the way, professional journals sprouted throughout the fields, subfields, and sub-subfields. The learned societies produced them, and the libraries bought them. This system worked well for about a hundred years. Then commercial publishers discovered that they could make a fortune by selling subscriptions to the journals. Once a university library subscribed, the students and professors came to expect an uninterrupted flow of issues. The price could be ratcheted up without causing cancellations, because the libraries paid for the subscriptions and the professors did not. Best of all, the professors provided free or nearly free labor. They wrote the articles, refereed submissions, and served on editorial boards, partly to spread knowledge in the Enlightenment fashion, but mainly to advance their own careers.

The result stands out on the acquisitions budget of every research library: the Journal of Comparative Neurology now costs $25,910 for a year's subscription; Tetrahedron costs $17,969 (or $39,739, if bundled with related publications as a Tetrahedron package); the average price of a chemistry journal is $3,490; and the ripple effects have damaged intellectual life throughout the world of learning. Owing to the skyrocketing cost of serials, libraries that used to spend 50 percent of their acquisitions budget on monographs now spend 25 percent or less. University presses, which depend on sales to libraries, cannot cover their costs by publishing monographs. And young scholars who depend on publishing to advance their careers are now in danger of perishing.

Fortunately, this picture of the hard facts of life in the world of learning is already going out of date. Biologists, chemists, and physicists no longer live in separate worlds; nor do historians, anthropologists, and literary scholars...

The eighteenth-century Republic of Letters had been transformed into a professional Republic of Learning, and it is now open to amateurs—amateurs in the best sense of the word, lovers of learning among the general citizenry. Openness is operating everywhere, thanks to "open access" repositories of digitized articles available free of charge, the Open Content Alliance, the Open Knowledge Commons, OpenCourseWare, the Internet Archive, and openly amateur enterprises like Wikipedia. The democratization of knowledge now seems to be at our fingertips. We can make the Enlightenment ideal come to life in reality...

Libraries exist to promote a public good: "the encouragement of learning," learning "Free To All." Businesses exist in order to make money for their shareholders—and a good thing, too, for the public good depends on a profitable economy. Yet if we permit the commercialization of the content of our libraries, there is no getting around a fundamental contradiction. To digitize collections and sell the product in ways that fail to guarantee wide access would be to repeat the mistake that was made when publishers exploited the market for scholarly journals, but on a much greater scale, for it would turn the Internet into an instrument for privatizing knowledge that belongs in the public sphere. No invisible hand would intervene to correct the imbalance between the private and the public welfare. Only the public can do that, but who speaks for the public? Not the legislators of the Mickey Mouse Protection Act.

You cannot legislate Enlightenment, but you can set rules of the game to protect the public interest. Libraries represent the public good. They are not businesses, but they must cover their costs. They need a business plan..."Digitize we must." But not on any terms. We must do it in the interest of the public, and that means holding the digitizers responsible to the citizenry.

It would be naive to identify the Internet with the Enlightenment. It has the potential to diffuse knowledge beyond anything imagined by Jefferson; but while it was being constructed, link by hyperlink, commercial interests did not sit idly on the sidelines. They want to control the game, to take it over, to own it. They compete among themselves, of course, but so ferociously that they kill each other off. Their struggle for survival is leading toward an oligopoly; and whoever may win, the victory could mean a defeat for the public good...

As an unintended consequence, Google will enjoy what can only be called a monopoly—a monopoly of a new kind, not of railroads or steel but of access to information. Google has no serious competitors. Microsoft dropped its major program to digitize books several months ago, and other enterprises like the Open Knowledge Commons (formerly the Open Content Alliance) and the Internet Archive are minute and ineffective in comparison with Google. Google alone has the wealth to digitize on a massive scale. And having settled with the authors and publishers, it can exploit its financial power from within a protective legal barrier; for the class action suit covers the entire class of authors and publishers. No new entrepreneurs will be able to digitize books within that fenced-off territory, even if they could afford it, because they would have to fight the copyright battles all over again. If the settlement is upheld by the court, only Google will be protected from copyright liability."

Should Bush administration officials go to jail?

Mark Anderson has been waxing angrily lyrical about the need for the misdeeds of the Bush administration to be punished through criminal prosecutions. He agrees with Paul Krugman in the NYT that Obama has no power or mandate to wipe that particular slate clean.

"Therefore, regardless of the Obama political calculations, we should be resolved, as we have in past similar situations (Iran Contra, Watergate) to put these crimininals to trial. There are so many crimes, it seems almost impossible to list them; I certainly won’t try to here, but will leave it to experts in each department and field to do so...

Here is a simple question: who is responsible for nearly a million civilian deaths in a faked war? There was never, ever a need for an Iraq war; and that statement will stand the test of history. Given its truth, we should not be talking about the few thousand GI deaths as the cost of the war, but should recognize that the United States, without cause or any particular aggression on Iraq’s part, and without any proven concern for its own safety, did cause the deaths of between 600,000 and 1,000,000 civilians in that country.

Let’s see now, is Dick Cheney ready to stand up and pay for this? Exactly how, Mr. Cheney, are you planning on doing that?

One million civilian dead.

And then we have the increasingly-correct pattern I have discovered about the entire Bush administration: it was about nothing smaller or larger than regular old Texan self-dealing. If you are familiar with Texas political history, self-dealing is kind of like getting up in the morning. But, for the rest of us in the Union, self-dealing is unethical and often illegal.

The story of the Bush administration will fall into prosecutorial parts, all of them very large, and all of them worth the effort of pursuit and conviction:

1. Killling of Innocent Civilians. With no cause, and based upon lies and deception, the Bush administration invented a war which led directly to the deaths of about 1 million civilians...

2. Self-dealing. Richard Clarke noted your map showing an Iraq already divided between oil companies nine months before you declared war...

3. Perverting the Justice Department, and Justice, itself. Others have written eloquently about this; it was, generally, mirrored in the EPA, and in other government agencies...

We need to be clear: when you intentionally, flagrantly, break the law, we will come after you. Even if you are or were an elected official.

That is the most well-loved aspect of America, and it is the part of America we most want to keep.

So, Mssr. Obama, please don’t discuss this publicly at any greater length. If I wanted you to be the person who decided whether the law mattered or not, I would have voted for you as the Decider, instead of as the President."

Uk government: bungling snoopers

The Telegraph's editorial writers (not the biggest fans, it has to be said, of Nu Labour's construction of our database nation) have labeled the UK government "bungling snoopers", following the publication of the House of Commons Public Accounts Committee - Second Report on The National Programme for IT in the NHS: Progress since 2006.

"A report from the Commons public accounts committee has again exposed the Government's folly in committing huge sums of taxpayers' money to centralised databases that are neither effective, nor secure, nor even necessary. A £12 billion NHS computer project to link more than 30,000 GPs to nearly 300 hospitals in England is reportedly on the brink of failure after "disappointing progress" in deploying a new care records system. The NHS is forecasting a completion date of 2015 – four years later than originally planned, though the MPs said even this revised schedule looks overly optimistic...

Ministers have also decided to proceed with another IT folly, the ContactPoint system that will hold details of all our children. Well, not quite all. The offspring of "celebrities", including MPs, will be excluded on confidentiality grounds. Why is this necessary if the system is secure, and why are the children of MPs entitled to more privacy than the rest of us? Here is a classic Labour cocktail: the snooping state reaches new, and unacceptable, levels of intrusion but ensures special privileges for the political classes and their celebrity friends. These databases and the new data-sharing laws now before Parliament must be scrapped."

The conclusions and recommendations from the report itself read quite clearly.

"1 Recent progress in deploying the new care records systems has been very disappointing, with just six deployments in total during the first five months of 2008-09...

2 By the end of 2008 the Lorenzo care records software had still not gone live throughout a single Acute Trust...

3 The planned approach to deploy elements of the clinical functionality of Lorenzo (release 1) ahead of the patient administration system (release 2) is untested, and therefore poses a higher risk than previous deployments under the Programme...

4 Of the four original Local Service Providers, two have left the Programme, and just two remain, both carrying large commitments...

5 The termination of Fujitsu's contract has caused uncertainty among Trusts in the South and new deployments have stopped...

6 The Programme is not providing value for money at present because there have been few successful deployments of the Millennium system and none of Lorenzo in any Acute Trust...

7 Despite our previous recommendation, the estimate of £3.6 billion for the Programme's local costs remains unreliable...

8 The Department hopes that the Programme will deliver benefits in the form of both financial savings and improvements in patient care and safety...There is, however, a lot of work to do within the NHS to realise and measure the benefits. Convincing NHS staff of the benefits will be key to securing their support for the Programme, and the credibility of the figures in the benefits statement would be considerably enhanced if they were audited...

9 Little clinical functionality has been deployed to date, with the result that the expectations of clinical staff have not been met...

10 The Department has taken action to engage clinicians and other NHS staff but there remains some way to go in securing their support for the Programme...

11 Patients and doctors have understandable concerns about data security...

12 The Department does not have a full picture of data security across the NHS as Trusts and Strategic Health Authorities are required to report only the most serious incidents to the Department...

13 Confidentiality agreements that the Department made with CSC in respect of two reviews of the delivery arrangements for Lorenzo are unacceptable because they obstruct parliamentary scrutiny of the Department's expenditure. "

So,

• the systems don't work very well if at all
• staff don't like them and don't trust them
• government claims about the functionality and value of the systems are unrealistic
• no one knows how much it is all costing
• the contracts interfere with appropriate auditing of the systems
• data security threats are significant and the government department responsible thinks it "is not practical for it to collect details of all security breaches"

An unbridled success story then.

Boris opposes McKinnon extradition

Boris Johnson has a request for the new US president. He reckons President Obama should put an end to the Justice Department's attempts to extradite Gary McKinnon.

"It is brutal, mad and wrong even to consider sending this man to America for trial. He has been diagnosed as having Asperger's syndrome, for heaven's sake. How can the British government be so protoplasmic, so pathetic, so heedless of the well-being of its own people, as to sign the warrant for his extradition? What kind of priorities do we have these days? We treat a harmless UFO-believer as an international terrorist, and are willing to send him to prison in America, and as for real terrorists – people who bombed and maimed innocent civilians in this country – we seem willing to give their families £12,000 each, on the grounds that they are all "victims" of the troubles in Northern Ireland.

The British government is obviously too feeble to help Mr McKinnon, and even though the courts last week granted him another review, it is plain that the matter will simply drag preposterously and expensively on.

It is time for Barack Obama to show the new leadership the world has been crying out for. It is time for the Commander-in-Chief to tell the US military to stop being so utterly wet, dry their eyes, and invest in some passwords that are slightly more difficult to crack.

In the words of the spiritual with which he began his inauguration ceremony, it is time for the new President to let our people go. To persist with this extradition is so cruel and so irrational that the only plausible explanation is that beneath their suits the US Justice Department and the UK Home Office are occupied by a conspiracy of great green gibbering geckos from outer space."

More Apple lawsuits coming to a courtroom near you?

Apple has been awarded a 20 part patent, (US patent number 7,479,949) on the iPhone's touchscreen functionality, or to give it its proper title:

"Touch screen device, method, and graphical user interface for determining commands by applying heuristics

Abstract

A computer-implemented method for use in conjunction with a computing device with a touch screen display comprises: detecting one or more finger contacts with the touch screen display, applying one or more heuristics to the one or more finger contacts to determine a command for the device, and processing the command. The one or more heuristics comprise: a heuristic for determining that the one or more finger contacts correspond to a one-dimensional vertical screen scrolling command, a heuristic for determining that the one or more finger contacts correspond to a two-dimensional screen translation command, and a heuristic for determining that the one or more finger contacts correspond to a command to transition from displaying a respective item in a set of items to displaying a next item in the set of items."

The "inventors" are

"Jobs; Steven P. (Palo Alto, CA), Forstall; Scott (Mountain View, CA), Christie; Greg (San Jose, CA), Lemay; Stephen O. (San Francisco, CA), Herz; Scott (San Jose, CA), van Os; Marcel (San Francisco, CA), Ording; Bas (San Francisco, CA), Novick; Gregory (Santa Clara, CA), Westerman; Wayne C. (San Francisco, CA), Chaudhri; Imran (San Francisco, CA), Coffman; Patrick Lee (Menlo Park, CA), Kocienda; Kenneth (Sunnyvale, CA), Ganatra; Nitin K. (San Jose, CA), Anzures; Freddy Allen (San Francisco, CA), Wyld; Jeremy A. (San Jose, CA), Bush; Jeffrey (San Jose, CA), Matas; Michael (San Francisco, CA), Marcos; Paul D. (Los Altos, CA), Pisula; Charles J. (San Jose, CA), King; Virgil Scott (Mountain View, CA), Blumenberg; Chris (San Francisco, CA), Tolmasky; Francisco Ryan (Cupertino, CA), Williamson; Richard (Los Gatos, CA), Boule; Andre M. J. (Sunnyvale, CA), Lamiraux; Henri C. (San Carlos, CA)"

and the assignee company is Apple Inc. (Cupertino, CA). It covers such novel things as pinching and swiping your fingers on a touchscreen. You have to read it (ok I accept in depth reading might be the domain of legal geeks but it's worth scanning). On the 3-step patent test,

• Is it inventive? Yes.
  
• Useful? Definitely
• Not obvious to the average someone schooled in the art? That one I'm not so sure about.

It probably means we'll be seeing a few more iPhone based lawsuits on the horizon.

WTO rules for US in IP dispute with China

From the WTO: "The WTO, on 26 January 2009, issued the report of a panel that had examined United States’ complaint against “China — Measures affecting the protection and enforcement of intellectual property rights” (DS362)."

The full report is available in a variety of formats at the WTO site but IP Watch has a succinct summary of the findings."

" China has been found in violation of two of its responsibilities under international rules on trade and intellectual property, and in partial violation of one more, said a World Trade Organization panel report on the US-China dispute over copyright and customs matters released Monday. But the panel did not make a decision on some of the US claims.

The panel has recommended that China alter its copyright law and customs measures to be consistent with its obligations under the WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.

The final report finds China’s copyright law inconsistent with Article 9 of the TRIPS agreement, which incorporates the Berne Convention for the Protection of Literary and Artistic Work. The panel stated that China is inconsistent with Berne Convention Rule 5(1), which requires that foreign owners of creative works receive the same protection as domestic owners of similar material.

The panel decision also found China to be in violation of TRIPS Article 41.1, which requires members to have available laws “so as to permit effective action against any act of infringement of intellectual property rights covered by this agreement,” including remedies which “constitute a deterrent to further infringements.”"

Update: Forbes mentions the ruling was not the slam dunk victory for the US that's been widely reported. And Michael Geist says it was a major victory for China.

PI Black Zone Report on Data Sharing - Sharing the Misery

Privacy International have just published an important report, SHARING THE MISERY
The UK’s strategy to circumvent data privacy protections, on the UK government's plans to engage in mass data sharing.

"Of the hundreds of issues engaged each year by Privacy International, a small handful stand out because of the fundamental risk they pose to the foundations of privacy protection.

In January 2007, Privacy International decided to initiate the “Black Zone” report series. These reports will deal with issues that we regard as constituting an exceptional danger to privacy.

The UK government’s proposal to legislate, in its 'Coroners and Justice Bill', for wide scale sharing of personal data is one such instance, and internationally is the first occasion in recent months that we have seen an example of risk at such a fundamental level. The scale of the danger to privacy should be seen in the light of other current UK proposals, such as mass communications data surveillance and nationwide vehicle surveillance. These latter projects constitute a major threat, but do not encompass the breadth or potential corrosive effect on existing protections.

The mass exchange of personal information has the potential to deliver some benefit, however it also presents vast risks associated with governance, privacy, security and human autonomy. In the rush to institute data sharing, these aspects have largely been ignored.

Privacy International took the decision to prepare this report on the basis both of the dangers inherent in the legislative proposals and the unprecedented way in which they have been created.

The aim of this report is to bring to the attention of the public, parliament and media the urgent need to consider the extraordinary dangers created by the proposal. Previously people’s consent was required, but now the consent of the governed is not longer being sought. In fact, the Government’s proposal eradicates consent from the governing framework, thus placing not only our data at risk but also fundamental tenets of our democracy.

Conclusions

This policy has been the overarching vision of the UK Government since the late 1990s. We are surprised it has taken so long to devise a policy of this breadth and with such disregard for even the most basic safeguards. Despite continuous debates about genetic databases, health databases, and biometric databases, everything has been done to ignore debate on this policy. This can serve only to destabilise any decision made by Parliament on these other matters.

The problems with this law is as follows:

1. Based on an illegitimate consultation process over a ten-year period, created to justify whatever the Government drafted into law. Even the Information Commissioner’s Office has been compromised.
2. Avoids Parliamentary scrutiny by pushing orders through secondary legislation.
3. Consists of meaningless protections and oversight, where the ICO may provide comments to Parliament in a process where Parliament is not permitted to amend the order.

The report is available in full in PDF here."

JURI committee agenda

The EU Parliament's legal affairs committee met last week to consider copyright term extension in the midst of a packed and eclectic two day agenda. Is it really possible to give serious scrutiny to complex policy considerations, including:

• copyright term extension
• EU legal process (e.g. possible horizontal instrument on collective redress)
• parliamentary immunity in Poland
• Cooperation on evidence taking between courts in EU member states in relation to civil or commercial matters
• cross border transfers of company seats
• a review of the copyright and related rights directive of 2001, based on the report done last year by Manuel Medina Ortega
  
• a directive on auditing accounts
• public access to EU documents
• a white paper on damages in anti-trust cases
• penalties for pollution by ships
• EU citizenship
• Consultation of employees
• Cross border payments
• characteristics of tractors (I kid you not)
• motorbike registration plates (again I kid you not)
• corporate mergers
• debtors assets
• monitoring the application of EU law
• application of freedom of movement directive
• patients rights
• equal opportunities
• electronic money institutions

- in the space of two days? Of course it isn't.

I've been involved in more committees with long agendas than I care to remember both whilst working in the commercial and the education sectors. In practice the business of the committee becomes a series of wars of attrition. Parties with vested interests in parts of the agenda drive their particular interests. Sometimes a member of the committee with an interest in that area of business asks an awkward question or two. Then the proposal goes through on the nod or gets thrown out. The person with the driving interest may lose but just needs the stamina to get the proposal on the agenda again in the none too distant future. Eventually the proposal goes through because the person who asked the awkward questions isn't there the next time or sleeps through that part of the agenda or the chair refuses to allow time for discussion or it gets bundled with other supposedly related business and nodded through on the grounds of efficiency etc.

Now, dedicated though they all no doubt are, I can't see how any single member of the JURI committee let alone the collective whole could, in the space of two days, cogently review, assess, evaluate, engage in substantive discussion and come to informed conclusions and recommendations on the range of items that were on that agenda.

And by the way the latter half of the second day was given over to an "exchange of views with Jiří Pospíšil, Czech Minister of Justice, on the priorities of the Czech Presidency"; so they actually had a day and a half for the substantive business listed above.

So the copyright term extension policy and the review of the 2001 copyright directive and public access to EU documents and etc. cannot possibly have been given any kind of appropriate evaluation. Here in a nutshell, I guess, is my problem with the policy-making processes in the EU. Complex processes give the illusion of serious scrutiny of legislative proposals; whereas in practice these same processes act as rubber stamping shops for those with the stamina and the funds to repeatedly peddle their own vested interests in a constant series of wars of attrition until those vested interests get written into the statute books.

UK government rules out 3 strikes?

The intellectual property minister, David Lammy, has told the Times that the government has ruled out the the possibility of passing legislation to force ISPs to cut off customers for suspected copyright infringement. At least until the next time a member of the government goes all doe-eyed and groupiefied in the presence of some celebrity rolled out on lobbying and PR duty by the entertainment industry...