Friday, March 13, 2009

Law Lord: government sanctioned illegal surveillance

Via Nicholas Bohm on the ukcrypto list, comes a link to a fascinating decision from the House of Lords this week on the surveillance of lawyers' discussions with their clients facilitated by the Regulation of Investigatory Powers Act, 2000. Lord Phillips, dissenting from the majority view, says:
"The appeal raises... two issues of general importance:

i) What impact, if any, does the Regulation of Investigatory
Powers Act 2000 (“RIPA”) have on the common law right
of legal professional privilege (“LPP”)?
ii) What impact, if any, does RIPA have on the right accorded
by a number of statutory provisions of a person detained in
a police station or in prison to consult a lawyer privately?

52. On 30 November 2007 the Divisional Court held that monitoring
of legal consultations in police stations or prison cannot lawfully be
authorised under the Code in its present form. The reaction of the
Secretary of State to that finding was made clear by Mr Fordham in his
written case on her behalf. This was that, contrary to the decision of the
Divisional Court, the Code covered consultations between legal advisers
and their clients. I quote from paragraph 7(4)(5) that case:

“(4) The safeguards contained within RIPA and the Code
are sufficient to ensure, in the case of directed surveillance
in both of the relevant factual scenarios, the requisite
quality of law to satisfy the Art. 8 requirement “in
accordance with the law”.

(5) The Secretary of State nevertheless recognises the
sensitivities that surround the possible use of directed
surveillance in the two factual contexts at issue, and has
carefully considered the Divisional Court’s concern
regarding the adequacy of the safeguards that would apply
at the point when any such directed surveillance was
authorised. The Secretary of State would wish to make
clear at the outset that, as a matter of policy, she considers
it desirable to take the steps necessary to remedy the
concern identified by the Divisional Court. In effect,
directed surveillance of legal consultations in detention
would fall to be assimilated to “intrusive surveillance” for
the purpose of prior authorisation. That could readily and
properly be achieved by an order under RIPA s. 47(1)(b)
characterising as “intrusive”, surveillance in locations
where it is known that consultations are taking place
between detainees and their legal advisers.”

53. This stance was not satisfactory. The Divisional Court did not
express concern. It made a finding of law against the Secretary of State.
She chose not to appeal against that finding. In those circumstances it
was not open to her to consider as a matter of policy whether to “take
the steps necessary to remedy the concern identified by the Divisional
Court”. The position was simply that unless and until she took the
appropriate steps she could not lawfully continue to carry out
surveillance on legal consultations in prisons or police stations..."
Baroness Hale however, reluctantly says:
"67. I agree, for the reasons given by my noble and learned friends
Lord Hope of Craighead and Lord Carswell, that RIPA does permit
the covert surveillance of communications between lawyers and their
clients, even though these may be covered by legal professional
privilege and notwithstanding the various statutory rights of people
in custody to consult privately with their lawyers. This is an
unpalatable conclusion, but one to which I am driven both by the
plain words of the Act and by the history of legislation on this
Lord Carswell:
"92. The appellants have brought this appeal in order to challenge the
finding of the majority of the Divisional Court that RIPA was
intended to extend to legal or medical consultations...
The Secretary of State has, however, stated
that she is willing to make an order under section 47(1)(b) of RIPA
characterising surveillance of consultations between detainees and
their legal advisers as intrusive surveillance, with the safeguards
which go with that level of surveillance. If done, this would make
consideration of directed surveillance of such consultations
superfluous. It is regrettable, however, that no step has yet been
taken to make the necessary order, notwithstanding the fact that the
present practice was declared unlawful over a year ago, and no
appeal was brought against the court’s decision. Having said this, I
do not propose to enter into further discussion of the proportionality
of directed surveillance of legal or medical consultations, save to say
that I agree with the conclusion reached by the Divisional Court...

100. I commence with the wording of RIPA. In its natural and
ordinary sense it is capable of applying to privileged consultations
and there is nothing in its wording which would operate to exclude
them... It seems to me unlikely that the
possibility of RIPA applying to privileged consultations could have
passed unnoticed. On the contrary, it is an obvious application of the
Act, yet no provision was put in to exclude them.

105. I conclude accordingly that Parliament intended that the covert
surveillance provisions of RIPA should extend to the type of
lawyer/client and doctor/patient consultations which are ordinarily
protected by legal professional privilege."
Lord Neuberger:
"106. In my view, Part II of the Regulation of Investigatory Powers Act
2000 (“RIPA”) permits covert surveillance of communications and
consultations between a person in custody and his or her lawyer,
notwithstanding that such communications enjoy legal professional
privilege, and despite such a person’s statutory right to consult a
solicitor privately."

108. If covert surveillance is carried out in accordance with Part II of
RIPA, the natural meaning of the opening words of section 27(1) is
that, whatever rights would otherwise be infringed thereby, the
surveillance is nonetheless lawful. As Lord Phillips’s admirable
survey of the law demonstrates, this case involves two rights, which
are different, but very closely connected, namely the right of a
person to consult a lawyer in private, and the right to legal
professional privilege in connection with communications with one’s
lawyer. Any modern civilised legal system recognises the
fundamental importance of these two rights, and therefore one feels
an instinctive initial reluctance to hold that section 27(1) permits
covert surveillance of such consultations and communications, as it
would appear significantly to undermine such important rights.
109. However, while these two rights are very important, neither can
possibly be regarded as unqualified. Both rights can self-evidently
be abused for improper, even criminal, purposes; indeed, as a result
of such abuse, the rights themselves could fall into disrepute...

111. It must be acknowledged that there are two inherent paradoxical
problems in the exercise of intercepting or listening in on privileged
communications and private consultations between lawyer and
client. First, the authorities cannot know if the privilege and right to
privacy are being abused and that the iniquity exception applies,
until the interception or listening in has occurred and its results
examined. Secondly, the authorities cannot warn the parties in
advance that interception or listening in will or will not occur, as to
do so would defeat the whole point of the exercise. Further, it is selfevident
that knowing that a consultation or communication may be
the subject of surveillance could have a chilling effect on the
openness which should govern communications between lawyer and
client, and is the very basis of the two rights. However, none of these
problems can call into question the lawfulness of the statutory
authorising of the surveillance of privileged communications,
although they underline the fundamental requirement of clear and
stringent rules governing the authorisation, circumstances, manner,
and control over the fruits, of any such surveillance.

112. Accordingly, there is nothing intrinsically objectionable in a
statute which authorises surveillance of communications and
consultations between a lawyer and client, provided that the statute
includes safeguards which ensure that such authorisation complies in
all respects with the requirements of the Convention. Additionally, I
see no reason why the safeguards cannot be in a Code of Practice, at
least if the statute provides that such a code has to be created and
complied with (as is the position here – see sections 71 and 72 of
RIPA); that is all the more true where, as here, the code has to be
laid before Parliament...

118. Lord Phillips has characterised the nature of the decision of the
majority of your Lordships as being that RIPA permits the Code to
authorise surveillance of communications between lawyers and their
clients, whether or not in custody. That is indeed as far as our
decision in this case goes, and we should not, I think, be taken as
thereby endorsing the provisions of the Code, as we are not directly
concerned with those provisions, and, in particular, whether they
comply with the requirements of the Convention. Indeed, in my
view, it must be highly questionable whether the Code sufficiently
clearly identifies (or limits) either the circumstances in which
surveillance may or may not occur, or how the information thereby
obtained may or may not be used. At least as at present advised I
share the doubts and concerns about the Code expressed by Lord
Phillips at paras 49 to 51. The question of the use of material
obtained by surveillance could have arisen in one of the cases before
us, namely that of M, had he not been released without charge, and,
in that connection, I agree with Baroness Hale’s observations at
paras 71to 74.

119. I also respectfully agree with what Lord Phillips says at paras 52
and 53. Having decided not to appeal the Divisional Court’s decision
that surveillance of privileged and private consultations under the
present regime is unlawful, the Secretary of State should have
ensured that such surveillance did not take place or she should have
promptly changed the regime so as to comply with the Divisional
Court’s decision. As Lord Carswell points out, more than a year has
elapsed since that decision, and your Lordships were told that the
Secretary of State was not even in a position to produce a draft
regulation embodying the changes to ensure that such surveillance
was carried out legally. Unless no surveillance of privileged and
private consultations has been going on for the past year in the
United Kingdom (which appears most unlikely), this strongly
suggests that the Government has been knowingly sanctioning illegal
surveillance for more than a year. If that is indeed so, to describe
such a state of affairs as “regrettable” strikes me as an
So RIPA can facilitate surveillance of privileged consultations between solicitors and clients but only under carefully regulated conditions which should be specified in the RIPA Code of practice, which in turn would make it compliant with the European Convention on human rights. Though it wasn't a question for the Lords in this instance, however, the Code was declared not compliant with the Convention by the Divisional Court a year ago and so, Lord Neuberger says, the government has probably been "knowingly sanctioning illegal surveillance for more than a year" and government suggestions that such a state of affairs is "regrettable" strikes him as an "understatement."

Translating from law-lord-ese he's basically saying the Secretary of State has been outrageously incompetent in not getting the RIPA Code put in order.

EU Parliament wants transparency on ACTA

At least the EU parliament is apparently asking for more transparency on legislative documents and international agreements like the Anti-Counterfeiting Trade Alliance ACTA.
"No legislative documents should be kept secret: this must be a basic principle of the reformed policy on access to documents, the European Parliament says in a vote on a new EU rules on the issue. Members adopted amendments to the draft proposal but postponed the vote on the legislative resolution, leaving the door open for further negotiations and a first-reading agreement. The European Parliament adopted amendments on the basis of a codecision report drafted by Michael CASHMAN (PES, UK) in order to revise the 2001 regulation on access to documents, which has been followed by a number of rulings by the Court of Justice. The revised regulation will incorporate these rulings into a single framework for all the institutions, but MEPs want to go further...

Documents on International agreements to be made public

International accords on the sharing of confidential information concluded in the name of the EU (such as the agreement with the USA on passenger name records or "PNR"), must not give a non-EU country or an international organisation the right to prevent the European Parliament from accessing confidential information.

Members also call the Commission to make available all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) - which will contain a new international benchmark on intellectual property right enforcement. "
Update: Meanwhile on the other side of the pond the Obama administration has declared ACTA documents to be state secrets, or more precisely, "information that is properly classified in the interest of national security pursuant to Executive Order 12958."

Sound copyright: How extending copyright term in sound recordings actually works

I has the privilege of attending the First Arcadia Lecture given by James Boyle at Wolfson College Cambridge yesterday evening. As ever, James spoke passionately, eloquently and entertainingly, this time on "Cultural Agoraphobia and The Future of The Library".
James Boyle argues that we have a bias that makes us unduly skeptical of open networks, systems and methods of production. The success of non proprietary systems -- ranging from open source software to Wikipedia and the open Internet itself -- fills us with surprise. He calls this bias "cultural agoraphobia." In a world where all texts were tangible, the institution of the library stood for the proposition that a certain degree of openness was good; that a place that allowed free access to knowledge by every citizen was one of the defining institutions of a liberal society and culture. How will that principle change or evolve in the digital world? Will it survive at all? What is the future of the library in a world grappling with cultural agoraphobia?
His explanation of how, until 1976 in the US, 85% of most cultural works from the 20th century fell into the public domain after 28 years but since then nearly all of 20th century culture has been locked up, had a particularly profound impact on the audience. From 1976 changes in the law, removing the need to register and renew works and successive extensions of copyright term means that, in the US, most creative works since 1923 are still protected by copyright - most of these no longer commercially available and/or copyright owners impossible to identify.

Back in the evidence free world of IP policymaking, sadly the EU presses ever closer to extending the term of copyright in sound recordings by 45 years. They really should read James' latest book, The Public Domain, but given the average attention span of a modern politician maybe they could be persuaded to scan Sound Copyright's relatively short but really very good brief on How extending copyright term in sound recordings actually works and the associated evidence. I'm sure they won't mind me posting it here:
The European Commission has proposed to extend the term of copyright in sound recordings in a move "aimed at performers". We believe this does not address the problem it claims to, while imposing serious costs on consumers, follow-on innovators and re-users of information. We also believe it endangers the basis of public respect and acceptance of intellectual property.

How copyright works
Copyright is a monopoly granted for a limited time to incentivise artists and performers to create works, while protecting the interests of society at large in having access to those works. It exists because copying creative works, as opposed to, say, "copying" crops, or cars, is much easier thancreating them from scratch. Artists need protection from those who would copy their work, and so we have copyright. But a society needs access to its cultural heritage and protection from
entrenched monopolies, and so copyright is time-limited.

It is important that policy-makers get the balance of copyright right. The Adelphi Charter, a framework for policy makers considering changes to intellectual property legislation, urges governments to automatically presume against extending the scope or term of intellectual property rights, stating that "the burden of proof in such cases must lie on the advocates of change".

The evidence on term extension
In 2005 Andrew Gowers, former editor of the Financial Times, conducted an independent review of the UK's Intellectual Property Framework. Working with the Centre for Intellectual Property and Information Law (CIPIL), Cambridge, the review took a rigorous, evidence-based approach. In examining issues of parity, balance of trade, incentive, cost to consumers and fairness, it concluded against extension.

In 2006 a study initiated by the Commission's DG Markt, from the Institute for Information Law (IViR), University of Amsterdam, found that any extra "revenues would have to be paid by users and consumers of sound recordings" and concluded that the case for extension was unconvincing.

In 2008 the leading European centres for intellectual property research released an impact study and review of the evidence. Concluding that the prime beneficiaries would be the owners of large back catalogues, competition would be impeded and consumer prices higher, it, too, recommended against extension.

CIPL. The PwC study, based on analysis of 129 recordings, admits that its findings are unreliable:

[This study is not of] a large number of recordings, relative to the amounts, to be introduced in the future... Hence, there is no certainty that the current observed effect (i.e. lack of price differential of in-copyright and out-of-copyright recordings) will be repeated in the future.

The cost to consumers, follow-on innovators and cultural diversity
It is logically impossible to have benefits for producers or performers with no costs to consumers. The reality for consumers, according to CIPIL, is more likely to be one of significant costs "of between 240 and 480 million pounds."

The Commission's impact assessment ignores the cost to information professionals and follow-on innovators such as musicians, film makers and public domain record labels who will incur costs in licencing recordings that are in copyright for another 45 years, and in seeking permission to use works which may or may not have been affected by the proposed "use it or lose it" clause.

There is no strong basis from which to argue that record companies will be incentivised by a term extension to digitise niche cultural works. The Commission has conceded that "phonogram producers will focus on re-issuing the premium CDs during the extended term, i.e., those with very high profit margins". Contrasted with non-rightsholder efforts to digitise works of historic value, such as those of music fan Christopher Bolling, who single-handedly archived 4,000 tracks from old 78rpm records, it becomes clear that allowing recordings to enter the public domain is of
significant value to cultural diversity.

Who really benefits?
The Commission estimates the performers' share of new sales revenues from the proposed extension at 10%. However, this conveniently ignores their own statement that redistribution will be highly skewed in favour of the top earning 20% of performers. From that 10% share "between 77% and 89.5% of all income ... goes to the top 20% of earning performers".

For the vast majority of performers the projected extra sales income resulting from term extension is likely to be meagre: from as little as 50¢ each year in the first ten years, to as “much” as €26.79 each year.

Performers' remuneration from broadcasting, public performance or private copying compensation will be affected. Assuming that licencing fees remain constant, earnings to performers will not grow but be sliced more thinly and distributed for longer to more estates of deceased artists. Artists living now will not earn more over their life time.

Moreover the proposed session musician fund comes at a tax of 400%. For every €1 allocated to performers, record labels will get €4.

Each major label would be expected to gain €8.2million—€163million over the 45 year term. That, in turn, works out at €205,000—€4.075m per label per year. This is a windfall for record labels.

As the leading centres for intellectual property research wrote to Commission president Jose Manuel Barroso:

"There are many possible measures that would not result in monopolising the back
catalogue of recorded music for another half century.

“[Member states] could regulate of copyright contracts, and social security and insurance schemes; and at the European level, [examine] equitable remuneration rights only available to living performers, and the regulation of collecting societies and licence tariffs, such as the nature and distribution of income from any copyright levy scheme.”

This proposal, unsuccessfully lobbied for at Member State level, is not about helping poor performers despite the claims. In refusing to confront the critical arguments, it ignores the balance of evidence, bringing serious costs to consumers, follow-on innovators and re-users of sound recordings. It also endangers the basis for public respect and acceptance of intellectual property.

As the Commission's own advisers have stated:

[It] reveals an intention to mislead the Council and the Parliament, as well as the citizens of the European Union. In doing so the Commission reinforces the suspicion, already widely held by the public at large, that its policies are less the product of a rational decision-making process than of lobbying by stakeholders.

MEPs now have to defend the rights of ordinary citizens and reject this bogus proposal in the strongest terms."

EU copyright term extension vote

Leading intellectual property academics are warning again of the dangers of the proposals coming before the EU parliament on 23 March to extend copyright term in sound recordings. The copyright term webpage at the Centre for Intellectual Property Policy & Management at Bournemouth University says:
"On 23 March 2009, the European Parliament is due to vote on a Directive, extending the term of copyright for sound recordings. Such an extension, from 50 to 95 years (or perhaps 70 years), will harm Europe’s culture and economy.

A signed press release from key European experts opposing the extension has been released, including: the Centre for Intellectual Property Policy & Management (CIPPM), Bournemouth University; Centre for Intellectual Property & Information Law (CIPIL), University of Cambridge; Center in IT and Law (CRID), Universitaires Notre-Dame de la Paix de Namur; Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg; Max-Planck-Institute for Intellectual Property, Competition and Tax Law, Munich; Institute for Information Law, University of Amsterdam; Centre for Intellectual Property Rights, Catholic University Leuven; NEXA Center for Internet & Society, Politecnico di Torino.

View the Joint Press Release by European Academics - 11 March 2009 (pdf - 319kb) press release.

Additionally, a list of independent studies and the key signatories opposing the proposed Copyright Term Extension is now available.

Download Independent Studies of Copyright Term Extension (pdf - 150kb)"

It's worth quoting the press release in full:
"Joint Press Release by European Academics (11 March 2009)

The Proposed Directive for a Copyright Term Extension

On 23 March 2009 the European Parliament is due to vote on a Directive,
extending the term of copyright for sound recordings. Such an extension, from 50
to 95 years (or perhaps 70 years), will harm Europe’s culture and economy.
The Directive was proposed by Internal Market Commissioner Charlie McCreevy,
against the advice of all independent studies on the issue. The legislative
process was rushed, and there has been only the most superficial parliamentary

The European Parliament is being asked to remove sound recordings from the
public domain for another generation, ostensibly in order to benefit performers. In
reality, copyright extension will serve the shareholders of four major multinational
companies that control the valuable recordings of the 1960s (Universal, Warner,
Sony and EMI).

It is not surprising that many performers’ organisations and collecting societies
support the Proposed Directive. They do not have to carry the costs – which are
likely to exceed EURO 1 billion to the general public (analysis based on the
Commission’s own figures – see study 8, below). Many performers also do not
appear to understand that the proposal would lead to a redistribution of income
from living to dead artists.

If Europe wishes to keep its ability to innovate, it must not lock in the current
industry structure at a moment of great technological change, it must not inhibit
digital creators and archives in the exploration of music - music which has been
paid for once already, during the existing term!

The public will not be fooled. If copyright law, cynically, departs from its purpose,
piracy becomes an easy option.

If the Proposed Directive really wanted to help living performers, it would (i) limit
the term to the artist’s life, (ii) make such an extended term not transferable to
record producers (labels), (iii) regulate that the extended period will be managed
via collecting societies (ensuring that sound recordings will become available),
and (iv) regulate contracts during the existing term (e.g. by introducing use-it-orlose-it provisions).

We urge the European Parliament, and the governments of member states of the
European Union, to consider carefully the independent evidence on copyright
term extension, and reject the Directive in its proposed form."
Sound Copyright are again urging people to contact their MEPs about the issue. They also prvovide some really sensible tips on how to communicate with MEPs and an excellent crib sheet on the effects of term extension.

Wednesday, March 11, 2009

Times Newspapers v UK: European Court of Human Rights

The Times Newspaper group has lost its challenge against UK defamation law in the European Court of Human Rights. The Guardian article is a reasonable summary of the outcome in The Times Newspapers Ltd. (Nos. 1 and 2.) v. The United Kingdom, but fails to capture the subtleties of the decision. Not surprisingly the journalist and "media lawyers" and "experts" "condemned" the ruling though we're not told who the experts or media lawyers are. I read it as being very carefully and narrowly constrained to the facts of this particular case, so don't expect it to have a great deal of wider significance.

The Times published two articles in 1999 linking a Russian born businessman with the Russian mafia. He sued for libel and eventually won in March 2001. Significantly he also started a second libel suit on 6 December 2000 whilst the first was still ongoing, based on continued publication of the the articles without qualification in newspaper's internet archive. The Times left these articles in the archive without such qualification until 23 December 2000 at which point a notification was attached to each noting they were subject to a defamation lawsuit:
"“This article is subject to High Court libel litigation between [G.L.] and Times Newspapers. It should not be reproduced or relied on without reference to Times Newspapers Legal Department.”
(G.L. is the Russian businessman)

The Times argued unsuccessfully through the UK courts that there should be a single publication rule - as exists in the US - so they could avoid be sued multiple times over the same article. Without such a rule they couldn't maintain an effective archive and it was a significant burden on the right to free expression. The significant parts of the ECHR judgment against the Times, in my view, were:
"26. The applicant complains that the Internet publication rule constitutes an unjustifiable and disproportionate restriction of its right to freedom of expression as provided in Article 10 of the Convention, which reads, insofar as relevant, as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”

27. The Court has consistently emphasised that Article 10 guarantees not only the right to impart information but also the right of the public to receive it... he Internet plays an important role in enhancing the public's access to news and facilitating the dissemination of information generally. The maintenance of Internet archives is a critical aspect of this role and the Court therefore considers that such archives fall within the ambit of the protection afforded by Article 10...

47. On the facts of the present case, the Court considers it significant that, although libel proceedings in respect of the two articles were initiated in December 1999, the applicant did not add any qualification to the articles in its Internet archive until December 2000. The Court recalls the conclusion of the Court of Appeal that the attachment of a notice to archive copies of material which it is known may be defamatory would “normally remove any sting from the material”. To the extent that the applicant maintains that such an obligation is excessive, the Court observes that the Internet archive in question is managed by the applicant itself. It is also noteworthy that the Court of Appeal did not suggest that potentially defamatory articles should be removed from archives altogether. In the circumstances, the Court, like the Court of Appeal, does not consider that the requirement to publish an appropriate qualification to an article contained in an Internet archive, where it has been brought to the notice of a newspaper that a libel action has been initiated in respect of that same article published in the written press, constitutes a disproportionate interference with the right to freedom of expression. The Court further notes that the brief notice which was eventually attached to the archive would appear to undermine the applicant's argument that any qualification would be difficult to formulate.

48. Having regard to this conclusion, it is not necessary for the Court to consider in detail the broader chilling effect allegedly created by the application of the Internet publication rule in the present case. The Court nonetheless observes that the two libel actions brought against the applicant concerned the same two articles. The first action was brought some two to three months after the publication of the articles and well within the one-year limitation period. The second action was brought a year later, some 14 or 15 months after the initial publication of the articles. At the time the second action was filed, the legal proceedings in respect of the first action were still underway. There is no suggestion that the applicant was prejudiced in mounting its defence to the libel proceedings in respect of the Internet publication due to the passage of time. In these circumstances, the problems linked to ceaseless liability for libel do not arise. The Court would, however, emphasise that while an aggrieved applicant must be afforded a real opportunity to vindicate his right to reputation, libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10.

49. The foregoing considerations are sufficient to enable the Court to conclude that in the present case, the finding by the domestic courts in the second action that the applicant had libelled the claimant by the continued publication on the Internet of the two articles was a justified and proportionate restriction on the applicant's right to freedom of expression.

50. There has accordingly been no violation of Article 10 of the Convention."

So because the Times was not even required to remove the articles from its archive during the timescale of the court proceedings, merely add a notice to each saying it was the subject of a libel case, it was not a big deal. And since they demonstrated how easy it was by eventually adding the qualification to the articles a few weeks after the second libel suit was brought, the newspaper's claims about it being an unnecessary burden were not credible according to the court. But - and this is the significant point that effectively restricts the decision to the narrow facts of the case - the court makes the point at the same time as finding against the newspaper that:
"The Court would, however, emphasise that while an aggrieved applicant must be afforded a real opportunity to vindicate his right to reputation, libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10."
So the loud claims doing the rounds about the judgment undermining the freedom of the press can be taken with a pinch of salt. The Guardian report suggests that "experts" expect the Times to appeal the decision to the Court's Grand Chamber. I'm not a big fan of the UK's defamation laws but given the facts here they'd be better off taking the loss and not pouring any more money into m'learned friends pockets, at least in relation to the specifics of this case.

Is Google Book Search fair use?

I've been watching Larry Lessig's talk on Google book search from 2006, in connection with a postgraduate IT law course we're producing at the OU.


Tuesday, March 10, 2009

The complex new revenue flows of the music business

Johnny Black had a nice article in the Guardian on Friday, So Who's the Biggest Star?
"It used to be easy to tell who the big acts were. If an artist appeared regularly on Top of the Pops or lodged their releases consistently in the charts, we knew they were popular and, very probably, financially successful.

That's no longer true. There are now hitmakers who appear frequently on TV, who are household names and faces, but who are not making fortunes. At the same time, increasing numbers of relatively unknown musicians are quietly getting rich without their faces ever appearing in Heat magazine, or even NME. The old rules for judging pop success no longer apply...

..."We need to look at a lot more factors to be able to determine who's really doing well today... the way their incomes are made up is much more complex. It's not just about how many records, or even concert tickets, you have sold."

...the increasingly lucrative revenue streams artists can tap into from a host of sources - including what is called "synchronisation", product endorsements, merchandising, internet streaming, ringtones, magazine cover mounts and broadcasting royalties.

Synchronisation means getting your music into TV ads, TV series and movies, and on to ringtones and computer games. It can be hugely lucrative: "Aerosmith have probably earned more through royalties in Guitar Hero than they have from selling albums in the past two decades," suggests Sat Bisla, founder of Musexpo, an annual Los Angeles-based international music and media conference."
We've seen business models evolving and getting increasingly complex in the music industry and although I've been watching the process with a kind of abstract academic eye for such a long time now, I don't know if I really got it until one day my then 10-year old son said he wanted to get some CDs by a rock group I had never heard of. Where had he come across this group? They produced the background tracks on one of the computer games he was particularly fond of at the time. He tracked down the name of the band, then actively sought out other samples of their work on YouTube and decided he liked them so much it was worth saving up his pocket money to acquire some of their CDs. Now if a 10-year-old with seriously limited disposable income can go to so much trouble then surely the promotional worth of outlets like computer games and YouTube must be obvious to even the most old style music executive, mustn't it? Mind you, I do have to admit, still, to completely failing to understand why the ringtones market is so lucrative. Perhaps I too could have been an executive at one of the big four?

Trademarks: honesty not a sufficient defence

There was an interesting trademark case, Essex Trading Standards v Singh [2009] WLR (D) 81 in May of last year that noted that an honest belief that you are not infringing a trademark is not a defence - you have to be able to prove that that honest belief was reasonable. So if you spend a day looking after a market stall for a mate with a history of dodgy dealings who has assured you that all the gear on the stall is legitimate, you can still be held responsible for trademark infringement.
"In order to acquit a defendant of a charge of unauthorised use of registered trade marks in relation to goods, contrary to s 92(1)(c) of the Trade Marks Act 1994, under the statutory defence provided by s 92(5) of the Act, it was not enough for the court to conclude on the facts that the defendant had acted in the honest belief that the use of the signs was not an infringement of the registered trade marks; it was also necessary to find that he had reasonable grounds for so believing.

The Divisional Court of the Queen’s Bench Division so held when allowing an appeal by way of case stated by the claimant, Essex Trading Standards, against the decision of 16 May 2008 of the Justices for the County of Essex to acquit the defendant, Wallati Singh, of two offences under s 92(1)(c) of the 1994 Act.

The defendant had been charged with having in his custody and control in the course of a business a quantity of trainers bearing the Nike sign or logo (the registered trademark of Nike International Ltd of Oregon, USA), and trainers bearing the BAPE sign or logo (the registered trademark of Nowhere Co Ltd of Tokyo) with a view to selling them at Pitsea Market, Basildon. The defendant had agreed to mind the stall on behalf of a friend, Anthony Hooper, who worked as a market trader in sports shoes. In evidence, he denied that he knew the trainers were counterfeit, claiming that he had asked Mr Hooper if the trainers were legitimate and that Mr Hooper had confirmed that they were; that he had no experience that would have enabled him to distinguish between legitimate and counterfeit trainers; and that he was of good character.

GOLDRING LJ said that s 92(5) placed a legal, persuasive burden on the defendant. The issue for determination was whether, by asking his friend whether the goods were “OK” or “dodgy” (counterfeit), to which Mr Hooper was alleged to have replied that “it was all sweet, stock clearance, a job lot”, the defendant had discharged that burden. In his Lordship’s view, the magistrates were not entitled to conclude that the defendant had shown that he believed on reasonable grounds that the use of the signs was not an infringement of the registered trade marks. The defendant had known that they had been transported in a van that did not belong to Mr Hooper, but to the defendant’s brother who had previously been warned by Trading Standards Officers for selling counterfeit goods; he had not seen, or sought, documentation; he had relied solely on the word of a person unwell due to drug addiction. Although the magistrates had correctly sought to apply the principles set out in R v Johnstone [2003] 3 All ER 884, they had failed to have regard to that part of the judgment to which they had referred in their first question, namely that “those who act honestly and reasonably are not to be visited with criminal sanctions”. It was not enough to conclude that the defendant had acted honestly; he had to have acted on reasonable grounds also. The defendant had not done so on the evidence, as any reasonable bench of magistrates had been bound to conclude. The magistrates were entitled to have regard to the defendant’s previous good character, but it was irrelevant in deciding whether the grounds for his belief were reasonable."

Monday, March 09, 2009

Conyers fails to explain opposition to open access to science

From Michael Eisen at the Huffington Post:
"Lawrence Lessig and I have been writing about the link between publisher contributions to members of the House Judiciary Committee and their support for H.R. 801 - a bill that would end the newly implemented NIH public access policy that makes all works published as part of NIH-funded research freely available online. On Friday, House Judiciary Chairman John Conyers (D-MI) - lead sponsor of the bill - responded in a letter on Huffington Post.

The first several paragraphs of Conyers' letter contain an outline of his record as a progressive politician. But no record, no matter how distinguished, is an excuse for introducing an atrocious piece of legislation that sacrifices the public interest to those of a select group of publishing companies.

Conyers would have us believe that it is just a coincidence that his bill would erase a government policy vehemently opposed by publishers who have contributed to his campaigns. But his response to our letter - like the bill itself - is taken straight from the publishers' playbook.

Conyers trots out the publishers' two favorite lines of attack against the policy: 1) that the NIH policy is taking a right (in this case a copyright) away from publishers, and 2) that making taxpayer-funded research available to taxpayers will bankrupt publishers and thereby destroy science.

Both arguments are specious and reflect fundamental ignorance about how science and scientific publishing work...

Far from being the reckless act Conyers portrays, the NIH policy is actually fairly conservative. It requires that papers that arise from NIH funded research be made freely available, through a website run by the National Library of Medicine, within 12 months of publication - not immediately. This delay between publication and free public access was put in precisely because it will allow publishers to recoup, and profit from, their investment in publishing by charging for access to the freshest material.

Science moves far too fast for active researchers to afford a year's delay before reading papers in their field. Thus universities and other research institutions have to maintain subscriptions to journals even if their year-old content is freely available. Many journals, realizing that their revenue comes primarily from new material, already make their complete contents freely available online after a year or less. And these journals have not reported a wave of canceled subscriptions - or any appreciable loss of revenue. So both empirical data and publisher actions refute Conyers' central argument against the NIH public access policy.

Conyers' argument is also clouded by several misconceptions about scientific publishing. He correctly identifies peer review as the most important role of scientific journals. But he is incorrect in his assertion that publishers make a tremendous investment of "their own, non-federal resources" in the process of peer review. While publishers supervise peer review, the process itself is carried out voluntarily by members of the research community. Scientists receive no remuneration whatsoever when they review a paper - they do it instead out because they recognize that peer review is central to the scientific process.

Since the salaries of most American scientists are paid, directly or indirectly, by the US government, the peer review process is actually a massive federal subsidy to publishers, whose very existence is based on the tens of billions of annual taxpayer dollars invested in scientific research. That even after they have had a year to profit from this taxpayer largesse some publishers are still unwilling to grant the public access to copies of papers they paid to produce and review is unconscionable.

And while Representative Conyers' publishing friends may have convinced him that there are severe unintended consequences that will arise from the NIH public access policy, the scientific community - who has been debating this issue for over a decade - strongly disagrees. Elias Zerhouni - who was NIH Director until last year - spent years crafting this policy in consultation with scientists, publishers, and members of Congress. It is strongly supported by his predecessor, Nobel laureate Harold Varmus, and a cadre of his American Nobel prizewinning colleagues. And the world's leading private medical research organizations - the Howard Hughes Medical Institute and the Wellcome Trust - have, after extensive research and discussion, adopted even more aggressive policies than the NIH. Does Representative Conyers really think he better understands what's good for science than they do all of these groups and people?"