NHS Internet Privacy

I wrote to my MP, Nicola Blackwood, several weeks ago asking her to sign the early day motion on NHS internet privacy first signed by Tom Watson MP:

That this House notes with serious concern that the pages of the NHS Choices website allows third-party advertising and tracking companies, including Google and Facebook, to track people's internet browsing habits; believes that it is inappropriate for advertising and social networking companies to observe what an individual is viewing on a Government website that deals with sensitive medical information; further notes that the sharing of personal data of its users with companies outside the European Economic Area and with for-profit advertising companies may render the NHS in breach of its data protection obligations to the Information Commissioner's Office; and calls on the Department of Health to review its policy to ensure the privacy of all users of its websites is protected.

I've had the following reply from her this afternoon.

Dear Mr Corrigan,

Thank you for contacting me about the issue of data protection on the NHS Choices website and I apologise for the delay in my reply.

I can understand your concerns, but it is worth noting that the use of Facebook functionality on NHS Choices was initiated under the previous administration.

The issue of Facebook capturing data is not restricted to just NHS Choices. Data transfer happens across the whole range of sites and applications on the internet, and is a result of how users’ internet browsers are set up and how people log out and close down sites.

The Government informs me that NHS Choices has strict privacy policies which are in line with the Data Protection Act. As well, Facebook capturing data from sites like NHS Choices is a result of Facebook’s own system. When users sign up to Facebook they agree Facebook can gather information on their web use from their computer. NHS Choices privacy policy, which is on the homepage of the site, makes this clear.

The Government has asked the NHS Choices service to increase the prominence of information informing users of the potential for information about their activity being captured by services like Facebook, including what actions they can take to restrict this.

I hope you find this information helpful and thank you again for taking the time to contact me.

Kind regards,
Nicola

Nicola Blackwood MP

So the party line seems to be:

• It is not this government's fault it's the previous lot
• People leak personal data all over the internet
• NHS Choices has a privacy policy, that the government believes is in line with the Data Protection Act; 
• Facebook is a personal data harvester
• The government will ask NHS Choices to warn people they leak personal data on the Net

I tried to be polite in responding.

Dear Ms Blackwood,

Thanks for your response.

Yes it was the previous government that this started under.

Yes people leak an inordinate amount of personal data on the internet.

Yes Facebook harvest personal data.

The NHS Choices privacy policy may or may not be in compliance with the Data Protection Act but that is largely immaterial if the operation of the site breaches the Act.

NHS Choices warning people they leak personal data on the internet is not going to solve the fundamental problem.

The site is built and operated in such a way as to facilitate the routine harvesting by third parties of the personal details of people seeking advice from a government website, often about intimate medical matters.

The social media, third party tracking features were no doubt innocently included originally to drive traffic to the site.  They are just not appropriate in the case of this kind of site. The government or the NHS should not being routinely sharing people's specific desire for information about particular medical matters with third parties, without consent.

I have little doubt that personal data pollution is going to be the environmental disaster of the information age but the sooner we start to tackle it the better chance we have of getting it under control.  In the case of NHS Choices the question of whether the site should be fixed to limit data sharing is not even a hard one.  That the government should prevaricate in this way when you ask for advice on how to respond on this matter leaves me seriously concerned that when it comes to dealing with the serious problems in this area, they will be found sadly wanting.

I understand, as a new MP, you have a lot of things to get to grips with and apparently obscure technical policy won't necessarily be top of your list of priorities; but I hope you're managing to settle into your new role now and beginning to get things under control in a way which will enable you to take an active interest in such matters as the parliament progresses.

Kind regards,

Ray

Temple Grandin and visual thinking: the world needs all kinds of minds

The OU is currently doing a research/scholarship internal audit to get a picture of the University's measurable outputs, leading me to ponder Martin Weller's and Jim Groom's notion of the perpetuation of the zombie scholar.

"Scholars engage in a number of different activities, which operate within specific cultures. These cultures are defined in part by technology and reward and recognition frameworks. In this paper we look at the functions of the scholar, particularly focusing on research. The uptake of new technologies in research and associated practices can be seen as a barometer for innovation within higher education.
We argue that the context within which academics operate is akin to the spread of the zombie virus, with new entrants rendered zombies by the constraints of the environment. We suggest one possible antidote to this zombification of higher education is the use of new technologies and particularly the cultural norms they embody."

Modern scholars have to churn out conventional papers through conventional peer reviewed journals and tick the appropriate boxes on conventional metrics to have a legitimate career.  The sheer enormity of the grunt work involved in doing this leaves no room for innovating, exploring new technologies, thinking.  Standardisation and zombification, accepting absorption into the academic Borg is the rational means of survival.

If the university sector is bad in this respect (though Martin and Jim propose a partial solution through the - surprise, surprise - engagement with new technologies) then schools appear to be worse, with their league tables and targets and box ticking and fear of not fulfilling all their administrative duties to keep their political masters and the inspectors on side.  This kind of zombiefication is not limited to the education system - see Martin's recent pop at the media for example or Dan Gillmor's excellent new book on the same - but it's the education system I want to stick with here and in particular Temple Grandin's recent TED talk The World Needs All Kinds of Minds.


Grandin does a lot of travelling and meets a lot of bright geeky/nerdy kids that teachers - often dedicated professionals - have no idea what to do with.  She's passionate about changing the world through enabling people to realise their potential, regardless of the different learning and thinking modes that might be most natural to them.  She herself was not interested in 'learning' until an enthusiastic, unconventional science teacher, previously a NASA scientist, got her engaged in science through tapping into her innate visual thinking talents.

Grandin herself is autistic which partly manifests itself in an exceptional ability to think in pictures and patterns.  What's interesting in the educational technology context is that she repeatedly uses the Google images analogy to describe how her brain works but also that she naturally uses web tools like YouTube as part of her work.  She talks about the autistic/geeky/nerdy mind tending to be fixated on certain things.  With kids that can be lego, cars, insects, computers, the weather or a host of other things.  That fixation, she argues, is the handle that schools can use to engage those kids - use it as a basis to teach maths or science or a whole range of other things.  The important thing is to light the spark of learning and in one sense it doesn't matter what you teach them.  It has to be said that it is not just autistic kids that this applies to.  There has been political hand wringing about the lack of interest teenage boys or [insert your own favorite demographic group here]  have had in learning/schooling for as long as I can remember.

Yet the entire system is designed for standardisation and churning out the perfect job trained zombies. It's a great system for bureaucrats to work in but not for kids with different kinds of learning styles, thinkings skills or interests.  Grandin is passionate about the need to work with and nurture different kinds of minds - silicon valley is chock full of autistic talent for example - if we are to tackle the serious challenges facing the world today; whether that's climate change, global warming or the energy crisis for example.  If Einstein, Mozart, Turin, Da Vinci or Gutenberg had been around today they would likely have been diagnosed as autistic.

When Grandin was at school she had a mental block against algebra - the autistic mind fixates on certain things and blocks others and she just couldn't do it.  As a result she was banned from taking geometry and trigonometry.  Think about that - an exceptional visual and pattern thinker banned from practicing those natural skills on subject matter at which they would have enabled her to excel.  How many kids are locked away from activities which could create that learning spark due to deliberate bureaucracy, baffled overworked teachers who don't know what to do with certain children, the national curriculum, the lack of time and space to do anything that doesn't contribute to pursuing targets - systemic, introspective, bureaucratic, neglect?

Depressing really but as Samuel Langhorne Clemens, aka Mark Twain, once said, you should never let your schooling interfere with your education. I wonder if there is anything in Martin's and Jim's partial cure through technology that could work in the school context? I suspect so though have my doubts that the UK schooling systems as currently constituted could facilitate it.  Grandin's right that if we want to change the world for the better and address the really big issues like the energy crisis then we need to be lighting the spark in the varied minds of coming generations. As she once wrote:

"If by some magic autism had been eradicated from the face of the earth then men would still be socialising in front of a wood fire at the entrance to a cave"

On a final note it was interesting to hear her talk about her passion for server farms because they 'contain knowledge, they contain libraries'.  Another advocate for open access.

SCRIPTed including review of Marsden's Net Neutrality book

The latest issue of the excellent SCRIPTed journal of law, technology and society is now available, including my review of Chris Marsden's book, Net Neutrality: Towards a co-regulatory solution.(copy below). I particularly recomend the refereed articles Human Genetic Manipulation and the Right to Identity: The Contradictions of Human Rights Law in Regulating the Human Genome by Norberto Nuno Gomes de Andrade, pp.429-452; Human Gene Patents and Genetic Testing in Europe: A Reappraisal by Naomi Hawkins, pp.453-473 and El derecho de desistimiento en el ámbito de la contratación electrónica realizada en España (The right of withdrawal in the field of Spanish electronic procurement) by  David López Jiménez, Fernando Barrio, pp.497-514.

Review of Net Neutrality: towards a co-regulatory solution.

Net neutrality, explains Christopher T. Marsden on the second page of this book,

is about the rules of the road for Internet users, and about the relationship between the owners of those roads and the users. Government is asked to make a decision as to which users have priority and whether road charging should be introduced, ostensibly to build wider and faster roads in future.

On 20 October 1999, the IDT Corporation, then a big a New Jersey based Internet service provider, blocked all email from the UK because some of its customers had received a large number of offensive unsolicited emails.  These appeared to come from a UK address, but the spammer had actually exploited a security hole in a UK university system, making it appear as if the bulk emails were originating there.  Just before Christmas 2004, Verizon reportedly[1] blacklisted and blocked email coming from IP addresses allocated to a collection of UK and European ISPs. IDT did not, allegedly, contact the University (of Leeds) before the action was taken.  The blocking continued for several weeks. The response – to cut off a whole country - was a bit drastic, even if the emails had come from the UK. Given congestion on the network, traffic management is standard practice for ISPs everywhere, though there is a dearth of independent empirical research as to the extent, the precise pattern or the nature of such activity. We simply have no idea whether countrywide lockdowns or similar widespread filtering are commonplace or rare.

I mention the IDT story in particular because it was in 1999 that Chris Marsden began his residential fellowship at Harvard Kennedy School, where the seed that was to grow into his excellent book, ‘Net Neutrality: towards a co-regulatory solution’, was planted.  It was the beginning of 10 years of globe trotting research and engagement with a who’s who of the smartest minds in the business: legal and technical scholars, practitioners and cross disciplinary polymaths who helped to shape the author’s ideas on this complex but hugely important subject.

The first and most important thing to say about this book is that it should be compulsory reading for policymakers everywhere. It manages to serve the dual purpose of being a primer on the subject for the general reader while also being an essential handbook for the specialist and the policymaker.  Dr Marsden gets to the heart of the key issues of net neutrality:

• Network economics
• Vertical integration and oligopolistic market evolution and concentration
• Traffic management and quality of service
• Civil rights – speech and privacy
• Conflicting needs of the large spectrum of Net users
• Regulators’ limitations
• Intermediary liability
• Commercial and political forces driving the internet towards a future of control
• European law
• The absence of individual Net user influence on policymakers
• Co regulatory policy proposals

And indeed many more.  It is probably the single most comprehensive analysis of net neutrality you will find between the covers of a single volume.

If I had one generic criticism of the book it is that the author does not provide enough detail in relation to the engineering and technology of networks.  I think there is real value in regulators and policymakers understanding the difference between circuit and packet switching, for example, and this could avoid a lot of confusion. But I would say that, because I am an engineer.  In conversation with the author, he pointed out to me that the literature on technology and engineering in this area is already rich, which is true, but it is unlikely to be perused by many non technical policymakers.  That is, however, a minor criticism.  Dr Marsden had no choice but to leave out vast swathes of material that he would no doubt have liked to have included – that is the nature of a monograph.

Tom Standage, digital editor at The Economist magazine, recently criticised the concept of net neutrality as being ‘silly’[2] and too vague – if you get three geeks in a room you will get four different definitions of the concept (which is probably true!) – and that thing that gets invoked by anyone complaining about something they dislike about the Internet. Geeks and consumer advocates have been arguing that the law should guarantee net neutrality, thereby disabling network operators’ power to engage in discriminatory practices. Mr Standage is concerned that attempts to write net neutrality into law on both sides of the Atlantic will just end up making matters worse.  The Internet is not neutral now, and there are lots of things that we do not want to be neutral. For example, it is desirable that spam is blocked, or gamers might want superfast low latency broadband services that they would be prepared to pay extra for.  The danger of saying that things must stay as they are is that you fossilise the Internet in its current state. A simplistic net neutrality law might just do that, making illegal a lot of useful things that are presently being done. So the best legislation in relation to net neutrality is none.

I share the concerns of the author about the complexity and the dangers of getting it wrong. On the other hand, the vagueness and complexity of the concept and its multiple advocates is not necessarily a bad thing.  Just as James Boyle has invoked the environment and environmentalism in his call to protect the public domain, perhaps net neutrality can serve a similar function in relation to the open Internet.  After all, ‘environment’ is quite a vague term with many meanings, but it is also an articulation of a shared interest that brings that interest into being.[3] The hunter and the animal rights activist may dislike each other intensely, but they have a shared interest in protecting the ecology and habitat of the animals they are interested in.

In any case, you will not find any over-simplified, table-thumping advocacy in Chris Marsden’s book - of either the ‘cure it with net neutrality’ or ‘cure it with market forces’ variety.  This is despite the fact that the introductory chapter begins with a quote from Barack Obama that concludes: “We can’t have a situation in which the corporate duopoly dictates the future of the Internet and that’s why I’m supporting what is called net neutrality.”  Dr Marsden, on the contrary, provides a comprehensive and pragmatic analysis of the state of net neutrality and its regulation and expects both free market fundamentalists and net neutrality purists to disagree with his suggested co-regulatory way forward. 

You get an idea of the scope of the book through the Introduction, which provides a whistle-stop tour of: net neutrality, network economics, European digital television regulation, interoperability, Microsoft litigation, Napster, Skype, mergers and acquisitions, EU telecoms liberalisation (and the variability in the effectiveness of national regulatory authorities in ensuring local loop competition), GERT (Group of European Regulators in Telecoms),[4] the 2001-2002 unravelling of the universal service commitment in the US, Machiavellian incumbent power games, the need to recognise broadband infrastructure as public works, the ruthless competition and government direction in Korea, the end to end principle, transparency failures, absence of empirical research, quality of service guarantees, 3G in Japan, traffic management, deep packet inspection, and the inevitability of discrimination where architecture permits it. 

All that and more – including a passionate assertion (with which I wholeheartedly agree[5]) that the creation, operation and monitoring of open Internet policy is too important to be left to the experts, since it is about fundamental human rights and consumer welfare, necessitating a balanced approach to net neutrality – in an introduction, before he even outlines the structure of the book, leaves you in little doubt that although it is written in an accessible style, this is a tome that will require the full concentration of the reader.  It is clear that net neutrality resides firmly in the realm of what Russel L Ackoff would have described as a ‘mess’, a collection of complex problems interacting with other complex problems and therefore part of a set of interrelated problems, or a system of problems.[6]

It is important to point out that Dr Marsden distinguishes two separate non- discrimination commitments in net neutrality, something which itself would likely illicit gnashing of purists’ teeth.  What he calls ‘net neutrality lite’ and something that ultimately forms a central plank of his co-regulatory way forward, relates to ensuring that ISPs are not allowed to engage in opaque and discriminatory traffic management to the detriment of Internet users of any class.  ‘Positive net neutrality’ on the other hand is about ensuring a balance whereby investment in future broadband infrastructure is not discouraged. Network owners would be allowed to offer access to better services – the fast lane – for higher prices, as long as those services are offered on fair, reasonable and non-discriminatory (FRAND) terms to everyone. FRAND theoretically checks the inclination of service providers, content owners and vertically integrated behemoths of both to engage in exclusive deals, disadvantaging ordinary Internet users and commercial entities not party to those deals. It is an explicit recognition of the notion that genuine competition cannot exist in an unequal world.  Much of the first three chapters of the book are given over to exploring these issues in depth. 

The first three chapters and the regulatory soup of European law in Chapter 5 may well prove to be the most challenging for the general reader.  My advice would be to stick with it, however, without worrying too much about following all the twists and turns of detailed economic and legal analysis.  Persistence will pay off.  If a general reader was to come away from the book with a simple realisation that much of what passes for public debate on net neutrality is what Dr Marsden describes as a “dialogue of the deaf” – net neutrality absolutists versus net neutrality refuseniks – then the reading time invested will have been worthwhile.  Traffic management on congested networks is a fact of life and to suggest otherwise, as net neutrality purists do, is to invite easy criticism.  Yet the promise of better quality of service ‘next year’, by those claiming that competition will cure network service problems, predates by about a decade the awakening of the public consciousness to the wiles of the Internet. Said promise is thus wearing a bit thin, and until we break the Gordian knot on large scale investment - from the public and private sectors – in universal super fast broadband infrastructure, congestion problems are going to be increasingly present.

Chapters 4, 5 and (to some degree) 6 tackle the primary concerns of digital rights activists relating to freedom of speech, personal privacy, creativity (e.g. remixing) and innovation. These in turn are intimately entangled in questions about intermediary liability and notice and takedown regimes, with particular concerns about architectural and legal control eroding the current legitimate ability of ISPs to avoid responsibility for user-generated content or traffic on their networks.  When the ability to discriminate, control, block and invade privacy (through DPI or disclosing personal details to content owners on request) is built into the network, then all those facilities will be activated, regardless of any formal rules or procedures in place to prevent such discrimination or the undermining of personal freedoms.  If the power to lay down the rules for such activities is to be devolved to senior government ministers and national regulatory authorities (NRAs) such as Ofcom, as it is, for example, in the UK Digital Economy Act 2010, it is important that they understand the complexity of the measurement of actual ISP operations and net user harm.  The temptation, therefore, would be for an independent auditor (the NRA?) to choose metrics which are easy to measure rather than those that provide truly informative indicators of sector practice. Dr Marsden pulls no punches in relation to the variable performance and failings of NRAs in this regard, despite his inclination to settle on a co-regulatory approach, the option which he begins to outline in chapter 6.

Chapter 7 deals with the unique issues of the mobile Internet, and Chapter 8 concludes with what the author admits is an imperfect, best effort compromise, based on his net neutrality lite idea that ISPs should not be allowed to engage in opaque and discriminatory traffic management, to the detriment of Internet users. Net neutrality lite would be policed by some combination of agreed industry codes and NRA monitoring and enforcement. He sums up:

Co-regulation is a prevalent but awkward compromise between state and private regulation, with constitutionally uncertain protection for end-users and a worryingly large latitude for private censorship, which has been increasing throughout the last decade…Any solution needs to be holistic, considering ISPs’ roles in the round, including their legal liabilities for content filtering…This is a policy area with no right answers that offer perfect solutions…I am happier limiting my solution to emphasize the complexity of the problem than trying to claim a one-size-fits-all solution.  Net neutrality is an issue with potentially profound consequences, and cannot be entirely left to market actors, however neutral or benign their motives.

Internet services now form an integral part of the way that many people access education, employment, government and commercial services and a world of entertainment, in addition to a personal printing press, and electronic tools facilitating creativity and communications that most of us would not have dreamed of 25 years ago. 

Cyber law and technology geeks understand that the Internet grew almost by accident, due to the fortunate coming together of a number of related things:

1.      general purpose computers - which can be programmed to do anything and are not controlled (post sale) by the vendor/manufacturer;

2.      the open network - which was open to everyone, and not just trusted sources like the existing conventional media giants; and

3.      telecoms liberalisation - a regulatory regime which meant that it could grow on the back of the telephone network, and before governments or telcos really noticed. 

All of this - the general purpose computers, the open network and the lack of control - led to an explosion of commercial, social and cultural creativity.  Enterprises like Amazon, the World Wide Web itself, Wikipedia, Google, Facebook etc. grew.  And because of the absence of concentrated control of the platforms or network none of the instigators of these entities had to ask anyone for permission. No permission was required.

Now, however, governments and commerce (including network operators) are very much aware of power of the Net and energetically attempting to assert control over it.  These combined forces are leading to a closing down of the Net and an evolution towards a future of fragmentation (walled gardens and national firewalls) and control.  That in turn kills the facility for innovation and creativity and leads to a creeping erosion of personal liberty.

So when Chris Marsden writes about a co-regulatory solution to net neutrality, he is not just dealing with some obscure, abstract technical concept, of interest only to technical specialists and policy wonks.  In ‘Net Neutrality: towards a co-regulatory solution’ he makes a hugely important contribution (though he himself admits it is an “awkward compromise”) to improving the regulation of the default electronic constitutional architecture which will shape the future of our information society. The author is also to be commended for negotiating with Bloomsbury to make the work available under the Creative Commons Attribution Non-Commercial Licence.

Ray Corrigan,

Senior Lecturer in Technology, Open University.[7]

DOI: 10.2966/scrip.070310.578

 © Ray Corrigan 2010. This work is licensed under a Creative Commons Licence. Please click on the link to read the terms and conditions.

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[1] J Gartner, “Verizon's E-Mail Embargo Enrages”, 1 October 2005, available at http://www.wired.com/techbiz/media/news/2005/01/66226.

[2] BBC Radio 4, ‘Click On’, Monday 18 October 2010.

[3] J Boyle, “The Second Enclosure Movement and the Construction of the Public Domain” (2003) 66:33 Law and Contemporary Problems, 33 -74.

[4] Note that between the editing and publication of the book the Group of European Regulators in Telecoms (GERT) was renamed the Body of European Regulators for Electronic Communications (BEREC).

[5] R Corrigan, Digital Decision Making: Back to the Future (London: Springer-Verlag, 2007), at chapters 9 and 10.

[6] RL Ackoff, Redesigning the Future: Systems Approach to Societal Problems (New York: John Wiley & Sons Inc, 1974).

[7] Full disclosure: I was an external examiner on Dr Marsden’s PhD awarded by Essex University for his work on this book.

Police threaten 12 year old over Facebook group

I hadn't seen this story until this morning, about a police officer questioning a 12 year old in a reportedly intimidating manner at school. What prompted Thames Valley Police to summon the lad, Nicky Wishart, from lessons and question him in front of his head of year without the knowledge of his parents?  Apparently he and his friends have been raising money cleaning cars etc. in an attempt to keep his local youth club open.  As part of this effort he set up a Facebook group calling for picket of David Cameron's constituency office to draw attention to the closure, (apparently due to happen early next year because of budget cuts).  Reportedly 130 people joined the facebook group.

Whichever senior police officer ordered/approved this action should be ashamed of themselves. Regardless of how sensitive (and many schools/community liaison officers are excellent at their job) or alledgedly intimidating the officer questioning young master Wishart was, being pulled out of lessons to be questioned by the police is likely to be a scary experience for any ordinary 12 year old. Have we really got to the position where "school boy" + "protest" = "terror alert"?  If so the surveillance state apparatus constructed by Nu Labour is more out of control than David Cameron feared when promising, prior to and immediately after being elected and as a central plank of the coalition agreement, that they would dismantle its worst excesses.  Mr Cameron, a 12 year old boy, in your own constituency, who would like you to know his youth club is being shut down, has been warned off by the police.  I suspect and hope you have the decency to do something about it.

Whatever we might think about the Net speech v establishment nature of the ongoing Wikileaks story, we have pretty serious problems in our own back yard on this front when 12 year olds become suspected terrorists through trying to keep community services going.

Update: Check out this more detailed analysis at lateforlawschool.

IP Institute Evil Twin Debate

The 4th annual evil twin debate at the University of Richmond's Intellectual Property Institute is now available on Youtube. Protagonists Jonathan Band and James Grimmelmann crossed swords on the Google book settlement.

NLA v Meltwater thoughts

I've now read the NLA v Meltwater judgement issued by Mrs Justice Proudman in the UK High Court last Friday.  Despite the bitterness, spin and mud-slinging on both sides of the dispute, which was so bad the judge explicitly referred to it in her decision (paragraph 23), the case seems like a bit of a storm in a teacup that really shouldn't need a court to sort it out. Having said that I can understand why, given the uncertain future they are facing, the newspaper industry chose this case in an attempt to put down a marker.

Meltwater provides an electronic press cuttings service, via email and/or a website, to PR agencies interested in being alerted when their clients are in the news. The newspapers and their licensing agency, the NLA, want Meltwater's clients to pay them as well as Meltwater for the service. Both Meltwater and the PR agencies trade organisation the Public Relations Consultations Association (PRCA) were sued. The court only had to decide whether the PR agencies receiving Meltwater's electronic press cuttings needed to pay for a web end user licence (WEUL) from the NLA i.e. did they need the newspapers' permission to receive Meltwater's services, irrespective of whether Meltwater had a licence to provide such services.

"6. The issue I have to determine is whether PRCA and its members ("the End Users") require a licence from the claimants in order lawfully to receive and use Meltwater News. Such a licence is known as a Web End-User Licence ("WEUL"). Although I have defined PRCA and its members as the End Users they are not necessarily the ultimate users of the service in the sense that members (at any rate those members who are not in-house consultants) obtain the information from Meltwater News for external clients."

Meltwater does not currently have a 'web database licence' (WDL) from the NLA to provide the press cuttings service.  The company's position is that current law does not require them to hold such a licence but even so they would still be prepared to pay for one on terms agreed as reasonable by the Copyright Tribunal.  The High Court was not required to rule on this issue. The details are currently the subject of a dispute between the parties at the Copyright Tribunal.

At this point the average 21st century reader could be forgiven for scratching their head and asking why pay Meltwater or the NLA when you could get equivalent functions for free via Google alerts, other search engine facilities, newsreaders and a range of other accessible web tools. (The judge suggests as much at paragraph 20). Well seemingly the aggregation service provided by Meltwater has significant value to their clients.

It's probably worth noting that the judgement does not say, as widely reported, that weblinks are protected by copyright law; or that aggregated links would infringe copyright without a licence.  But it does seem to suggest that the copying of a combination of

1. aggregated headlines provided as links and
2. text extracts from the associated articles

of the quality exhibited in this case - "elements which are the expression of the intellectual creation of the author" - would be infringement.  The decision also seems to suggest that basic use of the web does involve copying sufficient to trigger prima facie copyright infringement.  So a link does not attract copyright protection unless the text the link is of such originality as to exhibit "elements which are the expression of the intellectual creation of the author". But the act of clicking on the link thereby copying the linked page onto the end user's computer is prima facie copyright infringement. Likewise opening an email client to collect emails.  Questions then arise as to whether there are permissable defences and whether the process is transient and necessary for a technological process etc. but the implications of the decision seem to be that clicking is infringing, whatever justifiable subsequent defence might arise.

Contrast this with an old style photocopy/print based press cuttings service - the end user receiving a collection of press cuttings in the post would not be implicated in infringement (save possibly via inappropriate inducement) since the copying would have been done by the company sending the cuttings.

The judge describes the Meltwater service at paras 26 - 27 and the nature of the dispute in paras 45 - 55

1. Meltwater News will (subject to the constraints of length to which I later refer) include the following three items: 
 •    A hyperlink to each relevant article ("the Link"). The Link is a citation of the headline ("the headline") from the article. A click on the Link takes the customer through to the article as it appears on the Publisher's website. 

•    The opening words of the article after the headline ("the opening text"). 

•     An extract from the article ("the hit extract") showing the context in which the agent appears. This will reproduce the agent and some words immediately preceding and following it. 

1. Thus, subject to length constraints, the total text extracted from the article on the Publisher's website ("the text extract") comprises the headline, the opening text and the hit extract. Under the terms of the WDL, any text extracted from an article generated using scraping techniques must not exceed 256 characters, which it is common ground means 256 characters excluding spaces...
2. NLA contends that in the absence of consent the End Users of Meltwater's service will have infringed copyright in the Publishers' headlines, and/or the Publishers' articles and/or the Publishers' databases in three ways:
3. PRCA asserts that it has an overarching argument which defeats NLA's claim. It compares the service under consideration with the old press cuttings service in this way. A cuttings service requires the provider to take a licence for making copies of the articles for distribution to its customers. The recipients do not need a licence simply to receive the cuttings. Their licence is required to enable them to make further copies for internal or external purposes. Mr Silverleaf submitted that, on a proper analysis of the electronic process, the PRCA members merely receive Meltwater's services; there is only one copy inherent in the process, which is the copy sent by Meltwater to the End User. It is common ground that when one speaks of going to a website it is in fact the website which comes to the user. The submission is that whether access to the Meltwater Newsletter is by email or on Meltwater's website, there is in each case a single copy sent by Meltwater and accessed by the End User.
4. As a further plank in the argument, Mr Silverleaf submits that once Meltwater is licensed, it is a derogation from grant to require an End User to take a licence as well. Mr Howe counters by saying that this ignores the fact that the WDL's terms are limited to providing services to customers who themselves have a licence. He relies on s. 119 (3) of CDPA which provides that a scheme which has been referred to the Tribunal under s.119 shall remain in operation until proceedings on the reference are concluded. In other words, the provision limiting the licence to services provided to those who also are licensed is binding unless and until the Tribunal determines otherwise.
5. Mr Silverleaf ripostes with the argument that the terms of the licence are a matter of contract only. The issue is one of copyright law. Once Meltwater is licensed, it must be licensed to provide services; that necessarily imports the requirement that its customers must be entitled to receive them. To quote paragraph 12 (c) of PRCA's defence, the WDL
6. I agree with Mr Silverleaf to this extent only. If the End Users do not need a licence for what they do, then no contractual term can alter that position. It is a matter for the Tribunal about which I can and do make no binding finding. However I see the common sense of the argument that if the End Users do not need a licence it would deprive the WDL of all or most of its force if Meltwater could only supply services to licensed End Users.
7. However the issue is not to my mind one of derogation from grant or exhaustion. The outcome hinges on the answer to the very question which I am asked, namely whether the End Users need a separate licence for their activities in relation to Meltwater's services. It cannot be the answer to that question that a mere grant of a licence to Meltwater would obviate the need for a WEUL.
8. If the PRCA members are making copies of copyright material there can be no exhaustion. A licence to provide a service may import an implied licence to receive it, but it cannot import an implied licence to make further copies of licensed material. If the PRCA members are not making any copies, then there is no scope for a WEUL. In either case it becomes a matter for the Tribunal to decide whether it is unreasonable to grant a WDL only on terms that Meltwater supplies to customers with WEULs, although I think it is accepted by NLA that if the End Users do not require a licence NLA would have to fall back on its alternative claim for a larger fee from Meltwater calculated on a different basis.
9. In my judgment Mr Silverleaf's argument that there is only one copy faces the considerable difficulty that the defendants themselves admit (see paragraph 5.1 of the Defendants' response to the Claimants' Statement of Facts) that End Users make a copy of Meltwater News on their computers. I quote,
10. Again, it is expressly admitted in paragraph 10 of PRCA's amended defence that when an End User receives the Meltwater Newsletter by email or accesses it via the Meltwater website "a copy is made in the memory of the end user's machine." In paragraph 11 it is expressly admitted that "a copy of the Meltwater Newsletter is also made by the end user's machine when the [Meltwater Newsletter] materialise[s] on the end user's screen in order to be viewed."
11. Thus irrespective of whether or not End Users copy text extracts to their clients PRCA admits that receipt of Meltwater News involves copying by the End Users on their computers of material which has already been reproduced by Meltwater.
12. In these circumstances the derogation and exhaustion arguments fail.

In paragraphs 52 to 55 it seems as though the judge is missing the nature of the technology. Data is generated, processed, transmitted, copied and stored when do anything on the web or with a computer.  When we receive a printed copy of a press cutting in the post we do not copy anything.  To receive an electronic copy of the same press cutting over the internet, either in an email through opening a mail client or through clicking on a weblink, we have our computer copy the file or at least reconstruct it from the data packets that it has been split between and sent in over the Net. We cannot receive the file electronically without 'copying' it. Which raises the question again of whether copyright is now focussed on the wrong things, even (and especially) if the judge is right and receiving email or clicking on a weblink is prima facie copyright infringement.

Paragraphs 56 to 86 cover the question of whether the cuttings collected by Meltwater are copyright works.

"Are the text extracts or any part of them copyright works?
1. It is not disputed that copyright subsists in the full articles (as literary works) published in the Publishers' publications. One issue is whether a headline is, or is capable of being, a free-standing original literary work. Secondly, there is the question whether a text extract constitutes a 'substantial part' of the article as a literary work. I deal with these issues in turn."

In Paras 57 to 72 the judge relies on the ECJ Infopaq case (2009) to hold that headlines can have copyright protection.  She also discusses the Australian Fairfax case (2010) where it was decided that headlines as a general class could not attract copyright protection ("too trivial to be a literary work"), though some exceptional headlines might be worthy of copyright protection ("It may be that evidence directed to a particular headline, or a title of so extensive and of such a significant character, could be sufficient to warrant a finding of copyright protection"). The ECJ decision, however, trumps the Fairfax decision - as a matter of principle, Judge Proudman says, the Infopaq originality test "is now the only real test" - i.e. whether the headline/extract is an original  intellectual expression of the author rather than whether the it constitutes a substantial part of the author's work. The result in Infopaq was that 11 consecutive words could attract copyright protection.

My puzzlement with this part of the decision is not that Justice Proudman relies on Infopaq - that's a logical approach regardless of the problems with the Infopaq decision - it is in the leap from the reasoning of the Infopaq focus on "elements which are the expression of the intellectual creation of the author" to the conclusion that "headlines are capable of being literary works".  The judge had accepted witness submissions/statements to the effect that newspaper headlines are not the creations of the authors of the articles but teams of people or editors who work for the paper.  I can't therefore see how it can be concluded that the headline is an element which is the expression of the intellectual creation of the author, when the author has not written/created the headline; albeit that it is dreamed up by another creator/creators based on the substance of the article written by the original author.  Yet the judge uses a combination of Infopaq and the defence argument that the headline is part and parcel of the article rather than a copyrightable entity itself to conclude that headlines can be copyrighted.

"73. The next question is whether the text extracts constitute a substantial part of the articles so that s. 16(3) CDPA applies, as construed in conformity with the InfoSoc Directive."

Paras 73 to 86 say text extracts are protected by copyright and this is a more straightforward and defensible analysis based mainly on Infopaq and the NLA v Marks & Spencer case of 2001.

Para 87 to 92 deal with the database infringement issue:

1. As far as I can see all the acts of infringement relied on against PRCA's members relate to the contents of the articles. There is nothing suggesting infringement of the arrangement or structure of the website as a database. It is untenable on the case as presented by NLA to suggest that a text extract is a copy of a substantial part of the effort that went into the structure and arrangement of the articles within the website.
2. I therefore do not find that the End Users need a licence to avoid infringement of the Publishers' websites as databases. I say nothing which affects the position one way or the other in the case against Meltwater.

End users don't infringe NLA database rights.

Paras 93 to 100 deal with infringement by accessing the Publishers' website through Meltwater News

100. ... There is undoubtedly however a tension between (i) complaining that Meltwater's services result in a small click-through rate (ii) complaining that a direct click to the article skips the home page which contains the link to the terms and conditions and (iii) asserting that the End Users are commercial users who are not permitted to use the websites anyway.

Agreed.

Paras 101 to 105 suggest prima facie infringement in this case.

Prima facie infringement
1. When an End User receives an email containing Meltwater News, a copy is made on the End User's computer and remains there until deleted. Further, when the End User views Meltwater News via Meltwater's website on screen, a copy is made on that computer.
2. Therefore the End User makes copies of the headline and the text extract in those two situations and there is prima facie infringement.
3. When an End User clicks on a Link a copy of the article on the Publisher's website which appears on the website accessible via that Link is made on the End User's computer. It was (I believe) said by PRCA that owing to the factors considered under the previous heading there was an implied licence to copy articles directly from the Publishers' website. The argument on this head was, as I have said, a broad brush argument, and not presented as clearly as I would have liked. However it seems to me that in principle copying by an End User without a licence through a direct Link is more likely than not to infringe copyright.
4. An End User who uses the share function to forward a headline Link (and, a fortiori, an End User who simply forwards an email) to a client will make further copies and thus further infringe. Such forwarding will also be issuing a copy to the public under s. 18 CDPA.
5. As there is prima facie infringement I must therefore go on to consider the exceptions provided for in CDPA.

As I said above opening an email client or clicking on a weblink makes a copy.  That is the way the technology works.  We cannot get email or view webpages through browser without making a copy. Virtually everything we do with computers and the web involves making a copy.  If that triggers copyright law then we have a problem. At 104. end users who forward the Meltwater News are making further copies and I can understand the argument that this might be infringing; but receiving emails and clicking on weblinks?

Paras 106 to 112 deal with the question of whether the temporary copying exemption under article 5(1) of the copyright and related rights directive, Directive 2001/29, applies. The directive is referred to as the 'InfoSoc Directive' in the judgment. Basically the answer is no since it is designed to protect ISPs making temporary copies in transmission, not end users.

Temporary copying
1. First there is the exception contained in s. 28A CDPA. In Infopaq at [54] the ECJ set out the five requirements that must be fulfilled before the exception can apply. They are: (i) the act must be temporary, (ii) it must be transient or incidental, (iii) it must be an integral and essential part of the technological process, (iv) the sole purpose of the process must be to enable a transmission network between third parties by an intermediary or the lawful use of the work or protected subject matter; and (v) the act must have no independent economic significance. In addition, the ECJ also said at [61]-[64] that (vi) the act of making the temporary and transient copy must not exceed what is necessary for the proper completion of the technological process and (vii) the storage and deletion must not be dependent on human intervention; it must be automated.
2. PRCA allege that any acts incidental to browsing are comprised within the exception and it relies on recital (33) of the InfoSoc Directive which allows "acts which enable browsing as well as acts of caching to take place". However, the exception only applies (according to the express provisions of recital (33)) to the extent that the acts enabling browsing and caching meet the conditions previously set out in the recital. Those are the conditions referred to by the ECJ in Infopaq.

In the UK context Para 108 discusses Football Association Premier League Ltd v QC Leisure [2008] EWHC 1411(Ch) case where the "exception is concerned with transient copies which have no value in themselves and which do not prejudice the rights holder by interfering with the normal exploitation of the work."

1. Thus the temporary copies exception is solely concerned with incidental and intermediate copying so that any copy which is 'consumption of the work', whether temporary or not, requires the permission of the copyright holder. A person making a copy of a webpage on his computer screen will not have a defence under s. 28A CDPA simply because he has been browsing. He must first show that it was lawful for him to have made the copy. The copy is not part of the technological process; it is generated by his own volition. The whole point of the receipt and copying of Meltwater News is to enable the End User to receive and read it. Making the copy is not an essential and integral part of a technological process but the end which the process is designed to achieve. Storage of the copy and the duration of that storage are matters within the End User's control. It begs the question for decision whether making the copy is to enable a lawful use of the work. Moreover, making the copy does have an independent economic significance as the copy is the very product for which the End Users are paying Meltwater.
2. The exception cannot have been intended to legitimise all copies made in the course of browsing or users would be permitted to watch pirated films and listen to pirated music. The kind of circumstance where the defence may be available is where the purpose of the copying is to enable efficient transmission in a network between third parties by an intermediary, typically an internet service provider.
3. The exception cannot be used to render lawful activities which would otherwise be unlawful. On the contrary, the purpose of Articles 2 and 3 is to ensure that copyright is protected against all forms of electronic copying unless falling within the narrow scope of the exceptions in Article 5.
4. I therefore find that s. 28A CDPA (construed in accordance with Article 5 and recital (33) to the InfoSoc Directive) is inapplicable to permit the End Users to make copies with impunity.

Most of the rest of the decision is given over to an analysis of fair dealing under section 30 of the Copyright, Designs and Patents Act the context of the case (paras 113 to 147).  The defendents argue that the a broad interpretation of article 10 of the Berne Convention ("It shall be permissable to make quotations...") gives them a get out.  Justice Proudman rejects this.  Firstly because the InfoSoc Directive implements article 10 and can't be interpreted that loosely.  Secondly Article 10 of Berne has no direct effect in English law and can't displace the clear language of the English statute, section 30 of the Copyright, Designs and Patents Act. Thirdly the Court of Appeal has clearly, recently (within the last 12 years) and allegedly consistently interpreted s30 in a way which rejects the defendants' argument and such precedent is binding. (I'd argue that they haven't exactly been consistent in that the different preciding judges have come to the same answer through different routes and criticised each other's reasoning; but that's another issue).

Paragraphs 124 - 129 look at whether the defendants can argue the copying - receipt of email or visiting webpage - by PR agencies (Meltwater clients) can be considered copying for the purpose of criticism or review.  Not surprisingly the answer is no.  The Meltwater press cuttings are alerts to enable their clients to decide whether it is worth reading the original newspaper article (the judge also says this later at par 131) and not used for traditional critiscism or review.  Even if they could show criticism or review they would still have to show fair dealing i.e. the copying/use does not conflict with a normal exploitation of the work and not unreasonably prejudice the legitimate interests of the rightsholder.

The remainder of the fair dealing analysis is relatively straightforward, though I intersperse a handful of observations on the remaining paragraphs below.

Fair dealing

1. Even if the End Users were to establish that their use of the Publishers' copyright fell within criticism, review or reporting current events PRCA would have also to show that it constituted fair dealing. Article 5(5) of the InfoSoc directive provides that the exceptions:

"…shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder."

Similar provisions are contained in Article 9(2) of Berne, Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Article 10(2) of the World Intellectual Property Organisation Copyright Treaty and explanatory Statement (WIPO).

131. It seems to me that the only purpose in copying the text extracts is to enable the End User to choose whether or not to read the underlying articles. Without those extracts, he would have no option but to go to the articles themselves. But for the existence of Meltwater and similar businesses, End Users that wanted to monitor press coverage would have to do so by going directly to the Publishers' websites or by using a free alert service or search engine...

1. In NLA v. Marks & Spencer, Peter Gibson LJ, in deciding that there was no defence under s. 30(2) because there was no public reporting of a recent newsworthy event, said (at 271),

"I can see no public interest reason why the legislature should want to provide a defence to an infringement of copyright for the copying within a commercial organisation for commercial reasons of material subject to copyright, whereas a public interest can be discerned in the public reporting of newsworthy current events."

However, he went on to decide that if he was wrong about that (that is to say, if the dealing had been for the purpose of reporting current events) he would incline to the view that the dealing was fair dealing. In that connection he cited Aldous LJ Hyde Park Residence Limited v. Yelland [2001] Ch 143 and Pro Sieben.

Interestingly enough, though the judge can see no public interest in allowing commercial copying, this is not as clear cut as it is often assumed to be for reasons addressed in the Consumer Focus paper published earlier this week, The economic impact of consumer copyright exceptions. We make a point in that paper of distinguishing economic damage to rightsholders from consumer value.  And when commercial interests, through new technology, generate new markets not currently exploited by (or visible to) rightsholders, they are arguably acting in the public interest if rightsholders show no inclination to develop such markets; and at least in no less reprehensible a manner than the recording industry did in its early incarnations in the early 20th century, much to the chagrin of composers of the time.

The way to think about this is that people get more value out of music CDs if they are permitted to copy them to their MP3 players, something currently prohibited by UK copyright law, (though the law is widely ignored).  Music labels might prefer consumers to buy an extra electronic copy of the music for our digital players but that argument amounts to asking for more money because people have found a new way to enjoy music they have already paid for.  Likewise a furniture store does not suffer economic damage when someone buys a new flatscreen TV thereby getting more value out of their old sofa.  The specific example in the newspaper/music context that might demonstrate a public interest in allowing commercial copying is the MP3.com service, which though shut down by the US courts basically enabled anyone to play music they had legitimately purchased from any computer with an internet connection that they had access to.  The latest version of MP3.com, MP3tunes cloud music locker service is currently being sued by EMI for massive copyright infringement.

The whole area of consumer value and economic damage to rightholders is hopelessly misunderstood in the copyright debates; the public interest is largely ignored and needs to be put front and centre of the shaping of the future copyright landscape; whereas the whole issue of commercial interest is confused.

1. Chadwick LJ decided, to the contrary, that copying of articles within Marks & Spencer which had been supplied to it by a licensed cuttings agency was copying "done for the purposes of reporting a "current event" to those within the defendant's organisation who have a commercial need to be informed of it." However he went on to decide that the reporting of such current events for the defendant's internal purposes was not fair dealing. He said (at 280),

"…a dealing by a person with copyright work for his own commercial advantage- and to the actual or potential commercial disadvantage of the copyright owner- is not to be regarded as a fair dealing unless there is some overriding element of public advantage which justifies the subordination of the rights of the copyright owner. In my view, it was the recognition that the property right conferred on the copyright owner by the 1988 Act and its statutory predecessors -and which, subject to the provisions of the Act, the copyright owner is entitled to protect and exploit- should yield, in appropriate circumstances, to an overriding public interest in the promotion of research or private study, in the publication of comment or criticism, or in the reporting of current events which led Parliament to include the fair dealing provisions in the legislation. I can see no reason why Parliament should have intended, in the absence of some overriding element of public advantage, to permit one person to deal with copyright work, to his own commercial advantage and to the actual or potential commercial disadvantage of the copyright owner; and no reason why what would otherwise be an infringement of the rights of the owner of copyright in typographical arrangement should be permitted. Simply because the particular commercial advantage to be obtained was a more convenient (or less costly) means of disseminating reports of current events within a commercial organisation by the circulation of facsimile copies of press cuttings.

There is no suggestion, in the present case, that there is any element of public advantage in the use which the defendant makes of the press cuttings copied and circulated by its internal press offices. I would hold that the provisions of section 30 (2) of the 1988 Act have no application in the present case."

134. Mance LJ also held that the defendants would be in difficulty in relying upon the subsection because they were copying a significant part of an otherwise protected arrangement for essentially private commercial reasons.

1. Mr Silverleaf urged me to ignore these observations on the basis that the members of the Court based their decisions on different findings about s. 30 CDPA and that those findings were inherently contradictory. However, all the members of the Court of Appeal held the view in common that s. 30 (2) did not apply to commercial, non-public, user. To use Mr Howe's expression, although they did not all speak with one voice as to the reasoning, they were unanimous as to the result. When that decision is combined with the passages I have quoted from Ashdown, the Court of Appeal's decision about the scope and effect of s. 30 is, to put it at its lowest, very persuasive indeed, and I propose to adopt it.
2. However Mr Silverleaf further submitted that dealing was fair in this case in that there is no actual or potential commercial disadvantage to the Publishers in the End Users' receipt and use of Meltwater News. He contended throughout that the service provided by Meltwater provides a different service to that provided by the Publishers. The End Users pay for Meltwater's search and analytical services and not for access to the original content, which is obtained only by visiting the Publishers' websites themselves. Further, a directed search such as the End Users obtain from Meltwater will inevitably lead them to the Publishers' websites in circumstances where they would not otherwise access them. Meltwater's services thus complement the Publishers' websites, they do not compete with them.

1. Again, I find NLA's argument has an element of artificiality in that it says that as commercial users the End Users are not permitted to use the Publishers' websites anyway. However it seems to me that I should deal with the matter on an alternative basis.
2. If NLA is correct and there is no implied licence to access the website directly, then the End Users are being permitted, indeed encouraged, to do something via the Meltwater service that they ought not to do. It is hard to see how that is fair dealing.
3. If on the other hand the End Users are permitted to access the website directly, Mr Silverleaf's argument takes insufficient account of the fact that the text extracts contain direct quotations from the words of the articles (including the whole of the headline) for the express purpose of enabling the End Users to decide whether or not the articles themselves are worth reading.
4. I also have regard to the scale of the use which is being made of the work. Mr Glittenberg provided no direct statistical evidence about Meltwater's operation in terms of the number of text extracts supplied to its clients. However, extrapolating from the rough figures provided by Mr Ellis of PRCA, it would seem that a single End User could well receive (and copy) text extracts from some 50,000 articles per annum.

In a way, although it is a short throwaway comment buried behind a lot of involved and complex analysis, I get the impression that the scale of the operation - a single Meltwater client might get extracts from 50,000 articles a year - is what ultimately leads the judge to conclude there is end user infringement here. The scale is just too big for fair dealing.

1. It therefore seems to me that, even if I am wrong about the inapplicability of the basic provisions of s. 30 CDPA, there is no fair dealing in copying Meltwater News.

The use must be accompanied by sufficient acknowledgment
1. However, even if I am wrong about all the foregoing in relation to s. 30 CDPA, PRCA is faced with the requirement for sufficient acknowledgment as defined in s. 178 CDPA. The requirement to identify the author is an absolute one (see also Article 5 of the InfoSoc directive) unless the work is published anonymously.
2. It is common ground that unless the Publishers 'tag' the names of the authors of their articles the authors are not named in the Meltwater News text extracts.
3. It is asserted in the defence that the author is identified "to the extent that is technically possible" (see paragraph 26(d)) but what is meant is that Meltwater's software does not enable the author to be identified automatically. That is not the same thing at all. Mr Silverleaf went so far as to say that the Publishers can hardly complain about Meltwater's failure to identify the author if his name is not tagged in such a way as to enable Meltwater's systems to identify it automatically. However, inconvenience is not impossibility and the criticism of the Publishers in this regard is misplaced.
4. I think Mr Silverleaf realised the difficulty of his argument in the face of the uncompromising wording of s.178 CDPA. He therefore went on to contend that the Link provides a sufficient acknowledgement in the same way as a footnote in a critical review. He pointed out that s.30 (2) merely requires as a condition of fair dealing that the use be "accompanied by" a sufficient acknowledgment. Article 5 paragraphs 3(c) and (d) require an acknowledgment "including" the author's name, and s.178 defines sufficient acknowledgment as "identifying" the author.
5. I do not accept that argument either. The Link directs the End User to the original article. It is no better an acknowledgment than a citation of the title of a book coupled with an indication of where the book may be found, because unless the End User decides to go to the book, he will not be able to identify the author. This interpretation of identification of the author for the purposes of the definition of "sufficient acknowledgment" renders the requirement to identify the author virtually otiose.
6. This is, I accept, a technical reason for holding that the exception in s.30 CDPA does not apply but, technical or no, it seems to me that there is no answer to it.

I agree with Justice Proudman that the acknowledgement issue is more complicated than it seems.  There is little doubt that both the CDPA s178 and the InfoSoc Directive Article 5(3)(c) indicate an absolute requirement to identify the author.  But it would appear that both the newspapers and Meltwater would be implicated in failing to identify authors in certain instances.

Conclusion
1. In all the circumstances I find that without a licence from the Publishers there is infringement of the Publishers' copyright by the End Users in receiving and using Meltwater News.

So the PR agencies do need to pay the newspaper industry as well as Meltwater if they wish to avail themselves of Meltwater's electronic press cuttings service. Interesting case but as I suggested above, before spending longer thinking about it than I originally intended, something of a storm in a teacup.

Update: Meltwater is appealing the decision.
Update 2: IPKat characterises the case as the tip of the iceberg on media monitoring and copyright licences.

Consumer Focus Report

Consumer Focus has just published a report that Mark Rogers, Josh Tomalin and I wrote on the The economic impact of consumer copyright exceptions. Executive summary:

"Advances in the technology available to consumers have fundamentally altered the relationship between authors, rights-holders and consumers with regard to copyrighted creative works. The copyright system in the UK is undergoing a gradual process of reform to reflect this new reality.

In 2006, Andrew Gowers, a former editor of the Financial Times, presented a report into the state of intellectual property in the UK. Among his policy recommendations were three proposed changes to the copyright exceptions system which alter the way in which consumers can interact with copyrighted works. Gowers proposed introducing copyright exceptions for:

• Format shifting, for instance the transfer of a piece of music from a CD to an mp3 player. 

• Parody, caricature and pastiche. 

• Creative, transformative or derivative works. In our context, this definition includes user-generated content.

Our review examines the existing literature on the possible economic effects of these proposed changes to the copyright exceptions system, specifically whether the introduction of these proposed changes would cause economic damage to rights-holders. Whilst the economic issues surrounding copyright infringement via file-sharing and commercial „mash-ups‟ are interesting and important, our review is focused solely on copyright exceptions as they relate to non-commercial, consumer activities.

Investigating potential economic damage to rights-holders requires an analysis of how consumer copyright exemptions could affect the demand for the original creative work. The processes via which consumer copyright exceptions influence the demand curve for original creative work can be complicated. This said, a standard analysis of the demand for creative works must assume that consumers incorporate the benefit of copyright exceptions into their demand. A consumer‟s decision to purchase is based on the benefits of the product, including – in the case of creative work – the value of any copyright exemptions. In this sense, it can be argued that a creator automatically extracts value from copyright exceptions, since these directly influence the demand for the original creative work.

In our review, the two most commonly cited „economic‟ studies into the effects of Private Copying Remuneration (PCR) systems – Econlaw (2007) and Nathan Associates (2006) – do not provide any useful evidence that consumer copyright exceptions cause economic damage to rights-holders, or that a copyright levy is justified on these grounds.

The Econlaw study incorrectly equates economic damage with consumer value and does not contain a formal discussion of the demand for copyrighted works. The Nathan Associates study does not make a necessary distinction between 'damage to consumers and producers' and 'damage to society as a whole'. It likely overstates the economic damage caused by PCR. It also uses estimates for demand elasticities that do not come from formal economic analysis.

The economic evidence that format-shifting, parody and user-generated content cause any kind of economic damage to rights-holders simply does not exist. Arguments that support tighter copyright law, or support PCR systems, tend to confuse economic damage with consumer value. Any future analysis on this issue needs to investigate the conditions under which the proposed consumer copyright exceptions would have any impact on demand for creative work."

Freedom to tinker and my Panasonic DRM again

A few weeks ago I mentioned the saga of my Panasonic DMR EX75 DVD recorder with the dodgy DVD drive was eventually resolved. Long story short - after many comings and goings Panasonic supplied a new drive free of charge though earlier repairs diagnosis by the local Panasonic approved repair centre, J.F. Associates, amounted to just under £120.

Ok then the machine starts playing up again, this time refusing to record properly or even pick up the digital freeview signal. I followed up on the initial suspicion of a problem with digital TV transmitter in Oxford. But the website continued to say there are no problems with the TV signal.  The question was should I go back to J.F. Associates for another £58.75 diagnosis or take the lid off and have a quick look for any obvious problems in the innards myself?

Many years ago, when working with a great bunch of people in industry (now GKN then Lucas Aerospace), I spent quite a few years building and operating bespoke flight simulation rigs and testing aircraft parts to destruction with them (great fun). So spotting a dodgy resister or two shouldn't be beyond me and any further subtantial spending on this box of electronic tricks is pretty much geting beyond the point of diminishing returns.

Lifting the lid was fairly straightforward though the green PCB had to be disconnected and carefully removed too before finding the problem in the main board immediately below it.

As it turns out it wasn't a blown resister but a blown capacitor and sure enough a quick Google search throws up an extremely helpful thread from AVForums demonstrating a number of other people have had precisely the same problem. Over-stressed capacitors, it seems, are a common cause of failure.

I hope they won't mind me posting their images here (all three are from the forum). My capacitor wasn't quite as badly domed as the one in these photos but it was pretty clearly out of commission.

In any case I sourced a replacement capacitor from Charles Hyde & Son for £1.02 and since I didn't possess a soldering iron, not having wielded one in anger for some years, got one of those too. Farnell sold a usable alternative capacitor for £0.22 but needed a minimum order of £20.

Snipping off the busted capacitor and replacing it sorted out the signal problem and actually improved the quality of the freeview reception on the machine which had been deteriorating for some time. Just one extra thing to note on top of the extremely useful practical advice on the forum - if you're thinking of tackling something like this, be sure to snip the legs of the capacitor quite high up, so that you have a solid base to crimp the legs of the new capacitor to before soldering.

The latest problem with the Panasonic got me thinking about the freedom to tinker issue again. I could probably have replaced the DVD drive too if Pansonic had agreed to send one. Yet I suspect it would have been extremely unlikely that they would have done so free of charge without the official diagnosis from the approved service dealer, J.F Associates.  Another diagnosis of the freeview signal problem would have cost another £60 or so - and I'm certainly not knocking the very helpful folks at JF Associates for that, they have to make a living after all and I never would have had the DVD drive replaced without their help - but this time it was a pretty simple problem.  Yet as GavTech says in the AVForum:

"Unfortunately circuit analysis down to this level virtually does not happen any more in servicing such that I was shocked to discover yesterday, when I looked into this particular capacitor, that Panasonic do not even provide component values in the service manual"

I wonder how many serviceable pieces of electronic kit get binned each year due to busted replacable simple components?  One of the many costs of lock in (can't service yourself or you'll invalidate the warranty), commercial efficiency drives for economies of scale, commodification and de-skilling.

Now there is a postscript to the story of my apparently healthy again Panasonic DVD/HD recorder.  The freeview signal is fine and I can safely view and record to the hard drive again.   However the DRM has gots it's knickers in a twist and won't let the machine read my DVDs!  The machine with the brand new DVD drive doesn't approve of my DVDs.  Don't let me get started on DRM... but if anyone on the interweb has a simple quickfix I'd be happy to hear from you.

Jennifer Jenkins: Theft! A History of Music

Jennifer Jenkins on "Theft! A History of Music" is now available on YouTube. Highly recommended.



A realplayer version is available at the Duke University website.

Nina Paley: All Creative Work Is Derivative

Clever YouTube video by Nina Paley, All Creative Work Is Derivative. Thanks to Andres via Twitter for the pointer.

Further thoughts on net neutrality summit

Politicians like simple stories and simple solutions even when the issues are complex as with net neutrality.  I get it.  So they get told simple stories by lobbyists to get them to behave in a way that is beneficial to certain commercial interests. I get that. Complaints that the debates on net neutrality are dominated by extremes are legitimate.  But the logical leap then to the argument that net neutrality purists should be dismissed and commercial interests prevail - i.e. saying one end of the spectrum is right and the other wrong - is a leap too far.

Jean-Jacques Sahels of Skype and La Quadrature du net's Jérémie Zimmermann, for example, were very badly treated by the first afternoon session chair, Malcolm Harbour, who insisted in intervening in their contributions to the debate and disagreeing with them. At the same time Mr Harbour both explicitly and implicitly praised the contributions of those selling the anti net neutrality message. Mr Harbour's duty as an MEP is to look to the public interest and undermining those who are attempting to speaking up for the public interest should not be part of his remit.

Cisco and similar tech companies want to sell intelligent network kit.That's their business.  The more intelligent the kit the better the margins. Net neutrality doesn't aid their bottom line.  They have a right to argue for the need for "innovation at the core of the network" but it doesn't negate the fact that it is the innovation at the edges of the network that has transformed the world.

Telcos sell access to networks.  Controlling how people behave on those networks is in their interests particularly when they can charge more to provide access to the faster, broader, low latency services.  Net neutrality doesn't serve that end.  Of course if they are seen to be able to control traffic then their get out clause on liability for third party behaviour on their networks may be forfeited but that may be a balancing act they have to manage.

Similarly net neutrality gives mobile operators revenue issues.

Unfortunately when the pie is sliced up amongst the stakeholders:

Commercial users of the Net (content owners, retailers, search engines, cloud providers etc.)
Commercial facilitators of the Net (telcos, Ciscos etc.)
Ordinary nay extraordinary net users (general public)

The interests of the general public rarely come into the decision making other than in vague promises about keeping the public at the heart of the debate or platitudes on transparency or consumer empowerment. When there are vague commitments to the 'bests efforts internet' in addition to 'managed services' there is little doubt that the 'bests efforts internet' ultimately means the slow lane for people who are not prepared to or don't have the wherewithal to pay the necessary premium for the managed services.

Just one extra point about managed services.  So often one of the big excuses for saying we'll need special fast lanes is that it will be necessary for elearning.  As someone who has been deeply buried in the practice of so-called elearning at scale for over 15 years the best thing the Commission and Parliament could do for elearning is to gaurantee a universal superfast network infrastructure and make it open.  The thing that most interferes with elearning is congestion and poor quality of service at the ends of the network.  The thing that will fix that is big fat low latency dumb and neutral communications pipes.  How you cut the gordian knot on investment in and construction of such an infrastructure is a tough one. But that's what policymakers should be focussing on not on protecting existing commercial interests.  And maybe they need to be reading up on John Maynard Keynes and thinking about public and private investment in such an infrastructure.  Pay some people to dig holes, pay more people to fill them with fibre optic cables, pay more people to fill them in and pay even more to connect every home in Europe to the fastest open infrastructure in the world.  Connect all those people, spin the continent and watch the magic flow.