Another MEP responds on copyright term extension

I've had another response, to join the earlier ones, to my note to MEPs about the music copyright term extension approved by the EU parliament. This time from the Green Party's Keith Taylor, who opposes such an extension.

"Dear Ray,

Thank you for your email expressing your concern about the possible passing of the directive to extend the term of copyright protection for sound recordings from 50 to 70 years.

I share your concern on this matter, and have already signed the request for a renewed referral tabled by MEP Christian Engstrom to give the European Parliament a chance to reconsider its decision from April 2009 to extend the copyright term for musical recordings from 50 to 70 years. You can find further details of those who have signed up to this request here:  http://christianengstrom.wordpress.com/2011/04/21/names-of-the-40-meps-supporting-review-of-the-copyright-term-extension/ . Green MEPs actively oppose the proposed extension of the copyright term.

The final vote was 317 MEPs in favour of extending the copyright term with 178 against. There is, however support against the extension of the term, with four out of the seven main groups voting to reject the proposal to extend the term.

The proposal now moves forward to the Council of Ministers (made up of Member State Governments) where it is currently blocked by certain Member States (We understand the blocking minority is currently made up of Slovenia, Portugal, Austria, Netherlands, Sweden, Slovakia, Denmark, Belgium, Finland, Romania).

Furthermore, the widespread condemnation in the press, among stakeholders, and in the European Parliament demonstrates that the public is against extending the copyright term. This shows the strong feelings that Europe should create a balanced and fair copyright if it wants a system fit for purpose in the 21st century. Please be assured that I will continue to do all I can to work for a fair copyright system and to oppose the extension of the copyright term.

Many thanks again for raising this crucial issue with me and let me know if you have any further questions. For more information on my work in the European Parliament please do have a look at my website: http://www.keithtaylormep.org.uk/ .

Best wishes,

Keith Taylor

Office of Keith Taylor, Green MEP for SE England"

The story, the whole story and nothing but the story...?

It's interesting how the press interprets things.  They can't cover everything because no one has time for that, so they're forced to simplify, abbreviate, inform and simultaneously avoid distorting the truth.  The trouble is these requirements can be incompatible.  A small example arises out of the reports on the Mosley defeat at the European Court of Human Rights.  The Guardian says:

"The court ruling noted that Mosley had not managed to cite a "single jurisdiction in which a pre-notification requirement as such is imposed".
"In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it," the court said."

The Court did indeed says those things (at paragraph 124 for the legal geeks to check) but it followed up immediately, in the same paragraph, by saying:

"The Court recognises that a number of member States require the consent of the subject before private material is disclosed."

Then:

"However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned."

Or in full the paragraph says:

"124.  Third, the Court highlights the diversity of practice among member States as to how to balance the competing interests of respect for private life and freedom of expression (see paragraphs 62-63 above). Indeed the applicant has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned. Nor has the applicant pointed to any international instruments which require States to put in place a pre-notification requirement. Indeed, as the Court has noted above (see paragraph 119), the current system in the United Kingdom fully reflects the resolutions of the Parliamentary Assembly of the Council of Europe (see paragraphs 56-59 above). The Court therefore concludes that the respondent State’s margin of appreciation in the present case is a wide one."

The Guardian story, through selective quotation - and note that I'm not saying this is deliberate distortion, rather a function of the need to abbreviate - gives the impression that there is no pre-notification regime anywhere, since Mosley's legal team didn't cite one; and that the general consensus, therefore, is that no one wanted it.

Yet the paragraph in full tells a much more complicated story:

• Mosley didn't cite any examples of pre-notification
• This suggests such schemes are not in favour
• However there are some jurisdictions where prior consent is required before publication of private material
• The fact that such schemes do exist is not evidence of consensus that they should be implemented everywhere
• UK protections comply with the the resolutions of the Parliamentary Assembly of the Council of Europe, (implicity implying that this is the closest thing to an international consensus on the broad principles governing conflicts between privacy and free speech)
• The UK's "margin of appreciation" (ie freedom to regulate as it sees fit) should be wide and by implication not constrained by the specific facts of the Mosley case or his wish to have a prior notification regime

Now I recognise that the press has a limited amount of time and space (and readers' attention spans) to tell stories like the outcome of the Mosley case.  And actually the Guardian report I've cited does a reasonably good job of telling the story in a fair and balanced way, as does the BBC and others.  They have neither the time, resources or economic incentives to dissect each and every one of the 132 paragraphs of the decision in this kind of way. 

But the details are important and though journalists can't necessarily tell the story, the whole story and nothing but the story they do need to be careful not to distort it.  Unfortunately distorting di story (sorry!), by accident or design, is all too common.

Mosley loses at ECHR

Max Mosley has lost his case at the European Court of Human Rights. The Court's press release on the judgment is here (links to downloadable pdf).  The judgement in full is also available but since the links are dynamic the simplest way to find it is to type "Mosley" into the Court's HUDOC search portal.
(Update: Scribd has a copy of the decision now)

It's an interesting decision ultimately concluding that Mr Mosley's request for a prior notification regime, whereby subjects of press stories would be informed in advance of publication, would have a disproportionate chilling effect on freedom of the press.  It's not entirely bad news for the applicant Mr Mosley, however, as the Court ruled that his case was admissible, disagreeing with the UK government's argument that it was ill founded. They also agreed with Mr Justice Eady's decision in the UK High Court that there was no public interest in the News of the World's publication, in print, of stories about Mr Mosley's sex life, in addition to audio and video recordings of his activities and that on the facts of the case there was a clear invasion of privacy under Article 8 of the European Convention on Human Rights.

Nevertheless the key question they had to decide was whether a pre publication notification regime would be required to facilitate the balance between privacy (Article 8 of the Convention) and free speech (Article 10). And the answer was no.

Sensibly they say (paragraph 114) that sex stories do not attract the same protection as "reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society" but that the Court must be careful about imposing restraints on speech (paragraph 116); particularly so about prior restraint (para 117).

At paragraph 119 - 121 they explain that the UK remedy of post publication damages can be reasonably expected to act as a check on press behaviour and that the ECHR precedent dictates that damages provide an adequate remedy; also that in making the decision they need to be particularly aware of the wider implications:

"While the specific facts of the applicant’s case provide a backdrop to the Court’s consideration of this question, the implications of any pre-notification requirement are necessarily far wider. However meritorious the applicant’s own case may be, the Court must bear in mind the general nature of the duty called for. In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism. The Court recalls that the introduction of restrictions on the latter type of journalism requires careful scrutiny."

There follows an interesting discussion on the "margin of appreciation" - the freedom of the State to implement it's obligations under article 8 in any ways it sees fit. The wide diversity of practice amongst member states in the balancing of article 8 privacy and article 10 speech requirements of the convention means there is no general consensus in this area and therefore no general obligation to mandate a prior notification regime.

"124.  Third, the Court highlights the diversity of practice among member States as to how to balance the competing interests of respect for private life and freedom of expression (see paragraphs 62-63 above). Indeed the applicant has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned. Nor has the applicant pointed to any international instruments which require States to put in place a pre-notification requirement. Indeed, as the Court has noted above (see paragraph 119), the current system in the United Kingdom fully reflects the resolutions of the Parliamentary Assembly of the Council of Europe (see paragraphs 56-59 above). The Court therefore concludes that the respondent State’s margin of appreciation in the present case is a wide one."

Crucially, I think, on the question of the clarity and effectiveness of a pre-notification regime, (paras 125 - 129) they suggest that it can probably be defined clearly because the concept of "private life" is well understood (even by journalists!) but 

• it would have a de facto chilling effect on freedom of the press and 
• even if such a scheme was in place the News of the World would still have published their stories about Mr Mosley because they had unjustifiably convinced themselves that there was a Nazi element to the affair
• the effectiveness of a pre-notifcation scheme would depend on associated sanctions for breaching it -  punitive measures would create "a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention."

They conclude:

"iii.  Conclusion

130. As noted above, the conduct of the newspaper in the applicant’s case is open to severe criticism. Aside from publication of the articles detailing the applicant’s sexual activities, the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Despite the applicant’s efforts in a number of jurisdictions, these images are still available on the Internet. The Court can see no possible additional contribution made by the audiovisual material (see paragraph 115 above), which appears to have been included in the News of the World

131.  The Court, like the Parliamentary Assembly, recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media (see paragraph 57 above). The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination. In this regard the Court takes note of the recommendation of the Select Committee that the Editors’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception (see paragraph 53 above).

132.  However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention by the absence of such a requirement in domestic law.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 8 of the Convention."

It's a thoughtful, carefully constructed opinion and imho they came to the correct conclusions.  Although the decision is readable, for those less inclined to wade through the legalese the press release outlines all the key elements of the decision in slightly more accessible language. Recommended.

Digital privacy gordian knot

Living in the catchment area of a teaching hospital I get letters on a semi regular basis asking me or members of my family to participate in some medical research survey/trial. I always refuse on privacy grounds but occasionally send the form back asking them to take our details off their mailing lists (with little expectation that this will be done).  All modern technological, social, economic and organisational systems that process and store sensitive personal data are leaky, in many cases seriously so. HMRC 25 million debacle of 2007 and the Sony Playstation mess of recent weeks and others repeatedly remind us of this yet we see little progress on the privacy front.

One of the issues with improving these systems is that independent researchers with the capacity to help public and private sector organisations improve them rarely have direct access to the systems to the extent that sufficient robust empirical evidence can be generated and analysed with a view to expediting such improvements. Yet the granting of such researcher access fundamentally breaches the privacy of the individuals whose personal data is already compromised by virtue of the fact that it is held and processed on these leaky systems by these leaky organisations.

We already know a lot about improving these systems in ways that would respect privacy but don't implement these principles in practice.  So I'm pessimistic that even if we could cut the gordian knot of facilitating empirical research of real world systems without compromising the privacy of the data subjects on those systems it would necessarily help our progress towards a privacy enhanced future.  Privacy is complex and difficult especially faced with the forces undermining it:

• technology, 
• economics, 
• convenience and 
• bureaucracy.

The first law of technology is that if it can be done it will be done - basically fatal for personal privacy

Commercial sector (not just Facebook's and Tesco's) profits depend on undermining personal privacy

Our own addiction to convenience beats everything, including personal privacy

And the obsessive digital Taylorism of the public (and private) sector bureaucrat - the mindset that there is value only in that which can be measured and controlled - is also fatal for personal privacy.

Actually, faced with such forces the mythical, ethical, superhero researcher with the absolutely secure empirical research system, which enables said researcher to know everything about the commercial/public sector system under examination without knowing anything about the data subjects in that system, is something of a minor problem. Cheery thoughts for a Monday morning.