Tuesday, March 19, 2019

Response from MEP on copyright directive

I've had a response from Labour MEP, John Howarth to my email yesterday asking him to oppose the article 13 provisions in the proposed EU copyright directive.
"Dear Ray Corrigan
Thank you for your email regarding Copyright legislation.
Just to let you know before I was an MEP I ran a business in the creative sector developing copy, images, brands and content. When I am not doing my day job I play music - though I don’t get a lot of time to perform right now. I started my business career in the software development sector and have worked with aspects of the internet since the days of green screens. Not exactly typical for a politician, I agree, but you will forgive me if my experience informs my thinking.
For far too long people who work in the creative sector have been ripped off by the monopolistic internet platforms who place their work on line and use their content to make their services credible and to attract advertising revenue yet fail properly to reward the creators. Musicians and performers generally consider themselves lucky to do what they do but they also deserve fair reward for their work. The audience see a performance or hear a three minute song - but those things are built over years of learning a craft and endless hours practicing and rehearsing. Images can be created in a couple of hours but ideas and concepts take time and collaborative effort to develop. The internet has created new jobs and made some people very rich indeed but it has also destroyed value and exploited the skills and creativity of many others.
So as well as people who write to me demanding that we “save the internet” I also receive representations from the National Union of Journalists, the Musicians’ Union, publishers’ group’s, media organisations and creative industries representatives putting their side of the story.
Among all of this claims have been made about the proposed legislation that are wildly exaggerated or simply untrue. The implementation of updated copyright legislation will NOT end the internet as we know it. It will NOT constrain or unduly limit ‘free speech’, it will NOT place an unreasonable burden on the internet giants who have put significant time and effort into misleading people because they believe it threatens their super profits. It will not “outlaw memes”, it protects and defines the notion of satire and parody (which, by the way, were not in any way protected in the outdated copyright regimes that have applied till now). Exceptions set out in the legislation protect free academic enquiry, small businesses and bloggers.
I do not believe that the legislation in any way limits the ability of the open source software community to continue to trade on the business model it has operated for some time - in other words the ‘sharing economy’ will continue to do just fine. The monopolistic platforms benefit from this “free internet”, however the fact is nothing is “free” - someone always pays, whether through collection of personal data in exchange for access or by the exploitation of their work.
During the debate and before the first round of votes on the Copyright Directive I thought long and hard about how to approach the issue. While I have a degree of sympathy for the arguments about freedom of expression I am also concerned that the ‘free internet’ currently operates in an environment where the strong and powerful exert their influence without check and individuals are frequently bullied and victimised and the platform is exploited by peddlers of hate. As a local public representative I had to address several cases of unchecked systematic bullying over the internet and all of the evidence suggests that these problems had got worse, particularly in the public space and it is my firm view this is poisoning public discourse. I fail to see why the right to free expression should apply to people hiding behind cloaks of anonymity while others who express opinions in their own name are subjected to aggression in spaces into which the public have been invited. This concept of “freedom” is essentially a right-libertarian view and not one I share. The internet is the Wild West and, if it is not to become a tool of repression, must before long become civilised and subject to the rule of law where members of the public are able to participate on the same basis as any physical public space.
So I will be supporting the compromise reached between the Parliament and the Council on the Copyright Directive, because of the above and not least, because addressing the ‘value gap’ between platforms and creatives was part of Labour’s 2017 election manifesto in the UK.
Thank you again for contacting me.    
With best wishes,
John Howarth MEP On your side in Europe.www.johnhowarthmep.uk"
My further response to Mr Howarth was as follows:
"Dear John,
 Thanks for the considered response. You might be surprised to learn that I agree with your concerns about the disproportionate power of the big tech industry, particularly the big five, Google, Facebook, Amazon, Apple and Microsoft. You’ll no doubt be aware of the recommendations of the recent report of the House of Lords Communications Committee 
- https://www.parliament.uk/business/committees/committees-a-z/lords-select/communications-committee/news-parliament-2017/internet-regulation-report-publication/  
and the Disinformation and Fake News report of the Commons Digital Culture Media and Sport Select Committee -  
https://www.parliament.uk/business/committees/committees-a-z/commons-select/digital-culture-media-and-sport-committee/news/fake-news-report-published-17-19/  
which make well intentioned efforts to reign in the big technology monopolies. What you cannot do, however, is fix a disproportionate monopolies problem with automated upload filters, which is what the most recent version of Article 13 of the copyright directive that we are aware of attempts to do 
 https://juliareda.eu/wp-content/uploads/2019/02/Art_13_unofficial.pdf  
However, software is generations away from being able to make the kind of nuanced assessment of what might constitute copyright infringement that is required. If you get two copyright experts to assess whether something is infringing or not you’d get two (or more) different views in each case. What experts cannot agree on, you will never teach software to come to an appropriate conclusion on. Yet the problem with article 13 is not just automated prior restraint of speech, in the name of preventing copyright infringement but that the very companies it is professed to protect creators and the creative sector from will be the ones building and operating the filters. Article 13 will incentivise big tech to continue to develop, refine, implement and operate content filters – like YouTube’s Content ID system – and will add to their monopoly portfolios the realm of internet censors. It will also stifle innovation as small start-ups will not have the resources to develop or operate the required software filters.  
Though it’s not directly related to the copyright question, you raise the issue of the misuse of the internet for nefarious activity. The internet is already a tool of repression and oppression, aggression, bullying and hate mongers, shysters and criminals, unethical human behaviour of every variety. In that it is a mirror of human nature and we should not confuse the tool with our inherent psyche. It is also the greatest engine for mass communication and creativity in the history of the planet. As for poisoning public discourse, certain prominent members of your own profession and the popular mainstream media have a less than pristine record – it is and has long been virtually impossible to conduct an informed and nuanced public debate about any complex socioeconomic matter, without being vilified by someone taking words or phrases out of context or distorting what was said to pursue a particular agenda.  
On the question of the rule of law, is not true that activity on the internet is not subject to the rule of law. Just to start with, consider –  
The Public Order Act 1986 
The Copyright, Designs and Patents Act 1988 
The Malicious Communications Act 1998 
The Copyright and Related Rights Directive 2001 
The Communications Act 2003 
The Digital Economy Act 2010 
The Counter Terrorism and Security Act 2015 
The Investigatory Powers Act 2016 
The Digital Economy Act 2017  
S127 of the Communications Act 2003, s4 & 5 of the Public Order Act and s1 of the Malicious Communications Act have been used to convict someone of a criminal offence for making a joke on Twitter, in addition to prosecuting people spreading hate speech and racist comments for which the offenders were jailed.  
If your goal is genuinely an internet “subject to the rule of law where members of the public are able to participate on the same basis as any physical public space” then there is a fundamental principle of law that is the presumption against prior restraint of speech. Not all restrictions on free speech are a breach of the prior restraint doctrine – e.g. in relation to national security matters – but the long standing principle is that it is safer to impose penalties after publication. So automated upload filters, mandated by article 13 of the copyright directive, will not only hand the global censorship keys to the big tech monopolies but will undermine your stated intention in relation to the rule of law.  
Finally in relation to the ‘value gap’, it would be better described as a revenue gap. It’s been crafted as a value gap by public relations people attempting to influence legislators, like your good self, in order to get laws like article 13 passed that impose liabilities on internet intermediaries. What the commercial sector supporting article 13 are saying is they would like a bigger slice of the revenues currently going to big tech. Google already has licences with the music industry. Not a lot of the revenues arising from these flow to the individual creators. It has always been so. Prior to our information age, if I may borrow your own words, “for far too long people who work in the creative sector have been ripped off” by the oligopolistic creative commercial sectors. The fundamental problem of the imbalance in power will not be solved by copyright law and the revenue flow issue is more of a competition law problem. 
The creative industries are more economically buoyant than they have been in a generation and the EU is proposing to pass a law to leverage big tech into giving them more money. The collateral damage will be significant.  
It will damage the internet as we know it in the EU.  
It will mandate automated software filter prior restraint on speech, with the keys to those filters controlled by the very big tech monopolies it is proposed to reign in.  
It is irrelevant whether the intention is not to outlaw memes, to include exceptions for satire, parody, free academic enquiry, small businesses and bloggers – the big tech software filter operators will be police, judge, jury and censor.  
Like you, my experience informs my thinking.  I am an academic writer, teacher, manager, blogger with a long standing interest in technology policy. For years, Yahoo! search labelled my blog with a red warning triangle and a note in red font “Warning! Dangerous Download!” If this Article 13 filter had been in place the 4700+ articles I’ve written on that blog might never have seen the light of day.  
My son works occasionally for a small roving theatre company, a charity, producing videos and other multimedia works for them. Towards the end of last year one their videos was taken down by YouTube for alleged copyright infringement, despite the charity having paid for and cleared the licence for the background music used. He spent weeks getting YouTube to re-instate the video, including dealing with threats that the charity would have their account suspended permanently. That charity might not have an outlet on the world wide web at all, if the article 13 filters had been in place. 
 It’s a fallacy to believe the future monopolistic wielders of article 13 censorship keys – Google and the other big technology companies amongst them – will protect the interests of a single academic or small enterprise, other creators or the creative industries. They will not focus on anything other than their own economic interests.  
It is clear from your response that you are unlikely to change your mind on the copyright directive. I trust you won’t mind if I publish this correspondence on my blog in the hope of reaching a wider audience, before an article 13 software filter takes a dislike to my words and engages in some routine prior restraint.  
Regards,  
Ray Corrigan"
Update 22/3/'19:

Mr Howarth's  Political & Staff Manager Jim Robbins has kindly acknowledged my response and explained Brexit is pretty much getting in the way of everything at the moment; but that they will consider my perspective seriously.
Ray,

John has asked me to let you know that he really values your response and will consider it fully and speak to colleagues who have been involved with the debates on Article 13 and copyright.

He will respond fully in due course but, as you can imagine with the Brexit situation, things are pretty hectic here at the moment so I’m not quite sure when that will be.

Thanks for your email and the response.

Kind Regards,

Jim

Jim Robbins
Political & Staff Manager
Office of John Howarth MEP for South East England
Entirely understandable.
Many thanks Jim. I appreciate the acknowledgement. Good luck to John and those of you working with him in making a constructive contribution to finding a way out of the appalling Brexit chaos. Given the news from BMW recently that they will consider shutting down the Mini factory in Oxford, should Brexit go badly, you and John will be acutely aware of the deep concern it is causing in my area of the country. 
Regards,
Ray 

Monday, March 18, 2019

Note to MEPs on proposed copyright directive article 13

At the prompting of the Open Rights Group I have written to my MEPs asking them to vote against the proposed copyright directive coming before the European parliament next week.
UK Members of European Parliament (MEPs), for a short time longer, have the power to stand against digital censorship by opposing Article 13 of the proposed EU Copyright Directive. This provision of the directive would introduce automated systems to filter what can be seen and said online. In an age as dependent on information flows as ours is, information laws can have crucial consequences for markets and politics. Actions taken to protect copyright can reshape politics by giving both the responsibility and power to control information flows to a small number of key economic actors. Article 13 of the proposed copyright directive would completely change the politics of who controls information, and hence who controls the public narrative.

The subtlest argument in favour of the directive is that all creators should be remunerated for their work and any use of that work online. This is a commendable sentiment and an easier argument to make than asking for an additional slice of monopoly rent for copyright industries. However, the copyright directive itself says nothing directly about remunerating creators. Mostly it refers to “rightsholders”. Ironically, with the stated intention of wrestling control from the giant US technology behemoths and improving protections for creators and the creative industries, it will concentrate the power of algorithmic, automated censorship in the hands of those very same companies.

What is perhaps more informative is that many, many publishers, journalists, libraries, scientific & research institutions, universities, civil society human rights & media freedom groups, small independent publishers, consumers, tech cos and even the UN Special Rapporteuron Freedom of Opinion and Expression are strongly opposed to it.

I highly recommend the empirical research of the CREATe copyright consortium if you are looking for a more detailed and informed perspective on the copyright directive as a whole, available at


The latest incarnation of Article 13 of the Copyright in the digital single market directive, developed through the trialogue (sic) process, is a really bad idea and I would request, as my MEPs, that you vote against it when it comes before the European parliament next week.

Regards,

Ray Corrigan

Wednesday, January 16, 2019

EU member states attempt to circumvent CJEU rulings on data retention

One of the things the UK government is going to miss desperately, once Brexit deal is done, is the monumental amount of policy washing they have been able to drive though the EU in the past four plus decades. Not that this will prevent future UK governments from blaming the EU for whatever their prevailing set of woes happens to be.

Case in point.

The Court of  Justice of the EU has repeatedly ruled that blanket data retention is a breach of the  Charter of Fundamental rights of the EU, most notably in the Digital Rights Ireland case in April 2014 and the Tele2 case in December 2016.

Ever since, EU member state governments and various branches of EU institutions have been furiously trying to find ways to circumvent the Court's judgments and continue and expand data retention practices. They are very happy, thank you very much, with their current illegal data retention regimes.

The contortionist wordplay at large in some of the forums considering the issue is bordering on awe inspiring.

The current great hope of those working to maintain, enhance and expand data retention practices is that the planned new e-Privacy directive can be constructed in such a way as to pretend that data retention is not really data retention. In diplomatese they are working towards a more “favourable” environment for data retention than the current ePrivacy Directive of 2002. Article 15(1) of that directive when read in conjunction with the EU Charter of Fundamental Rights, rather irritatingly, for its supporters and according to the CJEU, prohibits blanket data retention. It requires data retention to be
"a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system"
Thank you to the excellent crew at EDRi for the update on the ongoing shenanigans on this today.

Government defeat on the EU withdrawal agreement

In the wake of the historic defeat of Theresa May's UK-EU withdrawal agreement in the House of Commons last night, my MP, Layla Moran contacted me:
"I am writing to you, and other residents who contacted me in opposition to Brexit, to let you know that I have just left the House of Commons after voting against Theresa May’s Brexit deal.
 The vote was an overwhelming, with 432 against and 202 MPs in favour.

432 MPs of all parties voting against Theresa May’s deal is far more than even my wildest predictions. It shows that there is no version of this Brexit deal that will get past Parliament. The only way to break the impasse is to hold a People’s Vote.

Following the vote, Liberal Democrat Deputy Leader Jo Swinson spoke in the House of Commons and urged the Prime Minister to let Parliament have a vote on putting the issue back to the people - so that the electorate can have the final say on Brexit, including the option to stay in the EU. This remains my top priority, and I will spend the next few days fighting harder than ever for a People’s Vote on the Brexit deal.

We are also looking at how we can extend or delay Article 50 to allow time for Parliament to assess and vote on alternative courses of action. We cannot allow the Government to run down the clock in an attempt to crash out of the EU in a ‘no deal’ scenario.

Tomorrow there will be a vote of no confidence in the Government. If this passes, it could lead to a General Election. In that event, I am ready to fight to make sure that people in Oxford West and Abingdon, and the whole country, have the final say on Brexit.

I’ll keep you updated as things develop.

With best wishes, Layla
Layla Moran MP Liberal Democrat, Oxford West and Abingdon"
My response:
Thanks for the update, Layla. 
I watched the vote live last night and it was indeed an historic defeat for the government.   
The government will survive the vote of confidence today, another wasted day of parliamentary time, so we’re left with – 
• No deal 
• Extension of article 50 
• Revocation of article 50 
• Parliament voting for some alternative Brexit deal that the EU 27 would accept
• Parliament voting to remain in the EU 
• A second referendum with no guarantee of a decisive outcome 
Mrs May is obsessed with immigration and appeasing her extreme right wingers, the right wing media and the DUP. Mr Corbyn is obsessed with triggering a general election which, even if he succeeded, he would not win. Both of them are determined to drive a UK exit from the EU for reasons of their own. 
Parliament is deadlocked and cannot agree on anything. 
The signs are not promising that a constructive way out of this mess can be found or enacted. Nevertheless unlikely alliances do occasionally arise in the midst of crises and, as Margaret Mead said, “Never doubt that a small group of thoughtful, committed, citizens can change the world. Indeed, it is the only thing that ever has.” I wish you and your fellow thoughtful, committed parliamentarians good luck in the days and weeks ahead. 
My preference, for what it is worth, would be for the UK to remain in the EU and drive reform of its myriad of deep flaws from within the (still) 28 member state alliance. 
Regards, 
Ray"