Monday, March 03, 2014

Submission to the EU copyright rules consultation

Draft submission to the EU copyright rules consultation below. Please excuse the formatting - I've been trying to use the odf form supplied by the Commission.

Update: this draft has now been submitted.

It's long and probably tedious in places and superficial in others but I'd still appreciate comments on any errors or omissions, from any suitably interested in copyright folks with an opportunity to scan it.

Public Consultation
on the review of the EU copyright rules
Please identify yourself:
Name:
Ray Corrigan
Senior Lecturer in Maths Computing & Technology, The Open University, UK
(This submission is in a personal capacity and not on behalf of my employer) …………………………………………………………………………………………………..
Type of respondent (Please underline the appropriate):
  • End user/consumer (e.g. internet user, reader, subscriber to music or audiovisual service, researcher, student)
for the purposes of this questionnaire normally referred to in questions as "end users/consumers"
  • Author
  • Other (Please explain):
Academic author and educator with interest in copyright


  1. Rights and the functioning of the Single Market

Why is it not possible to access many online content services from anywhere in Europe?

A. [The territorial scope of the rights involved in digital transmissions and the segmentation of the market through licensing agreements]

  1. [In particular if you are an end user/consumer:] Have you faced problems when trying to access online services in an EU Member State other than the one in which you live?
YES
Yes. Receiving Irish public broadcasts e.g. from RTE radio and television in the UK. I've also had problems getting Polish books in Ireland and the UK. The lack of access to content in their native language is a particular issue for the large number of migrants all across the EU.
  1. [In particular if you are a service provider:] Have you faced problems when seeking to provide online services across borders in the EU?
I'm not a service provider but my academic blog at http://b2fxxx.blogspot.co.uk/ is often censored or mis-categorised by software filters; sometimes making it awkward for people not just around the EU but also in the UK to access. Notably the Orange mobile network has in the past blocked my access to my own blog as have a number of other corporate software filters. For several years Yahoo! search tagged my blog with a “warning: dangerous downloads” label.
  1. [In particular if you are a right holder or a collective management organisation:] How often are you asked to grant multi-territorial licences? Please indicate, if possible, the number of requests per year and provide examples indicating the Member State, the sector and the type of content concerned.
[Open question]
N/A
  1. If you have identified problems in the answers to any of the questions above – what would be the best way to tackle them?
[Open question]
There are three main parties with a stake in the copyright pie:
  • Creators
  • Agents (and I use the term in the economic sense here to cover all the commercial entities involved in the copyright arena e.g. music, film, software, media companies, publishers etc.)
  • And society as a whole (also known as the general public or consumers)

Each of the three sets of stakeholders overlap to some degree and will have within them a massive range of different kinds of creators, businesses or consumers – all of which will have their own demands of the copyright system – but for simplicity sake I am just going to look at the three groups.
Whatever commercial, regulatory and technical systems are put in place to evolve copyright in a way that increases the cross-border availability of content services, they must take account of the diverse interests of all three sets of generic stakeholders. Balancing the needs of these diverse groups is a complex calculus, too often neglected. The historical result has been badly designed regulations, falsely promoted as protecting the interests of creators but in reality tailored to the desires of existing large commercial players in the content industries. The periodically repeated extension of copyright term is the classic example in the EU but particularly in the US.
Copyright is too often shaped as a tool for an elite group of powerful economic agents (industry players) to extract all the available commercial value from creative works, even when that means uses previously deemed legal are handed over to the control of these agents. Yet the function of copyright is not purely to provide economic rent for commercial intermediaries but also to provide an economic incentive to creators and to contribute to the welfare of society as a whole.
The problem is that there is very little empirical evidence available on copyright and intellectual property policy-making more generally to inform such regulation. And the studies that are available are often contradictory. So before we make any more rules written or shaped by the best funded industry lobbyists we must start gathering a sound empirical evidence base. The kind of work being done by the UK Research Council's CREATe initiative in partnership with the UK Intellectual Property Office, amongst others.1 Too often copyright regulations are shaped by what dominant incumbent industries want rather than the balanced interests of creators, economic agents and society as a whole, based on empirical evidence. You can argue about the relative importance of the three different sets of stakeholders but the needs of all three must be accounted for.


  1. [In particular if you are a right holder or a collective management organisation:] Are there reasons why, even in cases where you hold all the necessary rights for all the territories in question, you would still find it necessary or justified to impose territorial restrictions on a service provider (in order, for instance, to ensure that access to certain content is not possible in certain European countries)?
NO
  1. [In particular if you are e.g. a broadcaster or a service provider:] Are there reasons why, even in cases where you have acquired all the necessary rights for all the territories in question, you would still find it necessary or justified to impose territorial restrictions on the service recipient (in order for instance, to redirect the consumer to a different website than the one he is trying to access)?
NO
  1. Do you think that further measures (legislative or non-legislative, including market-led solutions) are needed at EU level to increase the cross-border availability of content services in the Single Market, while ensuring an adequate level of protection for right holders?
YES
See my answer to question 4 above and note the needs of the 3 sets of stakeholders – creators, economic agents and society as a whole.
As to what these measures should be, we are woefully short of the sound empirical evidence we need to figure this out and need vastly more investment in gathering, researching and analysing such evidence.
I would suggest that given the dominant position of large oligopolies controlling intellectual property rights based on territorial licensing of popular sports, for example, that the current regulatory regime, coupled with a purely market led approach, is unsatisfactory. It leads to a few winners – the richest sports stars and/teams and economic agents like BSkyB – and other stakeholders – sports people, other creators, other economic agents who would like to provide wider access to sports, and consumers, the public and society as a whole – losing out relatively speaking.
Consider the breaking down of territorial barriers to facilitate increased cross border availability of cross border content services or expanding copyright exceptions more generally. Consider the case of the sale of a new work, whether music, film, software or other creative work. The economic damage to creators or agents that own the copyright from an increase in copyright exceptions or easier cross-border availability must come from:
a) a reduction in revenue of the specific work, either now or in the future
and, if this is positive,
b) a ‘dynamic effect’ whereby the lost sales now affect the ability to generate new work in the future and thereby revenues in the future.

It is clear that only if a) occurs that b) can have validity. Also, criterion a) is solely concerned with how current and future revenue is influenced by copyright exceptions.
Some commentators define an additional type of ‘economic damage’ that
relates to previous sales of copyrighted goods . The argument here is that improvements in technology (e.g. the iPod) allow consumers to gain more value from their existing purchases of music, films, etc. However, labelling this as ‘economic damage’ is a shift away from
normal economic analysis and the normal functioning of markets. Whilst retrospective compensation is commonplace in the copyright system, for example with retrospective term extensions, the market system does not generally provide for retrospective compensation based on how technology has enabled new uses.

Some commentators also note that increasing copyright exceptions may not have only detrimental effects. For example, it is sometimes suggested that format-shifting may allow others to hear, see or play the work. This may, in turn, generate more revenue either now or in the future. Similarly, the wider exposure that format-shifting, parody or user-generated content creates may also increase sales. Increased sales can come from either primary sales of the work, or so-called secondary sales (such as tickets for live concerns, merchandise, etc). And in the case of cross-border access the societal value eg of migrants having access to copyrighted content from their home territories is incalculable.

In general, when a consumer buys a CD, or any product, we assume they include in their valuation an estimate of the entire benefits derived from the CD. This includes listening to the CD now, next week and next year, as well as listening to it with friends and family, format-shifting (if legal) and benefits from new technologies in the future.

At any point in time, any specific product will receive a wide range of ‘valuations’, as consumers are heterogeneous. Economists summarise these valuations into a demand curve, as for a specific product. The market price is determined by a variety of factors, including the
competition in the market for the specific product (e.g. the price of similar music or software).
A key result of the standard analysis of demand is that the value of copyright exceptions and extra consumer territorial access rights will be embedded into a demand curve. Hence, there is an argument that agents and creators automatically extract value from copyright exceptions and cross border rights. Similarly, if the extent of exceptions or cross border rights is changed then the demand curve will automatically shift to reflect these. Prices go up if copyright exceptions are increased (as consumers are assumed to gain, hence their valuations increase), and down if exceptions are reduced.2



B. Is there a need for more clarity as regards the scope of what needs to be authorised (or not) in digital transmissions?

1. The act of “making available”
  1. Is the scope of the “making available” right in cross-border situations – i.e. when content is disseminated across borders – sufficiently clear?
Yes and no but mostly no. Copyright laws are ridiculously complicated and inaccessible to ordinary mortals. The right may be clear to copyright experts but not to ordinary people.
  1. [In particular if you are a right holder:] Could a clarification of the territorial scope of the “making available” right have an effect on the recognition of your rights (e.g. whether you are considered to be an author or not, whether you are considered to have transferred your rights or not), on your remuneration, or on the enforcement of rights (including the availability of injunctive relief3)?
I don't know. I don't have the empirical evidence to answer such a question.

2. Two rights involved in a single act of exploitation

  1. [In particular if you a service provider or a right holder:] Does the application of two rights to a single act of economic exploitation in the online environment (e.g. a download) create problems for you?
NO
I don't think this should a major issue though some large copyright holders have been working on ways to extract extra economic rent from the issue since the internet hit public consciousness in the mid 1990s (and probably before).4 There is indeed the complication associated with the two rights being held by different agents – a hint of the unnecessary complexity of copyright law. However, the default assumption that any potential new revenues flowing from technological or other innovations should automatically flow to the copyright holder is flawed.
Suppose someone buys a sofa and subsequently a large flat screen TV that enhances the experience of sitting on the sofa. The furniture seller is not entitled to extra revenue because their customer, as a result of a separate purchase is now deriving extra benefit from their sofa.
The unstated assumption that there is necessarily economic harm to copyright holders when new technology enables new revenue flows is false.

3. Linking and browsing

  1. Should the provision of a hyperlink leading to a work or other subject matter protected under copyright, either in general or under specific circumstances, be subject to the authorisation of the rightholder?
NO – Categorically not. Rights holders should have no right to veto links. Such a restriction on linking would break the internet for ordinary users, for businesses, governments, NGOs, educational establishments; and would be largely unworkable in practice.
As the consultation notes, a number hyperlinks cases have been referred to the CJEU. As a hyperlink is just a pointer to where content can be found, like a reference in an index, “the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’”, as noted in the recent Svensson case (C-466 / 12).
Rights holders would continue to have access to redress through the courts in relation to the large scale systematic provision of links designed to lead to infringing content. There were a number of UK cases in this area in 2013.

  1. Should the viewing of a web-page where this implies the temporary reproduction of a work or other subject matter protected under copyright on the screen and in the cache memory of the user’s computer, either in general or under specific circumstances, be subject to the authorisation of the rightholder?
NO – Categorically not. This temporary reproduction is a function of the technology of browsing the world wide web. The applicability of the temporary copying exception to internet browsing is being considered by the CJEU but it would seem sensible given the nature of the technology that temporary reproduction during browsing should fall within the exception.
It is, however, critical to be clear about this. As recently as the 1990s large entertainment industries attempted, in the US, to leverage this function of the technology and copyright's exclusive right to reproduce copies of protected works, to increase their control of the market and revenues for copyrighted works. They argued that any part of a copyright work being copied even temporarily in a computer's random access memory was an unauthorised reproduction. The US copyright law (from the 1970s) allowed no exceptions for internet related processes or uses. So industry lobbyists claimed they should be entitled to charge for all these extra digital copies and part copies that were a side effect of the way digital technology worked. And they succeeded in getting the Digital Millenium Copyright Act passed in 1998, largely based on this pay-per-view/pay-per-copy/pay-per-use view of the world. The EU followed on with our very own version of the DMCA and it's anti circumvention provisions in the copyright and related rights directive of 2001, 3 years later.
Yet think about this from a different perspective. If every time an electronic version of a copyrighted work appears in temporary cache or random access memory of a computer it constitutes the making of an chargeable copy, we are providing copyright holders with substantial control of even the consumption of their works; not just the copying, reproduction and other traditional rights associated with copyright.
It would be anathema to the public interest to provide such additional rights to copyright holder when there are vastly less socially damaging options available such as putting their works behind a pay wall. Such regulations would additionally be unworkable in practice and bring the law into disrepute.
4. Download to own digital content
  1. [In particular if you are an end user/consumer:] Have you faced restrictions when trying to resell digital files that you have purchased (e.g. mp3 file, e-book)?
YES
It's not just a question of resale but transfer of legally acquired content between my own devices and/or from old failing equipment to newer replacements.
  1. [In particular if you are a right holder or a service provider:] What would be the consequences of providing a legal framework enabling the resale of previously purchased digital content? Please specify per market (type of content) concerned.
[Open question]
Economics suggests secondary market sales can be accounted for when setting initial sales price. It's more complicated with digital content transfers due to the “forward and delete” point mentioned by the consultation. I'm sure the Research Council UK's CREATe initiative and numerous other IP centres round the EU would be happy to be commissioned to do some research on this. The UK's Intellectual Property Office has a team of economists who could also probably offer some advice.

C. Registration of works and other subject matter – is it a good idea?

  1. Would the creation of a registration system at EU level help in the identification and licensing of works and other subject matter?
YES
On balance a voluntary registration system could be beneficial for the long term identification of copyright ownership history and facilitation of licensing. See the UK Hargreaves Review recommendations on a copyright hub. A large reduction in the term of copyright would ease the potential need for such a registration system however.


  1. What would be the possible advantages of such a system?
[Open question]
Clarity of copyright control and easier facilitation of licensing.
  1. What would be the possible disadvantages of such a system?
[Open question]
Costly and potentially cumbersome; plus open to control by the more powerful economic actors.
  1. What incentives for registration by rightholders could be envisaged?
[Open question]
Entirely dependent on the specific systems, processes and infrastructure used to facilitate registration.

D. How to improve the use and interoperability of identifiers

  1. What should be the role of the EU in promoting the adoption of identifiers in the content sector, and in promoting the development and interoperability of rights ownership and permissions databases?
[Open question]
I'm not sure the EU has a role here other than to encourage the adoption of open standards and interoperability. It's also likely the EU can influence this more through the purchasing processes of the EU's institutions – economic influence – rather than through regulatory approaches.


E. Term of protection – is it appropriate?

  1. Are the current terms of copyright protection still appropriate in the digital environment?
NO
No. The current terms are too long even if we didn't live in a digital world. Patent terms are generally 20 years. How have we arrived at a situation where copyright terms are the life of the author plus 50 years (Berne) or 70 years (EU, US and others) or 100 years (Mexico) or 70 years after first publication of music (EU)?
In the case of long copyright terms our three sets of stakeholders -
  • Creators
  • Economic agents
  • Society
mostly lose. The only winners are the few wealthy creators and economic agents with the small number of copyrighted works with long commercially successful lives; which would otherwise fall into the public domain many decades earlier.
Only about 4% of copyright works older than 20 years are commercially available, so 96% remain locked up for the rest of the creator's life plus 70 years even though no one is selling them. The public therefore lose out, as do other creators and economic agents who would like to build on or commercially exploit those works (and the 4%).
Systemically long copyright terms are a bad deal for most stakeholders. In recent years, the EU, as the consultation notes, increased the term of copyright in sound recordings from 50 to 70 years. If we do some basic discounted cash flow calculations, we discover the real present value factor of the increase in economic incentive of a term extension of 20 years is surprisingly small. The present value (therefore specific differential economic incentive at the time of recording) of the extra 20 years on top of the original 50 years would be:
1/(1+r)51 + 1/(1+r)52 + … + 1/(1+r)70
- Where r is the equivalent of a standard rate of inflation (expressed as a decimal) for the 20 years. In fact with the help of some neat mathematical manipulation we can derive a formula for the present value of a constant income (C) for a particular copyright term:
Present value = C(1-e-rt)/r
Where e is Euler’s number, a universal mathematical constant (and the base number for natural logarithms)
r is the percentage annual discount rate expressed as a decimal,
and t is the copyright term in years.
So for a term t of 50 years and a discount rate of 10%, the present value of an income stream C of £1000 per annum would be £9933, approximately. That sounds like a decent income. Now compare it with the present value of an equivalent yearly income if the copyright term were 70 years (just change the t in the calculation from 50 to 70), which turns out to be £9991.
The extra present value of the 20 year term extension was just £58 or 0.6%.
In fact if the copyright term were to last forever, the present value of the same annual income stream would be £10,000. (Present value of an infinite income flow at a constant discount rate =C/r, where C is the annual income and r the discount rate)
A 70 year term of copyright is worth 99.9%, in present value terms, of the value of a copyright that lasted forever. In economic terms current terms of copyright are effectively infinite.
A copyright term that lasts the life of the creator plus 70 years makes no economic sense whatsoever, whether we live in a digital age or not.
We can repeat these calculations for different discount rates and income streams and demonstrate that the differential in real present value terms or the economic incentive provided by long copyright terms provides no effective incentive to creators.5
As Thomas Babbington Macaulay said in 1841 in the House of Commons debate on copyright:
I will take an example. Dr Johnson died fifty-six years ago. If the law were what my honourable and learned friend wishes to make it, somebody would now have the monopoly of Dr Johnson's works. Who that somebody would be it is impossible to say; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the doctor's servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that a hundred years ago, when he was writing our debates for the Gentleman's Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook's shop underground. Considered as a reward to him, the difference between a twenty years' and sixty years' term of posthumous copyright would have been nothing or next to nothing. But is the difference nothing to us? I can buy Rasselas for sixpence; I might have had to give five shillings for it. I can buy the Dictionary, the entire genuine Dictionary, for two guineas, perhaps for less; I might have had to give five or six guineas for it. Do I grudge this to a man like Dr Johnson? Not at all. Show me that the prospect of this boon roused him to any vigorous effort, or sustained his spirits under depressing circumstances, and I am quite willing to pay the price of such an object, heavy as that price is. But what I do complain of is that my circumstances are to be worse, and Johnson's none the better; that I am to give five pounds for what to him was not worth a farthing.


So clearly we need to be extremely sceptical of arguments declaring that the only way intellectual property owners (creators and/or agents) are going to derive an appropriate income from their creative assets is by retaining or extending already excessively long copyright terms.
Copyright terms are already demonstrably excessive and I say that as a published author, as much as an academic, reader or plain member of the public. I would further suggest the need for detailed empirical research to provide a sound evidence to inform policy makers (worldwide, not just in the EU) in setting a more appropriate copyright term. This may lead as now to terms being tailored to the particular type of copyrighted work but in all cases the simple economics suggest these terms would be significantly shorter.


    III. Limitations and exceptions in the Single Market
  1. Are there problems arising from the fact that most limitations and exceptions provided in the EU copyright directives are optional for the Member States?
YES
Hugenholtz, P. B. and Senftleben, Martin, Fair Use in Europe: In Search of Flexibilities (November 14, 2011). http://ssrn.com/abstract=1959554 explain this better than I can:
There appear to be good reasons and ample opportunity to (re)introduce a measure of flexibility in the national copyright systems of Europe. The need for more openness in copyright law is almost self-evident in this information society of highly dynamic and unpredictable change. A historic perspective also suggests that copyright law, particularly in the civil law jurisdictions of Europe, has lost much of its flexibility in the course of the past century. By contrast, with the accelerating pace of technological change in the 21st Century, and in view of the complex process of law making in the EU, the need for flexible copyright norms both at the EU and the national level is now greater than ever.

Against this background, the authors argue that the EU copyright acquis leaves considerably more room for flexibilities than its closed list of permitted limitations and exceptions suggests. In the first place, the enumerated provisions are in many cases categorically worded prototypes rather than precisely circumscribed exceptions, thus leaving the Member States broad margins of implementation. In the second place, the EU acquis leaves ample unregulated space with regard to the right of adaptation that has so far remained largely unharmonized. A Member State desiring to take full advantage of all policy space available under the Information Society Directive, might achieve this by literally transposing the Directive’s entire catalogue of exception prototypes into national law. In combination with the three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. Less ambitious Member States seeking to enhance flexibility while keeping its existing structure of limitations and exceptions largely intact, can explore the policy space left by distinct exception prototypes. In addition, the unharmonized status of the adaptation right would leave Member States free to provide for limitations and exceptions permitting, for example, fair transformative uses in the context of producing and disseminating user-generated content.


  1. Should some/all of the exceptions be made mandatory and, if so, is there a need for a higher level of harmonisation of such exceptions?
YES
    23. Should any new limitations and exceptions be added to or removed from the existing catalogue? Please explain by referring to specific cases.
[Open question]
From my work with Mark Rogers and Joshua Tomalin in 2010 (Rogers, Mark; Corrigan, Ray and Tomalin, Joshua (2010). The economic impact of consumer copyright
exceptions: a literature review. Consumer Focus, London, UK.) http://oro.open.ac.uk/25604/5/The_economics_of_consumer_copyright_exceptions_final.pdf:

Investigating potential economic damage to rights-holders requires an
analysis of how consumer copyright exception 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 exception. 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.
The complications associated with the application of limitations and exceptions could be greatly eased by the universal and drastic reduction in copyright terms. In this innovative age, the need for creators and inventors to have to consult a lawyer to get a definitive opinion on whether their work is permitted by existing rights holders or limitations and exceptions built into a very complex law, is somewhat anomalous.

That said I wonder whether there should be a wider recognition perhaps formal sanctioning of non commercial sharing of copies of copyrighted works. By non commercial I'm referring to that proportion the widespread sharing that currently occurs that would not happen if those participating were obliged to pay-per-copy. So e.g. teens or those on low incomes who might not have access to the economic means to pay for such material; or sharers getting access to works no longer commercially available; or those sharing materials released under open or creative commons licences. So in terms of the three generic stakeholders it would be economically neutral for creators and agents but nevertheless have a positive effect on the welfare of society.
    24. Independently from the questions above, is there a need to provide for a greater degree of flexibility in the EU regulatory framework for limitations and exceptions?
That's a complicated question that requires robust empirical study and again the question would be greatly eased by a significant reduction in copyright terms.
    25. If yes, what would be the best approach to provide for flexibility? (e.g. interpretation by national courts and the ECJ, periodic revisions of the directives, interpretations by the Commission, built-in flexibility, e.g. in the form of a fair-use or fair dealing provision / open norm, etc.)? Please explain indicating what would be the relative advantages and disadvantages of such an approach as well as its possible effects on the functioning of the Internal Market.
[Open question]
There's no “best approach” but there could be a better informed approach if the EU, member state governments and industry were to commit to funding a great deal more empirical research.
    26. Does the territoriality of limitations and exceptions, in your experience, constitute a problem?
YES
    27. In the event that limitations and exceptions established at national level were to have cross-border effect, how should the question of “fair compensation” be addressed, when such compensation is part of the exception? (e.g. who pays whom, where?)
[Open question]
This is another question requiring empirical research.

A. Access to content in libraries and archives

1. Preservation and archiving
    28. (a) [In particular if you are an institutional user:] Have you experienced specific problems when trying to use an exception to preserve and archive specific works or other subject matter in your collection?
(b) [In particular if you are a right holder:] Have you experienced problems with the use by libraries, educational establishments, museum or archives of the preservation exception?
YES


    29. If there are problems, how would they best be solved?
[Open question]
Libraries and archives have long been under threat in from UK government funding cuts and in the face of the more powerful economic agents' constant drive to increase their industries' control of copyrighted content. Carefully-defined preservation exceptions have clear benefits, enabling libraries to maintain and facilitate access to our cultural heritage for the enjoyment of present and future generations. The cultural and societal welfare associated with this work is incalculable.
    30. If your view is that a legislative solution is needed, what would be its main elements? Which activities of the beneficiary institutions should be covered and under which conditions?
[Open question]
Library experts are better placed to answer this question but it is another area where sound empirical research is required. Libraries, museums and archives serve the public good and require exceptional protections legislative, political and economic.
    31. If your view is that a different solution is needed, what would it be?
[Open question]
Libraries and archives are exceptionally important and require special protections even more so in our digital age.
In The Public Domain: Enclosing the Commons of the Mind, James Boyle eloquently and passionately argues that our culture, science and democracy depend on a delicate balance between ideas that are controlled by intellectual property and those that are freely available in the public domain. He tells a terrific series of engaging stories about, for example, why the building blocks of synthetic biology, business methods, pairs of musical notes are now owned, why blues, jazz or soul music would probably be illegal if it were invented today, why most of 20th century culture is legally unavailable to us, and why the World Wide Web would, most likely, have been killed at birth if lawyers, commerce and policy-makers could have reacted quickly enough.

This all adds up to what Boyle calls a 'second enclosure movement' – except that on this occasion we’re not facing an enclosure of the grassy commons of olde Englande but rather an enclosure of the 'commons of the mind' and a serious erosion of the public domain, a state of affairs future generations will rightly condemn us for allowing to happen; at the very point that we have the technical and economic capacity to facilitate universal access to recorded human knowledge, a digital library of Alexandria.

The book, destined to become the standard text in the area, also serves as the Silent Spring of the information society – a clarion call to understand and protect the public domain through scholarship, communication, articulation and recognition of shared interests and values that allow that notion - the public domain - to come into public consciousness and a diverse ecology of activism to support all this. A kind of "environmentalism for information" and the public domain.
Libraries, museums and archives are at the coalface of this environmentalism for information and the public domain and require, in addition to legal protections, public substantive or at the very least sufficient public funding to enable them to engage effectively in such work.

2. Off-premises access to library collections

    32. (a) [In particular if you are an institutional user:] Have you experienced specific problems when trying to negotiate agreements with rights holders that enable you to provide remote access, including across borders, to your collections (or parts thereof) for purposes of research and private study?
(b) [In particular if you are an end user/consumer:] Have you experienced specific problems when trying to consult, including across borders, works and other subject-matter held in the collections of institutions such as universities and national libraries when you are not on the premises of the institutions in question?
(c) [In particular if you are a right holder:] Have you negotiated agreements with institutional users that enable those institutions to provide remote access, including across borders, to the works or other subject-matter in their collections, for purposes of research and private study?
[Open question]
I have often experienced problems when trying to consult works when not on the premises or in the territory of the institution in question.

    33. If there are problems, how would they best be solved?
[Open question]
Through an open universally deployed high speed neutral technical infrastructure and a permissive intellectual property regime for libraries and archives.

    34. If your view is that a legislative solution is needed, what would be its main elements? Which activities of the beneficiary institutions should be covered and under which conditions?
[Open question]
Special copyright exceptions for non-commercial use of library and archive materials.

    35. If your view is that a different solution is needed, what would it be?
[Open question]
Deployment of investment to enable construction of technical infrastructure to facilitate digital archiving and connecting all libraries and archives to the backbone of a neutral internet.

3. E – lending

    36. (a) [In particular if you are a library:] Have you experienced specific problems when trying to negotiate agreements to enable the electronic lending (e-lending), including across borders, of books or other materials held in your collection?
(b) [In particular if you are an end user/consumer:] Have you experienced specific problems when trying to borrow books or other materials electronically (e-lending), including across borders, from institutions such as public libraries?
(c) [In particular if you are a right holder:] Have you negotiated agreements with libraries to enable them to lend books or other materials electronically, including across borders?
YES

    37. If there are problems, how would they best be solved?
[Open question]
In the first instance revoke the legal instruments which make the circumvention of and communication of the weaknesses in digital rights management (DRM) technologies unlawful.
DRM largely doesn't fulfil it's industry-stated intended purpose of protecting rights-holders rights but does undermine the security of the whole population of end users. Cory Doctorow explained this nicely in a recent article in the Guardian6:
“DRM is designed on the presumption that users don't want it, and if they could turn it off, they would. You only need DRM to stop users from doing things they're trying to do and want to do. If the thing the DRM restricts is something no one wants to do anyway, you don't need the DRM. You don't need a lock on a door that no one ever wants to open.
DRM assumes that the computer's owner is its adversary. For DRM to work, there has to be no obvious way to remove, interrupt or fool it. For DRM to work, it has to reside in a computer whose operating system is designed to obfuscate some of its files and processes: to deliberately hoodwink the computer's owner about what the computer is doing. If you ask your computer to list all the running programs, it has to hide the DRM program from you. If you ask it to show you the files, it has to hide the DRM files from you. Anything less and you, as the computer's owner, would kill the program and delete its associated files at the first sign of trouble.
An increase in the security of the companies you buy your media from means a decrease in your own security. When your computer is designed to treat you as an untrusted party, you are at serious risk: anyone who can put malicious software on your computer has only to take advantage of your computer's intentional capacity to disguise its operation from you in order to make it much harder for you to know when and how you've been compromised.”
It is also important in relation to e-lending to encourage the development of neutral open standards and interoperability.


    38. [In particular if you are an institutional user:] What differences do you see in the management of physical and online collections, including providing access to your subscribers? What problems have you encountered?
[Open question]
I have no answer to this question.
    39. [In particular if you are a right holder:] What difference do you see between libraries’ traditional activities such as on-premises consultation or public lending and activities such as off-premises (online, at a distance) consultation and e-lending? What problems have you encountered?
[Open question]
I have no answer to this question.

4. Mass digitisation

    40. [In particular if you are an institutional user, engaging or wanting to engage in mass digitisation projects, a right holder, a collective management organisation:] Would it be necessary in your country to enact legislation to ensure that the results of the 2011 MoU (i.e. the agreements concluded between libraries and collecting societies) have a cross-border effect so that out of commerce works can be accessed across the EU?
YES
I believe so. I understand the UK Intellectual Property Office is currently also working on updating the UK's library and archive preservation exceptions to permit preservation copying of all types of media.
    41. Would it be necessary to develop mechanisms, beyond those already agreed for other types of content (e.g. for audio- or audio-visual collections, broadcasters’ archives)?
YES
Most likely.

B. Teaching

    42. (a) [In particular if you are an end user/consumer or an institutional user:] Have you experienced specific problems when trying to use works or other subject-matter for illustration for teaching, including across borders?
(b) [In particular if you are a right holder:] Have you experienced specific problems resulting from the way in which works or other subject-matter are used for illustration for teaching, including across borders?
YES

    43. If there are problems, how would they best be solved?
[Open question]
Reducing the exorbitant cost of textbooks and licences to access copyrighted materials.
    44. What mechanisms exist in the market place to facilitate the use of content for illustration for teaching purposes? How successful are they?
[Open question]
There are a variety of market mechanisms but they are failing as evident from the exorbitant cost of textbooks and licences to access copyrighted materials.
    45. If your view is that a legislative solution is needed, what would be its main elements? Which activities of the beneficiary institutions should be covered and under what conditions?
[Open question]
Universal legislation to incentivise free and 'green' open access (green open access, under which authors self-archive their published papers in open-access repositories) publishing of all publicly funded research and teaching.
    46. If your view is that a different solution is needed, what would it be?
[Open question]
Legislation plus investment in infrastructure of 'green' open access publishing. Careful thought will need to be given to the kinds of sustainable funding/business models needed to support this. But it is possible to imagine a cross-border licencing regime whereby member state governments or private/public partnerships funding open access repositories could charge a license for access to users in other jurisdictions. The evolution of sustainable commerce and government funding models to facilitate access for teaching will be a non trivial exercise.

C. Research

    47. (a) [In particular if you are an end user/consumer or an institutional user:] Have you experienced specific problems when trying to use works or other subject matter in the context of research projects/activities, including across borders?
(b) [In particular if you are a right holder:] Have you experienced specific problems resulting from the way in which works or other subject-matter are used in the context of research projects/activities, including across borders?
YES


    48. If there are problems, how would they best be solved?
[Open question]
The issues are similar as for teaching access.

    49. What mechanisms exist in the Member States to facilitate the use of content for research purposes? How successful are they?
[Open question]
I'm not going to offer an answer to this question.

D. Disabilities


    50. (a) [In particular if you are a person with a disability or an organisation representing persons with disabilities:] Have you experienced problems with accessibility to content, including across borders, arising from Member States’ implementation of this exception?
(b) [In particular if you are an organisation providing services for persons with disabilities:] Have you experienced problems when distributing/communicating works published in special formats across the EU?
(c) [In particular if you are a right holder:] Have you experienced specific problems resulting from the application of limitations or exceptions allowing for the distribution/communication of works published in special formats, including across borders?
YES


    51. If there are problems, what could be done to improve accessibility?
[Open question]
WIPO's agreement on the Marrakesh Treaty last year to facilitate access to published works by visually impaired persons and persons with print disabilities was a minor miracle few who had been fighting for it for so long ever believed would come to pass.
It remains to be seen what impact it will have in practice on visually impaired persons' and persons with print disabilities' actual access to published works. The treaty is supposed to address the “book famine” suffered by blind, visually disabled and those with print disabilities by requiring its contracting parties to adopt national law provisions that permit the reproduction, distribution and making available of published works in accessible formats through limitations and exceptions to the rights of copyright rights-holders.


    52. What mechanisms exist in the market place to facilitate accessibility to content? How successful are they?
[Open question]
The marker place has been failing dismally given the now widespread agreement on the existence of the book famine.

E. Text and data mining

    53. (a) [In particular if you are an end user/consumer or an institutional user:] Have you experienced obstacles, linked to copyright, when trying to use text or data mining methods, including across borders?
(b) [In particular if you are a service provider:] Have you experienced obstacles, linked to copyright, when providing services based on text or data mining methods, including across borders?
(c) [In particular if you are a right holder:] Have you experienced specific problems resulting from the use of text and data mining in relation to copyright protected content, including across borders?
YES
Text and data mining is not my area of academic expertise.
    54. If there are problems, how would they best be solved?
[Open question]
Text and data mining for scientific and technological development purposes offer significant potential benefits. Yet it often requires the negotiation of complex contracts or licences between researchers and rights-holders. Some of the transaction costs involved could be eased through the development of more standardised and open and in some instances compulsory licensing models.
    55. If your view is that a legislative solution is needed, what would be its main elements? Which activities should be covered and under what conditions?
[Open question]
I don't have access to sufficient empirical evidence to suggest a legislative solution but again it comes back to the complex calculus of the relative interests of the three generic sets of stakeholders; in this instance
  • researchers & creators/originators
  • economic agents & rights-holders
  • society
I understand the UK intends to introduce a specific copyright exception to encourage the use of text and data mining techniques in research, within the scope of Article 5(3)(a) of the Infosoc Directive. There may be a case to expand the scope of such an exception to teaching, private and non-commercial uses.

    56. If your view is that a different solution is needed, what would it be?
[Open question]
There is something to be said for the Google book project approach here, except perhaps in this instance it should be a publicly funded version. Prominent academic institutions would make their collections available for scanning into interoperable text & data mining friendly standard open formats.
As per teaching and research contexts, work is required on working out sustainable funding and business models to support this kind of infrastructure on an ongoing basis.
    57. Are there other issues, unrelated to copyright, that constitute barriers to the use of text or data mining methods?
[Open question]
Text and data mining experts are better placed to provide an informed response on this question.

F. User-generated content

    58. (a) [In particular if you are an end user/consumer:] Have you experienced problems when trying to use pre-existing works or other subject matter to disseminate new content on the Internet, including across borders?
(b) [In particular if you are a service provider:] Have you experienced problems when users publish/disseminate new content based on the pre-existing works or other subject-matter through your service, including across borders?
(c) [In particular if you are a right holder:] Have you experienced problems resulting from the way the users are using pre-existing works or other subject-matter to disseminate new content on the Internet, including across borders?
YES


    59. (a) [In particular if you are an end user/consumer or a right holder:] Have you experienced problems when trying to ensure that the work you have created (on the basis of pre-existing works) is properly identified for online use? Are proprietary systems sufficient in this context?
(b) [In particular if you are a service provider:] Do you provide possibilities for users that are publishing/disseminating the works they have created (on the basis of pre-existing works) through your service to properly identify these works for online use?
I'm not sure I fully understand what question 58 is getting at.


    60. (a) [In particular if you are an end user/consumer or a right holder):] Have you experienced problems when trying to be remunerated for the use of the work you have created (on the basis of pre-existing works)?
YES
    61. If there are problems, how would they best be solved?
[Open question]
I don't have an answer to this question


    62. If your view is that a legislative solution is needed, what would be its main elements? Which activities should be covered and under what conditions?
[Open question]
I don't have an answer to this question.

    63. If your view is that a different solution is needed, what would it be?
[Open question]
I don't have an answer to this question.
    IV. Private copying and reprography
    64. In your view, is there a need to clarify at the EU level the scope and application of the private copying and reprography exceptions7 in the digital environment?
YES

    65. Should digital copies made by end users for private purposes in the context of a service that has been licensed by rightholders, and where the harm to the rightholder is minimal, be subject to private copying levies?8
NO
The two most commonly cited economic studies into the effects of private copying remuneration (PCR) systems – Econlaw (2007)9 and Nathan Associates (2006)10 – 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 empirical economic evidence that format-shifting, private and user-generated content cause any kind of economic damage to rights-holders does not appear to exist. Arguments that support tighter copyright law, or support PCR systems, tend to confuse economic damage with consumer value.
    66. How would changes in levies with respect to the application to online services (e.g. services based on cloud computing allowing, for instance, users to have copies on different devices) impact the development and functioning of new business models on the one hand and rightholders’ revenue on the other?
[Open question]
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.


    67. Would you see an added value in making levies visible on the invoices for products subject to levies?11
YES
As stated above there is no economic case to be made for levies. However, if there is an insistence on having them for other reasons e.g. in the interests of certain economic agents, then transparency on the proportion of the product price due to the levies would be appropriate.


    68. Have you experienced a situation where a cross-border transaction resulted in undue levy payments, or duplicate payments of the same levy, or other obstacles to the free movement of goods or services?
I don't have an answer to that question.

    69. What percentage of products subject to a levy is sold to persons other than natural persons for purposes clearly unrelated to private copying? Do any of those transactions result in undue payments? Please explain in detail the example you provide (type of products, type of transaction, stakeholders, etc.).
[Open question]
I don't have an answer to that question.
    70. Where such undue payments arise, what percentage of trade do they affect? To what extent could a priori exemptions and/or ex post reimbursement schemes existing in some Member States help to remedy the situation?
[Open question]
I don't have the empirical evidence to answer that question.

    71. If you have identified specific problems with the current functioning of the levy system, how would these problems best be solved?
[Open question]
Scrap levies since there is no economic case to be made for them.
……………………………………………………………………………………………….
    V. Fair remuneration of authors and performers
    72. [In particular if you are an author/performer:] What is the best mechanism (or combination of mechanisms) to ensure that you receive an adequate remuneration for the exploitation of your works and performances?
[Open question]
There is no one best mechanism. There are a variety of revenue flow models which can work either through direct sales or through intermediaries e.g. economic agents such as publishers and collecting societies dealing on fair and reasonable terms with authors/performers. Easy, widespread (and sometimes open and/or creative commons) access to authors/performers' work at a reasonable cost is the key.

    73. Is there a need to act at the EU level (for instance to prohibit certain clauses in contracts)?
YES
I'd recommend reading Diane Rappaport, The Recording Artist as an Indentured Servant -
Steve Albini, The Problem with Music -
and Courtney Love, Courtney Love Does the Math -
on the exploitative nature of music industry contracting with performing artists. The performers need stronger legal protections.

    74. If you consider that the current rules are not effective, what would you suggest to address the shortcomings you identify?
[Open question]
The application of a generic unfair contract terms principle to recording industries' contracts with performers would be a start. The prosecution of entertainment industries for fraud in cases of the manipulation of accounts to avoid paying fair recompense to performers and creators would be another approach. Currently performers and creators lose out in these cases or are obliged to pursue expensive civil legal proceedings e.g. for copyright infringement, declaratory relief, breach of contract etc. to fight for a fair share of the revenues arising from the sales of their creative works and derivatives.
There is quite a lot of scope for EU action to address iniquities in relation to the remuneration of performers and authors.
But I would agree with the UK IPO, that consideration of this issue should be based on a clear understanding of the nature of the problem and its scale and the extent to which the problem is unique to copyright contracts. In other words there is further need for robust empirical research on the scale and scope of the issue.


    VI. Respect for rights
    75. Should the civil enforcement system in the EU be rendered more efficient for infringements of copyright committed with a commercial purpose?
It entirely depends on what is meant by rendering the system “more efficient.” Too often this kind of argument is used as an excuse to trample on fundamental rights. So it may be appropriate to remind those involved in collating this consultation of the opinion of the Court of Justice of the European Union on this point in Case C-275/06
Productores de Música de España (Promusicae) v Telefónica de España SAU (2008).
The dispute was between Spanish music rights holders' association Promusicae and Spain's top telecommunications operator, Telefonica.
Telefonica argued that, under a national law based on EU rules, it had to disclose the name of an Internet subscriber only for criminal actions, not civil ones.
"Community law does not require the member states, in order to ensure the effective protection of copyright, to lay down an obligation to disclose personal data in the context of civil proceedings," the court said in a statement."
The court said:

"There are several community directives whose purpose is that the member states should ensure, especially in the information society, effective protection of industrial property, in particular copyright.

Such protection cannot, however, affect the requirements of the protection of personal data. The directives on the protection of personal data also allow the member states to provide for exceptions to the obligation to guarantee the confidentiality of traffic data"

In other words, the ECJ concluded that privacy trumps copyright protection and the judgement was expected since the ECJ's Advocate General, Juliane Kokott, in advising the court in August of last year, basically said the same thing.
In other words, the ECJ concluded that privacy trumps copyright protection and the judgement was expected since the ECJ's Advocate General, Juliane Kokott, in advising the court in August of last year, basically said the same thing. The Court press release relating to the judgement stated:
29 January 2008
Judgment of the Court of Justice in Case C-275/06
Productores de Música de España (Promusicae) v Telefónica de España SAU
THE COURT RULES ON THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN THE INFORMATION SOCIETY
Community law does not require the Member States, in order to ensure the effective protection of copyright, to lay down an obligation to disclose personal data in the context of civil proceedings
There are several Community directives 1 whose purpose is that the Member States should ensure, especially in the information society, effective protection of industrial property, in particular copyright. Such protection cannot, however, affect the requirements of the protection of personal data. The directives on the protection of personal data 2 also allow the Member States to provide for exceptions to the obligation to guarantee the confidentiality of traffic data.
Promusicae is a Spanish non-profit-making organisation of producers and publishers of musical and audiovisual recordings. It applied to the Spanish courts for an order that Telefónica should disclose the identities and physical addresses of certain persons whom it provided with internet access services, whose IP address and date and time of connection were known. According to Promusicae, those persons were using the KaZaA file exchange program (peer-to-peer or P2P) and providing access in shared files of personal computers to phonograms in which members of Promusicae held the exploitation rights. It therefore sought disclosure of the above information in order to be able to bring civil proceedings against the persons concerned.
Telefónica argued that, under Spanish law,3 the communication of the data sought by Promusicae was authorised only in a criminal investigation or for the purpose of safeguarding public security and national defence.
The Spanish court asks the Court of Justice of the European Communities whether Community law requires the Member States to lay down, in order to ensure effective protection of copyright, an obligation to communicate personal data in the context of civil proceedings.
The Court of Justice notes that the exceptions permitted by the directives on the protection of personal data include the measures necessary for the protection of the rights and freedoms of others. As the directive on privacy and electronic communications does not specify the rights and freedoms concerned by that exception, it must be interpreted as expressing the Community legislature’s intention not to exclude from its scope the protection of the right to property or situations in which authors seek to obtain that protection in civil proceedings. It does not therefore preclude the possibility for the Member States of laying down an obligation to disclose personal data in the context of civil proceedings. However, it does not compel the Member States to lay down such an obligation.
As to the directives on intellectual property, the Court of Justice finds that they too do not require the Member States to lay down, in order to ensure effective protection of copyright, an obligation to communicate personal data in the context of civil proceedings.
That being so, the Court points out that the present reference for a preliminary ruling raises the question of the need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect for private life on the one hand and the rights to protection of property and to an effective remedy on the other.
The Court concludes that the Member States must, when transposing the directives on intellectual property and the protection of personal data, rely on an interpretation of those directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with the directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.
The full judgment is available at the ECJ website. It is a technical judgment looking at the details of a collection of EU directives and how they interact; and how to achieve a balance between the right to protect personal data and the right to protect property but the key parts of the decision in my opinion are paragraphs 61 to 70:
"Fundamental rights
61 The national court refers in its order for reference to Articles 17 and 47 of the Charter, the first of which concerns the protection of the right to property, including intellectual property, and the second of which concerns the right to an effective remedy. By so doing, that court must be regarded as seeking to know whether an interpretation of those directives to the effect that the Member States are not obliged to lay down, in order to ensure the effective protection of copyright, an obligation to communicate personal data in the context of civil proceedings leads to an infringement of the fundamental right to property and the fundamental right to effective judicial protection.
62 It should be recalled that the fundamental right to property, which includes intellectual property rights such as copyright (see, to that effect, Case C 479/04 Laserdisken [2006] ECR I 8089, paragraph 65), and the fundamental right to effective judicial protection constitute general principles of Community law (see respectively, to that effect, Joined Cases C 154/04 and C 155/04 Alliance for Natural Health and Others [2005] ECR I 6451, paragraph 126 and the case-law cited, and Case C 432/05 Unibet [2007] ECR I 2271, paragraph 37 and the case-law cited).
63 However, the situation in respect of which the national court puts that question involves, in addition to those two rights, a further fundamental right, namely the right that guarantees protection of personal data and hence of private life.
64 According to recital 2 in the preamble to Directive 2002/58, the directive seeks to respect the fundamental rights and observes the principles recognised in particular by the Charter. In particular, the directive seeks to ensure full respect for the rights set out in Articles 7 and 8 of that Charter. Article 7 substantially reproduces Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950, which guarantees the right to respect for private life, and Article 8 of the Charter expressly proclaims the right to protection of personal data.
65 The present reference for a preliminary ruling thus raises the question of the need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect for private life on the one hand and the rights to protection of property and to an effective remedy on the other.
66 The mechanisms allowing those different rights and interests to be balanced are contained, first, in Directive 2002/58 itself, in that it provides for rules which determine in what circumstances and to what extent the processing of personal data is lawful and what safeguards must be provided for, and in the three directives mentioned by the national court, which reserve the cases in which the measures adopted to protect the rights they regulate affect the protection of personal data. Second, they result from the adoption by the Member States of national provisions transposing those directives and their application by the national authorities (see, to that effect, with reference to Directive 95/46, Lindqvist, paragraph 82).
67 As to those directives, their provisions are relatively general, since they have to be applied to a large number of different situations which may arise in any of the Member States. They therefore logically include rules which leave the Member States with the necessary discretion to define transposition measures which may be adapted to the various situations possible (see, to that effect, Lindqvist, paragraph 84).
68 That being so, the Member States must, when transposing the directives mentioned above, take care to rely on an interpretation of the directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality (see, to that effect, Lindqvist, paragraph 87, and Case C 305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I 0000, paragraph 28).
69 Moreover, it should be recalled here that the Community legislature expressly required, in accordance with Article 15(1) of Directive 2002/58, that the measures referred to in that paragraph be adopted by the Member States in compliance with the general principles of Community law, including those mentioned in Article 6(1) and (2) EU.
70 In the light of all the foregoing, the answer to the national court’s question must be that Directives 2000/31, 2001/29, 2004/48 and 2002/58 do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings. However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality."
And they then conclude:
On those grounds, the Court (Grand Chamber) hereby rules:
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings. However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.


    76. In particular, is the current legal framework clear enough to allow for sufficient involvement of intermediaries (such as Internet service providers, advertising brokers, payment service providers, domain name registrars, etc.) in inhibiting online copyright infringements with a commercial purpose? If not, what measures would be useful to foster the cooperation of intermediaries?
[Open question]
It should be no part of the function of intermediaries such as ISPs or domain name registrars to act as copyright police. The fact that many jurisdictions approach to the widespread copyright infringement on peer-to-peer services on the internet is to introduce three-strikes regimes (e.g. France) implemented through ISP policing is to be lamented.
If intermediaries are to be liable for policing potentially infringing content on the Internet, that has a significant commercial cost and consequent downstream consumer and societal welfare cost. E.g. is it truly proportionate for someone to lose access to the internet for infringing copyright? It is unlikely these costs are outweighed by the benefit to rights-holders derived from such ISP policing but it could be put to an empirical test through robust empirical research.
The internet is effectively controlled by private sector intermediaries. How, therefore, do you ensure the private sector not only respects but also upholds the rights of users? These private companies are not equipped to do so. They cannot be expected to make subtle human rights judgements. They are in business to make money so neither are they motivated to protect the rights of users. If commercial or legal pressure says they should block access to certain websites or throttle a customer's internet service for copyright reasons then that is the route that will be taken, regardless of the individual rights that may be infringed. In many online contexts punishment is arbitrary, lacks transparency, lacks due process, with limited access to remedies or appeals. Arguably this is the case with the 3 strikes process in France or the 6 strikes process in the US. That is not an environment in which human rights will be respected and so intermediaries like the telecoms companies and ISPs need support in protecting fundamental rights if they are to be obliged to be copyright police.
    77. Does the current civil enforcement framework ensure that the right balance is achieved between the right to have one’s copyright respected and other rights such as the protection of private life and protection of personal data?
NO
    VII. A single EU Copyright Title
    78. Should the EU pursue the establishment of a single EU Copyright Title, as a means of establishing a consistent framework for rights and exceptions to copyright across the EU, as well as a single framework for enforcement?
Probably not. Copyright regulations are incredibly complicated. It would be impossible to predict the consequences of getting from the current chaotic multi-jurisdictional approach to a single EU copyright title for
  • creators
  • economic agents
  • society
As an old friend of mine would say, if I was going there I wouldn't start from here. I would not dismiss the idea entirely, given the potential to simplify copyright regulations generally. However, there are a vast number of complex and contentious issues relating to copyright that it may prove necessary to address before attempting such a move.
    79. Should this be the next step in the development of copyright in the EU? Does the current level of difference among the Member State legislation mean that this is a longer term project?
[Open question]
Almost certainly a longer term project if the case can be made.
    VIII. Other issues
    80. Are there any other important matters related to the EU legal framework for copyright? Please explain and indicate how such matters should be addressed.
[Open question]
I don't have anything further to add at the moment. Given the shortness of time I have not provided a comprehensive list of references for all of my answers above but would be happy to do so at a later date if required.
Thanks for the opportunity to contribute to this consultation and for your attention if you have managed to get through all or even just some my comments.


1CREATe is the RCUK centre for copyright and new business models in the creative economy. http://www.create.ac.uk/
2See Rogers, M; Corrigan, R and Tomalin, J (2010). The economic impact of consumer copyright
exceptions: a literature review. Consumer Focus, London, UK. For a more in depth analysis of copyright exceptions impact weighing consumer value and economic damage to copyright holders.
3 Injunctive relief is a temporary or permanent remedy allowing the right holder to stop or prevent an infringement of his/her right.
4See Rogers, M; Corrigan, R and Tomalin, J (2010). The economic impact of consumer copyright
exceptions: a literature review. Consumer Focus, London, UK.
5If we use a rate of 5% for example, an infinite term of copyright is worth £20,000, 95 years is worth £19,827 and 50 years £18,358. So the 95 year term is worth 99.1% of an infinite term using a 5% discount rate to allow for the time value of money. A 50 year term would be worth 91.8% of an infinite term or 92% of a 95 year term. See also Posner, Richard A. and William M. Landes. 2003. The Economic Structure of Intellectual Property Law. Harvard University Press. Cambridge. Pp210 – 253.

A.6What happens with digital rights management in the real world? http://www.theguardian.com/technology/blog/2014/feb/05/digital-rights-management

7 Art. 5.2(a) and 5.2(b) of Directive 2001/29/EC.
8 This issue was also addressed in the recommendations of Mr Antonio Vitorino resulting from the mediation on private copying and reprography levies
9EconLaw (2007). Economic Analysis of Private Copy Remuneration, Report to
Groupement Européen des Sociétés d’Auteurs et Compositeurs (GESAC).
10Nathan Associates Study (2006) ‘Private Copying Levies on Digital Equipment
and Media: Direct Effects on Consumers and Producers and Indirect Effects
on Sales of Online Music and Ringtones’.
11 This issue was also addressed in the recommendations of Mr Antonio Vitorino resulting from the mediation on private copying and reprography levies.
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Wednesday, February 26, 2014

Health committee care.data hearing

The video of the House of Commons Health Committee hearing (on 25/2/14 in Committee Room 15) on the NHS care.data scheme is embedded below.


The witnesses at the first session, Phil Booth, Co-ordinator, medConfidential, Nick Pickles, Director, Big Brother Watch, Sharmila Nebhrajani, Chief Executive, Association of Medical Research Charities, Professor Peter Weissberg, Medical Director, British Heart Foundation, and Dr Chand Nagpaul, Chair, British Medical Association General Practitioners Committee, make a whole host of valid points.

The witnesses at the second session, Dr Daniel Poulter MP, Parliamentary Under-Secretary of State, Department of Health, Tim Kelsey, National Director for Patients and Information, NHS England, and Max Jones, Director of Information and Data Services, Health and Social Care Information Centre, don't inspire confidence.

Glyn Wintle's and Ben Goldacre's Twitter streams on the day are a good place to start until the transcript is made available.


Ben's for entertainment value as well as insight...

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Tuesday, February 11, 2014

The Day We Fight Back

I've written to my MP, Nicola Blackwood, again. This time to highlight the Don't Spy on Us campaign launched by the Open Rights Group, Liberty, Big Brother Watch, Article 19, English Pen and Privacy International. It's the UK arm of the global The Day We Fight Back.

The form on the Don't spy on us campaign page returned an error when I tried to use it, so I emailed Ms Blackwood directly instead.
"Nicola,

I realise from our recent correspondence that you don't necessarily agree with my perspective on the Snowden revelations.


So I expect you will not be surprised to learn I have signed up to the "Don't Spy on Us" campaign, launched today by the Open Rights Group, Liberty, English Pen, Big Brother Watch, Privacy International and Article 19.

It's based on 6 principles which it's really a little surprising anyone would consider in any way controversial in 2014:

1. No surveillance without suspicion
2. Transparent laws, not secret laws
3. Judicial not political authorisation
4. Effective democratic oversight
5. The right to redress
6. A secure Web for all
(Personally I would have rephrased that last one to "A secure internet for all" but a secure Web would be a start).

Even if you have made up your mind on the UK government response to the Snowden affair, I would ask that you still give serious consideration to the general points of principle raised by the Don't Spy on Us campaign in this centenary year marking the beginning of World War 1.

You may additionally be interested in my submission to the Intelligence and Security Committee Inquiry into privacy and security -


You can also find more details on the Don't Spy on Us campaign at the website
Thanks as ever for taking the time to consider my thoughts on what are inherently difficult matters.
Regards,
Ray"
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Friday, February 07, 2014

Submission to ISC Inquiry into Privacy and Security

I've sent a submission to the Intelligence and Security Committee's Inquiry into Privacy and Security. It was done in a hurry so hopefully is not too incoherent.

To the members of the Committee,

Thank you for the opportunity to make a submission to your inquiry into privacy and security.

My name is Ray Corrigan. I’m a Senior Lecturer in the Maths, Computing & Technology Faculty of The Open University though I write to you in a personal capacity.

Executive Summary

Privacy and security are not opposites but mutually dependent. It is essential the committee understand that the false privacy v security dichotomy that so often frames public debate seriously undermines policymakers’ and the public’s understanding of the issues at hand. The single most important airline security measure put in place following the terrible attacks on September 11th 2001 was the reinforcement of cockpit doors. That had absolutely no impact on the personal privacy of travellers. The hugely expensive naked scanners installed at airports, however, take a terrible toll on personal privacy whilst being functionally worse than useless as a security measure (and the X-ray variety has been shown to pose a risk to health). A door lock or a strong high fence provides security without compromising privacy.

Massive data collection and mining compromise privacy and security. The NSA gave 850,000 people access to classified materials as a routine part of their jobs. Their systems are big and complex and require a lot of staff to operate but there can be no security when that number of people has access to secrets. 

There is no “balance” to be achieved between the “individual right to privacy and the collective right to security”. The collective right to security requires an individual and collective right to privacy. The value of protecting individual and collective privacy is that those rights make a fundamental contribution to the overall health of society. Framing privacy as the opposite of security assumes privacy is only about hiding bad things. That couldn’t be more wrong.

It is fundamentally incompatible with the rule of law to collect information about every member of the population in the hope of conducting post hoc fishing expeditions to look for evidence of misbehaviour. Could I remind the committee of the belief of Cardinal Richelieu that given 6 lines written by the most honest man he could show you the evidence to hang him. 

It is unnecessary and completely disproportionate, not to mention dangerously ineffective, “to collect innocent communications in order to find those who might threaten our security.” Finding a terrorist or serious criminal is a needle in a haystack problem – you can’t find the needle by throwing infinitely more needle-less electronic hay on the stack.  Law enforcement, intelligence and security services have to be able to move with the times. They need to use modern digital technologies intelligently in their work and through targeted data preservation regimes – not the mass surveillance regime they are currently operating – engage in technological surveillance of individuals about whom they have reasonable cause to harbour suspicion. That is not, however, the same as building an infrastructure of mass surveillance which, incidentally, in addition to being a clear and present danger to democracy, makes it mathematically impossible for dedicated intelligence services staff to do their job with any degree of effectiveness.

The committee should understand that computers are not magic. These machines do exactly what they are programmed to do not what you would like them to do.  I make this point specifically in light of the Prime Minister’s recent comments to the effect that the TV crime drama he likes so much justifies the mass data collection activities of the intelligence services. TV crime drama and Hollywood films generally are terrible guides to how computers actually work in practice.  The committee should additionally understand that there is no clear distinction to be made between communications data (or so called meta data) and communications content. If it is difficult to define the distinction from a social or legal perspective it is impossible to implement from the technical perspective.

a)      What balance should be struck between the individual right to privacy and the collective right to security?
How does this differ for internet communications when compared to other forms of
surveillance, such as closed-circuit television cameras? To what extent might it be
necessary and proportionate to monitor or collect innocent communications in order to find those which might threaten our security? How does the intrusion differ between data (the fact a call took place between two numbers) as opposed to content (what was said in the call)?

1. If the committee only takes one thing away from this submission let it be this –
       ·        Privacy and security are not opposites.
       ·        There is no balance to be struck between the individual right to privacy and the collective right to security.

2. Privacy has an image problem. It is constantly portrayed as out of date, costly, an obstacle to public safety and new and exciting forms of commerce and research. So if we pitch privacy against something as essential as national security, it is a no contest. What does it matter if we have to dispense with a little personal privacy for the guaranteed gain of being safer and more secure?

3. It matters because when you start with this fundamentally flawed premise and the committee’s flawed question, it leads you to the wrong answers.  The notion that privacy has to be sacrificed for security is wrong. More privacy does not mean less security any more than more security means less privacy. The associated (unspoken) idea that individual privacy is damaging to society is wrong. There’s no strict division between individuals and society. The welfare of both is inextricably interlinked. The fundamental right to privacy of the individual is one of the foundation stones of a healthy society. The value of protecting individual and collective privacy is incalculably important to the future of our information society.

4. The constant refrain about the need to balance privacy and security is quite simply wrong because it has a number of built in assumptions that are wrong.

5. It assumes that privacy and security are opposites which is false. A locked door and a tall strong fence provide security and facilitate privacy. A reinforced cockpit door – the most important airline security measure put in place since the atrocities of September 11th 2001 – does nothing to compromise privacy.

6. It assumes that undermining privacy through the use of magic modern computer systems will improve security. This is false. Democracy and freedom requires privacy and security. That such mass surveillance will not work can be demonstrated mathematically.

7. The esteemed chairman of the ISC, Mr Rifkind, has stated in parliament (in the debate on oversight of intelligence & security services on 31st October 2013) that

“Of the totality processed by computers, perhaps 0.01% will have selectors that the computer has been programmed to look for. The communications of the other 99.99%— covering virtually every citizen of this country, bar a very small number—are never even looked at by the computer, other than in relation to a selector, such as an e-mail address. Even for the tiny minority identified by the computers as potentially relevant to terrorism, if GCHQ, MI5 or MI6 want to read the content of any of the e-mails, they have to go to the Secretary of State for permission. Under the law, only if they are given permission can the content be read”

8. I'm going to do some very rough maths here in an attempt to explain the problem with Mr Rifkind’s point that only 0.01% of communications data is looked at.

9. 0.01% of 60 million people in the UK implicates 6000. Now the pattern flagging will be nowhere near as simple as that but just run with it as a crude estimate. We know from the deputy director of the NSA testifying before the House Judiciary Committee that you don't need to be a terrorist or have contact (deliberate or inadvertent) with a terrorist to be flagged as suspicious. The NSA (and presumably GCHQ?) is allowed to travel “three hops” from its targets – who could be people connected to people connected to people connected to you. 0.01% of the UK population or 6000 people are 2 degrees of separation from about 160,197,360 and 3 degrees of separation from over 26 billion others (about three and a half times the population of the world).

10. Even limiting suspicion to two hops, your 0.01% of data on UK residents, Mr Rifkind, implicates more than 2.6 times the entire UK population. So the question then becomes, given that we are all suspects, who decides which suspects the intelligence services' limited resources should be deployed to further investigate and pursue, once the computer algorithms have worked their magic? 

11. Every time the (theoretically 99.99% effective) magic terrorist catching system is asked for a suspect it implicates vastly more people than the security services could possibly investigate in any detail.

12. Mr Rifkind also rightly stated "Modern computers... are programmed to run using certain selectors". So who gets to program the computers and what are the specific 'selectors'/filters? Who decides what the selectors should be? Who decides who decides what the selectors should be? The chair of the ISC doesn't understand computers, so how can he effectively and his committee scrutinise the technical aspects of this work? How do you measure the efficacy of these filters given it is widely known in the tech community how ineffective electronic filters can be? How, when someone is tagged as suspicious via these secret algorithms, does the information on that individual then get further processed? What happens when someone is wrongly tagged and how do they retrieve their innocence and clean bill of electronic health? Are you aware of the nature of false negative results and false positive results?

13. In multiple media engagements the Prime Minister, the Home Secretary and other members of the government refer to "protecting the public" from the four horsemen of the infocalypse - terrorists, drug dealers, child abusers and organised crime - and more. The Prime Minister last week extolled the virtues of TV crime dramas as a guide to how electronic surveillance systems should be deployed in practice. TV crime drama and Hollywood films generally are terrible guides to how computers actually work in practice. 

14. Mathematically the four horsemen are not problems that lend themselves to mass data mining. Even highly accurate (to 99.99% and by the way no current system comes close to that) data mining systems will swamp investigators with false positives when dealing with a large population. Law enforcement authorities end up investigating and alienating large numbers of innocent people. That’s no good for the innocents, for the investigators or for society.

15. There is an oft repeated the myth that the 9/11 attacks would have been prevented if only the US intelligence and security services had known where Mohamed Atta was when he had made a phone call to a terrorist suspect in Syria. The assumption is the magic terrorist catching mass data collection and analysis apparatus now run by the NSA would have pinpointed his location and led to his arrest.

16. Wrong.

17. Atta was known to the intelligence and security services and considered a threat. Police, intelligence and security systems are imperfect. Even in 2001 they processed vast amounts of imperfect intelligence information. At least one FBI agent believed Atta to pose a serious and imminent threat. That belief got lost in the noise of the intelligence information processes, suspects and issues the agencies were then dealing with, to the degree that they did not detain Atta or his associates and prevent the attack.

18. There was too much data noise in the system and they lost him. You cannot cure that excess of data noise problem by treating the entire population as suspects, engaging in suspicionless, blanket collection and processing of personal data. You cannot find the real terrorist by assuming everyone is a threat.

19. Mass data collectors can dig deeply into the digital persona of anyone but don’t have the resources to do so with everyone. The resultant pursuit of false positive leads mean the real bad guys often get lost in the noise, as happened with the 9/11 attackers including Atta who were known to US authorities but not considered sufficiently important to intercept.

20. Finding the four horsemen is a needle in a haystack problem and you can’t find the needle by throwing infinitely more needle-free hay on your stack and/or creating multiple giant and exponentially growing data haystacks.

21. Operating multiple massive databases of intimate personal communications data makes the public more vulnerable to the four horsemen not less so.

22. That such mass databases are useless for finding terrorists is clear from the maths and the evidence. The NSA has admitted in spite of previous claims that their mass data collection and analysis stopped 54 major terror attacks since 9/11 it didn't really stop any, but may possibly have provided secondary supportive evidence in relation to one. The most recent argument they used to support the deployment of such systems is mass data collection might be useful as an "insurance policy". An insurance policy?! The infrastructure of mass surveillance might be useful in the future, somehow, to someone?

23. That such systems also make the public less safe is associated with the impossibility of securing mass silos of valuable personal data. Computer scientists simply do not know how to keep databases of the magnitude of those used by the NSA and GCHQ secure from external hackers or the multitude of insiders who have access to these databases as a routine part of their jobs (850,000 including Edward Snowden in the case of the NSA).  Security experts like Ross Anderson, Bruce Schneier, Edward Felten and Peter Sommer have written extensively about this.  To understand this you have to think about how such systems can fail - how they fail naturally, through technical problems and errors (a universal problem with computers), and how they can be made to fail by attackers (insiders and outsiders) with malign intentions e.g. the four horsemen. When the inevitable hacks, leaks, data contaminations happen, what then?

24. In its most insidious form the misleading privacy v security question is phrased as a statement along the lines “the innocent have nothing to hide”. This assumes two underlying falsehoods – firstly that privacy is only about hiding bad things and secondly that decimating privacy will solve the problem du jour. I hope I’ve demonstrated clearly to the committee that both these assumptions are wrong and that in answer to your questions –
      ·       There is no balance to be struck between the individual right to privacy and the collective right to security
·        It is neither necessary nor proportionate nor is it effective to engage in blanket monitoring or collection of  innocent communications in an attempt to find those who might threaten our security
25. On the question of whether the intrusion differs between data and content I would refer you to Peter Sommer’s writings and analysis e.g. analysis (sic) at
http://scramblingforsafety.org/2012/sf2012_sommer_commsdata_content.pdf
And his evidence before the select committee on the Communications Data Bill.
b) Whether the legal framework which governs the security and intelligence agencies’ access to the content of private communications is ‘fit for purpose’, given the developments in information technology since they were enacted.

26. The notion that the day to day activity of every citizen should be recorded in the expectation that those records can, in future, be mined for nefarious activity is anathema to a healthy functioning liberal democracy. Yochai Benkler in a recent Guardian article (http://www.theguardian.com/commentisfree/2013/oct/16/nsa-fbi-endrun-weak-oversight) put it more eloquently than I could:

     “Mass surveillance represents a commitment to near-universal all-seeing gaze, so as to assess and respond to threats that can arise anywhere, at any time. Privacy as a check on government power represents a constitutional judgment that a limited government must have limited power to inspect our daily lives, and that an omniscient government is too powerful for mere rules to restrain. The experience of the past decade confirms this incompatibility...

    Technology has enabled government to have investigative and situational awareness on a scale and scope that were science fiction when the Stasi shut its doors. The "state of emergency" mindset necessary to justify the program in the first place drives those charged with assuring the safety of Americans to always use this technology to its full potential; it also gives them an independent source of legitimacy for their actions – the fierce urgency of necessity.
    Their mission clashes with the fundamental premise of privacy as a civil right: that state power is best contained by making the overwhelming majority of what goes on in society invisible to the state. As Justice Alito put it in the supreme court's decision to strike down GPS tracking:

        [Historically] the greatest protections of privacy were neither constitutional nor statutory, but practical.

    Once the state knows about behaviour, it is hard to rely on rules alone to bear the full burden of preventing overreach by those who wield its awesome power...

    Rules alone cannot hold back the millions of potential abuses of an omniscient state.

    As long as government is allowed to collect all internet data, the perceived exigency will drive honest civil servants to reach more broadly and deeply into our networked lives.”
 
c) Proposals for specific changes to specific parts of legislation governing the collection, monitoring and interception of private communications.

27. As Jemina Stafford QC made clear in a formal opinion for a parliamentary committee last week, (http://www.tom-watson.co.uk/wp-content/uploads/2014/01/APPG-Final.pdf) the current mass data collection activities of sections of the UK government already undermine the right to privacy guaranteed in the Human Rights Act and article 8 of the European Convention on Human Rights. It is clear that the Regulation of Investigatory Powers Act does require an update but I don’t have any specific proposals to put before the committee at this stage.

28. However, I do have a general proposal that suspicion should be the test for surveillance.

29. The government of course has the right to intercept and record information when someone is suspected of a serious crime. But current operation [sic] appear to involve collection of data without suspicion: which is in effect mass surveillance. Due process, since the 1765 case of Entick v Carrington, requires that surveillance of a real suspected criminal be based on much more than general, loose, and vague allegations, or on suspicion, surmise, or vague guesses. To operate the mass date [sic] collection and analysis systems GCHQ has been reported as doing which give the entire population less protection than a hitherto genuine suspected criminal, based on a standard of reasonable suspicion, is indefensible. The gathering of mass data to facilitate future unspecified fishing expeditions is indefensible in law.

30. I appreciate the ISC and a multitude of highly dedicated public officials are grappling with really complex issues here. But it is critically important that you understand –

·        Privacy and security are not opposites.

·        There is no balance to be struck between the individual right to privacy and the collective right to security.

·        Computers are not magic and never will be

·        Mass data collection and analysis is mathematically provable to be unfit for the purpose of hunting the four horsemen of the infocalypse

31. It is also hugely important that you be provided with the resources and expertise required to fulfil the immensely demanding duties required of the committee.

32. I'd leave you with one final thought. Nearly 250 years ago, Lord Chief Justice Camden decided that government agents are not allowed to break your door down and ransack your house and papers in an effort to find some evidence to incriminate you (the case of Entick v Carrington (1765) 19 Howell’s State Trials 1029, 2 Wils 275, 95 ER 807, Court of Common Pleas).

33. The good judge also declared personal papers to be one’s “dearest property”. I suspect he might view personal data likewise in the internet age. I understand Lord Camden's reasoning in Entick became the inspiration behind the 4th Amendment to the US Constitution which offers protection from unreasonable searches and seizures. For a quarter of a millennium, fishing expeditions of the type that the GCHQ and NSA are engaged in have been considered to fundamentally undermine the rule of law. It's time Parliament brought these modern practices into line with that rule of law.
 Update: I neglected to number the paragraphs in my submission on Friday. Now rectified and amended above.
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Wednesday, February 05, 2014

Further MP response on Snowden

I've had another response from my MP, Nicola Blackwood, this time to my admittedly somewhat caustic critique of Foreign & Commonwealth Office Minister of State, Hugh Robertson's, letter on the oversight of intelligence and security services. It appears as though she has misinterpreted the tone of that post and rapidly retreated behind the shield of the government mantra on the Snowden affair:
"Dear Mr Corrigan,
Thank you for your further email about intelligence services and I apologise for the lengthy delay in my response.
I am sorry to learn that you were disappointed by the Minister's response, and having read your blog I understand that you feel the Minister did not address the point at hand and you are disappointed that he is unable to comment on specific intelligence matters. I do apologise that I cannot offer any further information than the Minister, but I would stress that the UK has one of the world's strongest legal and regulatory frameworks governing the use of secret intelligence. UK legislation is fully compatible with the right to privacy in Article 8 of the European Convention on Human Rights (ECHR). Our secret intelligence agencies are subject to the provisions of the Data Protection Act 1998 and additional UK statutory controls and safeguards, including the relevant sections of the Intelligence Services Act, the Human Rights Act 1998, and the Regulation of Investigatory Powers Act, and robust oversight mechanisms including the Intelligence Security Committee and the Interception of Communications Commissioner.
You also ask how many constituents contacted me on this debate, I can tell you that 15 constituents in total wrote to me to ask that I attend the debate on 31st October. Unlike yourself, other constituents who had contacted me on this issue had done so in the form of a campaign template email. Thank you again for contacting me, I hope this response is helpful.
Kind regards
Nicola"
I've further responded as follows:
Nicola,
I fear the sardonic nature of my blogpost criticising the Minister's response may have led you to misreading it. It doesn't ask anywhere that the Minister should comment on specific intelligence matters. It does ask essentially, as did the FT in its editorial earlier this week, as do a multitude of security and legal experts with a deep understanding of the technology and the law, that Edward Snowden’s revelations be understood and acted upon, since they raise important questions about surveillance in a free society. As I said to you before, since Entick v Carrington in 1765, fishing expeditions of the type that the GCHQ and NSA are engaged in have been considered to fundamentally undermine the rule of law. It's time Parliament brought these modern practices into line with that rule of law.
Your stressing of the government line that 'the UK has one of the world's strongest legal and regulatory frameworks governing the use of secret intelligence' and the UK intelligence services are subject to 'robust oversight mechanisms' is, I'm afraid, in direct contradiction to the evidence. Academics do have a rather irritating affinity for evidence.:-) A senior legal adviser to GCHQ has noted "We have a light oversight regime compared with the US". The members of the Intelligence Security Committee do not understand the technologies and do not have the resources to do the oversight job expected of them. Only last week Jemina Stafford QC, in a formal legal opinion for a parliamentary committee, declared GCHQ's mass data collection activities to be illegal and to have been signed off by ministers in breach of human rights and surveillance laws.
I could go on but suspect your retreat into a repetition of the government mantra on the affair means you have already disengaged.
Thanks for letting me know 15 constituents contacted you to ask you to attend the parliamentary debate on the 31st October. It would be disappointing if you were to give limited credence to those who decided to use the internet and a campaign template email to communicate with you on this or any other matter. I appreciate you probably deal with a large number of communications but it would be sad to return to the Blairite days of officially counting more than 10,000 [sic] objections to the proposed ID card scheme as a single response because they were coordinated through an internet facilitated campaign.
I would make one final point before signing off. Law enforcement, intelligence and security services need to be able to move with the times. They need to use modern digital technologies intelligently in their work and through targeted data preservation regimes – not the mass surveillance regime they are currently operating – engage in technological surveillance of individuals about whom they have reasonable cause to harbor suspicion. That is not, however, the same as building an infrastructure of mass surveillance which, incidentally, in addition to being a clear and present danger to democracy, makes it mathematically impossible for dedicated intelligence services staff to do their job with any degree of effectiveness.
Thanks for taking the time to respond again but it would appear that we are settling on different sides of the fence on the Snowden affair.
Regards,
Ray"
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Friday, January 31, 2014

ORG recruiting legal director

Some of the Open Rights Group's learn'd friends are calling for help to enable ORG to recruit a legal director:
"We are lawyers who work with the Open Rights Group. 
You and the Open Rights Group can make a huge difference in the UK and European courts, defending your digital rights. That’s why we are asking you to join ORG today, so they can hire a Legal Director. We need just 40 more people to hire them full time.

Help hire ORG's Legal Director 
But perhaps it’s best if we explain in our own words:
“The appointment of a legal director will make a real impact on the work of the Open Rights Group.  It has never been more important to have informed interventions at the High Court and appeal courts on matters to do with digital rights.
“I know from my own experience as appeal solicitor in the “Twitter Joke Trial” the difference it makes when courts properly understand technological issues, especially when imposing criminal liability on the citizen”
David Allen Green, solicitor at Preiskel & Co LLP, and member of Advisory Council, ORG.

“In the US, digital freedoms have been fought for and won in historic legal battles such as Reno v ACLU  and countless smaller cases where the EFF and other digital rights groups have helped take on cases involving freedom of speech online, privacy online, cyber- harassment, vindictive copyright enforcement and so on. In the UK until now civil society has never had the capacity to take such important legal cases. Help ORG hire a Legal Director to change this and bring UK law into the 21st century.”
Dr Lilian Edwards, ORG Advisory Council and Professor of Internet Law at Strathclyde University

“ORG is a vital partner with EFF in addressing mass surveillance. Just as GCHQ and NSA work together, it's increasingly critical that we strengthen the capabilities of groups on both sides of the Atlantic to push back to regain our privacy and free speech.”
Cindy Cohn, Legal Director, Electronic Frontier Foundation

“There is no doubt that Parliament and the Courts have struggled with the challenges posed by the explosion of online interaction and the growing importance of rights in an increasingly digital world. Decisions made now will shape the approach that the Law takes for decades and possibly longer. This is a key moment. ORG speaks up for those whose interests are usually discounted when it comes to governmental and judicial policy making – it speaks up for you and everyone else who lacks a vested interest and a lobbying budget. A Legal Director is exactly what ORG needs at exactly the time we all most need ORG.”
Seán Jones QC11KBW Chambers

“The law can be an instrument of repression but it can also be a powerful tool for change. Your support for ORG's Legal Director post can make a real difference in the fight for digital freedom in the UK.”
Eric Metcalfe, Monckton Chambers, former director of human rights policy at JUSTICE

“Please help with the appointment of a Legal Director for the Open Rights Group. In my personal experience, ORG have initiated valuable interventions on civil liberties issues affecting millions of adults in the UK, such as filtering.”
Myles Jackman, Law Society Junior Lawyer of the YearConsultant Solicitor-Advocate at Hodge Jones and Allen LLP @ObscenityLawyer

"As an American lawyer I've seen how important it is to have boots on the ground to defend civil liberties in court.  Even when the underlying law itself is designed to protect civil liberties, being able to appeal directly to the courts may be the only way to keep them protected not just in theory but in practice."
Cathy Gellis, US Tech and civil liberties lawyer

“I have had the honour of working with ORG to do some marvellous work: both intervening in high profile cases and working behind the scenes to help individuals who have fallen foul of laws that were not or should not have been drafted for the modern digital world. I am convinced that ORG could do so much more with the assistance of a full-time legal director and I am excited by all the things that ORG could do if it had one. Money pledged for this purpose will be money well spent.”
Francis Davey, Independent barrister and ORG legal volunteer
We need just 40 people to join to make this project happen.Please help us hire a full time Legal Director by joining the Open Rights Group today!
https://www.openrightsgroup.org/join/help-hire-orgs-legal-director
Yours,
ORG Legal volunteers and ORG Law group
_________
[1] British government to answer fast-track spy challenge https://www.privacynotprism.org.uk/news/2014/01/24/british-government-to-answer-fast-track-spy-challenge/"
Given this prompt I'd like to invite the academy to consider again the possibility of creating a network of digital rights cyberlaw clinics to provide ORG and their forthcoming legal director with pro bono support in critical cases.
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Friday, January 17, 2014

BBC ignorance on mass surveillance again

I was listening to the BBC Radio 5 Live station on the way back from Milton Keynes this evening. They noted President Obama made a speech about reforming NSA practices.

Around about 5.55pm they spoke to a correspondent in Washington. She got almost everything about the Snowden mass surveillance revelations wrong.

She uncritically repeated the myth that the 9/11 attacks would have been prevented if only the US intelligence and security services had known where Mohamed Atta was when he had made a phone call to a terrorist suspect in Syria. She assumed  the magic terrorist catching mass surveillance apparatus now run by the NSA would have pinpointed his location and led to his arrest.

Wrong.

Atta was known to the intelligence and security services and considered a threat. Police, intelligence and security systems are imperfect. Even in 2001 they processed vast amounts of imperfect intelligence information. At least one FBI agent believed Atta to pose a serious and imminent threat. That belief got lost in the noise of the intelligence information processes, suspects and issues the agencies were then dealing with, to the degree that they did not detain Atta or his associates and prevent the attack.

There was too much data noise in the system and they lost him. You cannot cure that excess of data noise problem by treating the entire population as suspects, engaging in suspicionless, blanket collection and processing of personal data. You cannot find the real terrorist by assuming everyone is a threat.

Mass data collectors can dig deeply into the digital persona of anyone but don’t have the resources to do so with everyone. The resultant pursuit of false positive leads mean the real bad guys often get lost in the noise, as happened with the 9/11 attackers including Atta who were known to US authorities but not considered sufficiently important to intercept. Finding the terrorist is a needle in a haystack problem, and you don't make it easier by throwing more hay on the stack. It is mathematically impossible for such mass surveillance to be an effective tool for catching terrorists.

The BBC correspondent also implied that there was no problem with the blanket, suspicionless, mass collection of personal data that is going on and that Obama's plan to continue this practice but privatise it would cure most concerns.

Wrong.

I'm tempted to get into a long dissection of this dangerous meme but I'll keep it to a couple of points -

Blanket, suspicionless, untrammeled, mass surveillance is corrosive and wrong-headed. The implied notion that decimating privacy is not just the solution but the obvious solution to the security, terrorism or serious crime problem is naive. Spreading that invidious notion uncritically is irresponsible of the BBC.

Blanket, suspicionless, untrammeled, mass surveillance is dangerous no matter who the government tasks with the job of actually collecting, processing and storing the data.

There is no magic computer solution to the rare preventing terrorism problem.

Don’t get me wrong. Law enforcement and security services need to be able to move with the times, use modern digital technologies intelligently in their work and through targeted data preservation regimes – not a mass surveillance regime – engage in technological surveillance of individuals about whom they have reasonable cause to harbor suspicion. That is not, however, the same as building an infrastructure of mass surveillance.
 
The BBC has an appalling record on the reporting of the Snowden affair. I know there are some very smart people in the BBC who get the serious implications of what Edward Snowden has put into the public domain. But the collective ignorance of the corporation as a public service broadcasting institution has almost gone so far as to have become a public menace.

It's hard to decide if their failures are worse when they follow the government wish for them to ignore the issues or when on the odd occasion they do get round to it, it is often to spread the corrosive memes of governments caught in the act... "nothing to hide nothing to fear", "only there for your protection", "essential for national security", "privacy must be balanced with security"...

As a result of their complete failure to fulfil their public service remit on the Snowden affair, every suit, producer, presenter, correspondent and journalist at the BBC should be made to repeat at least a hundred times a day:
Quite simply an infrastructure of mass surveillance is not conducive to the public good.
Perhaps that might be a little long for the attention span the corporation believe they cater to.  How about
Mass surveillance is not conducive to the public good.
Maybe something a little simpler: 
Mass surveillance is bad for you and it doesn't work
That might do it.
Mass surveillance is bad for you and it doesn't work
Mass surveillance is bad for you and it doesn't work
Mass surveillance is bad for you and it doesn't work...
To the good folk at the Beeb who do get Snowden - I know how frustrating it can be when an institution you care about gets really important things wrong.  Good luck with what will undoubtedly be heroic, exhausting, painful and sometimes risky internal efforts to turn your supertanker round.

BBC page screening parts of Obama's NSA reform speech.

Channel 4 News on the speech here.

Update: thanks to @eldonnn for alerting me to the error in my original post.
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