Was lack of copyright one reason for Germany's industrial expansion?

Eckhard Höffner has produced an nominally interesting piece of research on The History and Nature of Copyright, reportedly comparing the state of copyright law and the market for books in the UK and Germany in the 18th and 19th centuries. Unfortunately English translations of the two volume treatise (each also sadly priced at 68 euros) are not available yet but there's a nice article in Der Spiegel about his thesis.

"Did Germany experience rapid industrial expansion in the 19th century due to an absence of copyright law? A German historian argues that the massive proliferation of books, and thus knowledge, laid the foundation for the country's industrial might...

Germany experienced an unparalleled explosion of knowledge in the 19th century.
German authors during this period wrote ceaselessly. Around 14,000 new publications appeared in a single year in 1843. Measured against population numbers at the time, this reaches nearly today's level. And although novels were published as well, the majority of the works were academic papers.

The situation in England was very different. "For the period of the Enlightenment and bourgeois emancipation, we see deplorable progress in Great Britain," Höffner states...

Even more startling is the factor Höffner believes caused this development -- in his view, it was none other than copyright law, which was established early in Great Britain, in 1710, that crippled the world of knowledge in the United Kingdom.

Germany, on the other hand, didn't bother with the concept of copyright for a long time. Prussia, then by far Germany's biggest state, introduced a copyright law in 1837, but Germany's continued division into small states meant that it was hardly possible to enforce the law throughout the empire.

Höffner's diligent research is the first academic work to examine the effects of the copyright over a comparatively long period of time and based on a direct comparison between two countries"

There's is nothing necessarily new in the idea that ignoring (or lack of) copyright lead to the widespread production and distribution of cheap books - Charles Dickens spent quite a while touring the US trying to get them to respect his copyrights.  But it is nice to see some reportedly rigorous empirical academic research being done on this.  Given my German is embarrassingly poor (or probably more accurately described as practically non existant) I'm going to have to wait for the English translation of the work before I can engage with it properly. On the Dickens situation it's worth noting that though he didn't get what he believed were his just financial rewards from publishing royalites in the US, apparently more than 20% of the value of his estate when he died had been derived from his speaking engagements on his final US tour.  There may or may not be a lesson there for modern creators.

Report: Health professionals involved in Bush administration torture

From GritTV:



"A recent study revealed that physicians with the CIA's Office of Medical Services were more deeply involved in torture than was previously thought--that doctors and psychiatrists actually helped interrogators design "enhanced techniques" that passed the Bush administration's requirements but would keep prisoners alive and without the severe physical injuries that even that regime admitted were torture."

Newport (Ymerodraeth State of Mind)

This is a clever parody:



If the recommendations of the Gowers review on "reforming copyright law to allow individuals and institutions to use content in ways consistent with the digital age" had been put in place it might even have been permissable under UK law. However, the law hasn't been changed to permit parody and YouTube got a takedown notice from EMI and duly deleted another neat piece of creative work built on contempory culture. (It might even be that the above version has been removed by the time most readers get here). There has followed the usual whack a mole game, as it gets taken down in one spot it gets put up elsewhere.

Another reminder, not that we needed one, that most of 20th and 21st century culture is unavailable as raw materials for modern creators to use.

Perfect 10 v Google: Google substantive win on safe harbours

The latest P10 v Google ruling has been issued by Judge Matz at the Central District Court in California.  It's largely a win for Google claiming safe harbour protections under the DMCA.  The section of the decision that stood out was the judge's outline of the amount of work Google would be required to do just to investigate whether there may have been copyright infringement of just one of the 70,000 or so images under dispute. (Section B, p9 - 25) Extracts below:

"A. Threshold Requirements for Safe Harbor Under All Three Sections 
...the Court concludes that Google employs an
adequate repeat infringer policy and practice...

B. Safe Harbor For Web and Image Searches Under Section 512(d)
(“Information Location Tools”)
As discussed above, in order to find the copyrighted work to which Figure 5
corresponds, Google would have to search through either the perfect10.com website or
through a folder containing over 15,000 P10 images that P10 had submitted with its June
28, 2007 DMCA notice. Poovala Decl. ¶ 50, Ex. N3.
Thus, in order to process a single allegedly infringing URL, Google would have to
go through at least eight steps—(1) review the cover letter; (2) review the spreadsheet;
(3) insert Disk I; (4) open the “ALL LARGE ARE P10” folder; (5) open the
“big.supereva.com” folder; (6) open the “amy large 2.png” file; (7) determine the image
URL for the image in that file notwithstanding that the URL was truncated; and (8) refer
to the folder sent with a separate DMCA notice containing the 15,000 P10 images in
order to find the copyrighted image that corresponds to the “amy large 2.png” file.
Google might have to complete this process for many, if not all, of the 70,000 distinct
files contained in the DVDs (including some files that each contain hundreds of pages of
images), as well as for the external hard drive submitted with Ex. N3, which contained at
least 46,187 pages of material. See Khan Decl. ¶¶ 6, 13, 19. This would be even more
onerous than the situation in CCBill, where the Ninth Circuit found it was improper to
require the defendant to “first find the relevant line in the spreadsheet indicating
ownership information, then comb the 22,185 pages provided by Perfect 10 in order to
find the appropriate image, and finally copy into a browser the location printed at the top
of the page—a location which was, in some instances, truncated.” CCBill, 488 F.3d at
1113.
At the hearing, P10 voiced its concern that this Court’s ruling would prevent it
from including collections of infringing images as supporting evidence for otherwise
valid DMCA notices. Not so; P10 remains free to include additional supporting
evidence, such as screenshots, with the material it submits to a service provider.
However, at a minimum, the essential elements of notification—the copyright owner’s
attestations of ownership, nonlicensed use, and veracity of the notice; contact information 
for the complainant; identification of the copyrighted work; and identification of the
infringing material (including the location of that material and if necessary, a specific link
under section 512(d))—must be included in a single written communication. Because the
Group C notices fail to provide all of this information in one place, they do not impute
knowledge to Google. Perfect 10 has therefore not raised a genuine issue of material fact
as to whether Google is eligible for safe harbor under § 512(d).

C. Safe Harbor for Caching Feature Under Section 512(b)
Google has moved for summary judgment that it is entitled to safe harbor under 17
U.S.C. § 512(b) for its caching feature. As discussed in footnote six, supra, it is
undisputed that Google’s servers do not store images found in its cache. The images
displayed on a cached page are made available to a viewer from their original source, if
they still exist at that source. CSUF(b) ¶ 7-8. Thus, P10's claims for infringement based
on images “located in” Google’s cache are really claims based on Google’s linking to
outside infringing content, and the preceding § 512(d) analysis applies. That analysis
concluded that Google is entitled to the § 512(d) safe harbor with respect to linking to
outside infringement for all of the Group A, all of the Group C, and some of the Group B
notices...
Court GRANTS Google’s motion for partial
summary judgment for its caching feature.

D. Safe Harbor for Google’s Blogger Service Under Section 512(c)... 
P10's only argument that Google has a right and ability to control infringing
activity on Blogger is that the infringing material is on Google’s servers and Google can
take it down after it has been uploaded by users. The mere ability of a service provider 
to remove content after it has been uploaded is insufficient as a matter of law to establish
the right and ability to control the infringing activity required by § 512(c)(1)(B). UMG
Recordings v. Veoh, supra, 665 F. Supp. 26 at 1112-13. P10 has not raised a triable
issue that Google has a right and ability to control infringing activity. Thus, the Court
need not consider whether Google receives a financial benefit from the alleged
infringement because it already meets the criteria for safe harbor under 17 U.S.C. §
512(c)(1)(B).
Thus, Google has demonstrated that it is entitled to safe harbor for its Blogger
service under 17 U.S.C. § 512(c) as a matter of law.

V. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
Google’s motion for partial summary judgment of entitlement to safe harbor under 17
U.S.C. § 512(d) for its Web and Image Search. The Court GRANTS Google’s motion for
partial summary judgment for its caching feature based on 17 U.S.C. § 512(d), without
having to assess whether it would be separately entitled to safe harbor under 17 U.S.C. §
512(b). The Court GRANTS Google’s motion for partial summary judgment of
entitlement to safe harbor under 17 U.S.C. § 512(c) for its Blogger feature.

Interesting decision and probably the first time I've ever seen full colour Windows screenshots (including a colour photograph) incorporated in a legal judgment.

XVIII International AIDS Conference: patents and access to medicines

The XVIII International AIDS Conference has been taking place this week in Vienna and I would recommend a terrific talk by Ellen ‘t Hoen, Senior Advisor UNITAID Medicines Patent Pool, 'A proposal for change: Managing patents to ensure access to AIDS medicines for all'

"Ten years ago, the world prepared to gather in Durban, South Africa, for the first International AIDS conferenceto be held on the continent most devastated by this terrible disease. At the time, the statistics were grim: only one in a thousand African people in need could get access to AIDS treatment, because the drugs were only available from originator companies who owned the patents on these medicines.  They came with a paralysing price tag of US$10,000 to US$15,000 per patient per year.

Through an immense joint mobilization of people living with HIV/AIDS and their organisations, their doctors and nurses, civil society, dedicated ministries of health, donor governments, and pharmaceutical companies, we have achieved today what most delegates at Durban thought impossible: access to AIDS treatment for more than 4 million people in the developing world...

The AIDS crisis and all its actors have caused a radical change in how we approach intellectual property in the field of medicine. This is reflected in legislative and policy changes, and changes in pharmaceutical companies’ business practices...

Before TRIPS, pharmaceutical patent policies and practices were diverse. For example, many countries did not consider patents on products such as medicines and food to be in the public interest and half of the countries actively excluded pharmaceutical (product) patenting altogether. This included a number of European countries such as Spain and Norway.

The WTO rules put an end to this when it required all member countries to introduce 20 year patents on medicines. As part of the WTO package, it was not possible for countries to opt out of TRIPS while becoming a member of the WTO, and the following years saw a wave of IP reforms in most developing countries to meet the requirements of the TRIPS Agreement. The policy space countries once enjoyed to design IP systems in line with their own development needs and priorities was rapidly shrinking...

In the late nineties, the potential effect of the changing IP rules on access to medicines was little understood, and interest in IP issues among the public health community was still rare.

A couple of things changed that:

In 1998, 39 drug companies and their representative body sued the new democratic South African government over amendments to its Medicines Act, which aimed to make low cost medicines more readily available. The companies asserted it was both unconstitutional and not compliant with the TRIPS Agreement...

Big Pharma vs. Nelson Mandela provided shock therapy. It was a call to action that pulled many different actors onto the stage.

In 1999 at the UN in Geneva, a group of NGOs and AIDS activists held a conference titled ‘compulsory licensing of AIDS drugs.’...

This caused a great deal of concern among the patent holders.

Thailand and Brazil were the first developing countries with AIDS treatment programmes that embraced the notion of universal access. They both heavily relied on the ability to produce low cost medicines in government facilities, illustrating the enormous cost reductions that could be achieved. (e.g., Thai fluconazole for 0.29 USD vs. 11 USD Guatemala negotiated price from originator, a 38-fold difference)...

Then, in April 2001 after a global and domestic public outcry under the leadership of the South African Treatment Action Campaign, the 39 drug companies dropped their case against the South African government. The landscape had dramatically changed. Access to medicines and the need to revisit the patent rules that govern them had become part of a larger political agenda and was no longer the exclusive domain of trade negotiators.

In November 2001, governments at the WTO Ministerial Conference – in an unprecedented move – adopted the Doha Declaration on TRIPS and Public Health. The Doha Declaration made clear that the TRIPS Agreement “can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all.” This represented the first significant push back to the relentless march to strengthen private IP rights without regard for societal consequences in poor countries...

The 500-word Doha Declaration on TRIPS and Public Health has been essential in making low cost medicines available on a large scale...

When India became compliant with TRIPS in 2005, it incorporated public health safeguards in its Patents Act...

The AIDS crisis has been an engine for change – not only in thinking about IP and Health -

• but also in the way health care is delivered through task shifting...
• in the role of civil society in decision making in global health...

Market competition for the early generation of generic ARVs resulted in prices per patient per year dropping by 99% over the past decade. Drugs that used to cost $10,000 per year are now widely available for $67 per year.

So, what is the problem?

First, the cost of treatment is increasing again because new AIDS medicines are likely to be patented in developing countries and thus more expensive. Even in India, the new ARVs are likely to be patentable...

Second, increasing numbers of people will need access to new generation treatments. These treatments in general are more widely patented and more expensive...

Third, we still need to expand access to first line medicines to people that do not benefit from them today...

Fourth, we need to be able to respond to new scientific knowledge and evidence; we need to find ways of making key products affordable and available on a wide scale...

Fifth, we are faced with a serious financial crisis that risks setting back the treatment achievements of the last 10 years."

It's a complex and hugely important story, very well told. We often hear of the "copyright wars" and entertainment industry struggles to protect their revenues. Indeed I've been pretty focussed on just that for the past couple of weeks, drafting a chapter on the Digital Economy Act for a book on the nature of information (a substantive draft of which I finally despatched to the editors yesterday, though all the tedious tidying up and formatting of references and bibliography etc. still need to be done). Yet this question of access to medicines is an illustration that the need for a balanced intellectual property landscape transcends stories of the hordes of the mass unwashed 'music thieves' on the internet and really can be a question of life or death. Highly recommended.

Mark Thomas on the then Digital Economy Bill

I'm writing a chapter on the Digital Economy Act for a book on the nature of information and was reminded of Mark Thomas's excellent assessment of the then bill in February this year:

ORGCON

Just a reminder that the first Open Rights Group conference is only a couple of weeks away. ORG say:

"We'll have training sessions about how to lobby your MP and more volunteer workshops. There'll also be discussions on the state of UK politics after #GE2010 and why this is a key moment to push harder for reform on digital issues from surveillance to copyright to DRM. The keynote speaker will be James Boyle, a founder of the modern movement to recognize, protect, and grow the intellectual commons. Sessions will include

• James Boyle on the future of copyright, in London especially for this talk
• Thriving in the Real Digital Economy: Cory Doctorow talks and then chairs a panel of artists.
• Digital Economy Act: What's Next? (Tom Watson, Eric Joyce, Julian Huppert)
• What is the 'Right to Data'? (Heather Brooke, Rufus Pollock)
• Opening up the Data Protection Directive: Can of Worms or Opportunity
• Dismantling the Database State (NO2ID, ARCH, Big Brother Watch) 
• Theft! A History of Music (Jennifer Jenkins)
• ACTA: A Shady Business (La Quadrature du Net, Becky Hogge)

Directions
The central London venue is well-served by public transport. These pages will help you travel to ORGCON by bus, underground (tube) and rail.

Accommodation
We want to help delegates with places to stay in London so let us know your needs. For now, you could try couch surfing!"

That's an impressive line up and I wish I could be there but personal committments dictate otherwise. They have 300 delegates booked up already to hear a very impressive range of speakers including James Boyle, Cory Doctorow and Tom Watson, Jennifer Jenkins and there'll be contributions from Liberty, NO2ID and Big Brother Watch.

Curing maths phobia

I've stuck the software version of the maths phobia cure I spoke about at GikiiV in Google docs.

http://docs.google.com/leaf?id=0B_aUKTaSgbLJMWM5ZjgxZTItYjZjOC00MWQzLTgwMzMtY2ZlYjhkMTliYTc1&hl=en&authkey=CKrbsvoI

http://docs.google.com/leaf?id=0B_aUKTaSgbLJZmU4MjExYmUtYTUzMC00MmRiLThiZDUtYzlhZmI4MjA5YWE1&hl=en&authkey=COPy1fgJ

and Andres will hopefully be making it available on the Gikii website shortly too.

It comes with a creative commons attribution, non commercial, share alike licence.  Tony Nixon developed the game and Karen Shipp produced the software. Both are gifted teachers.

I'm afraid it's Windows based (the OU was exclusively WinTel in the days we produced this stuff) but we'd be delighted if someone wants to adapt for Mac and Linux and other platforms.

In addition to the algebra game that I demonstrated at GikiiV it also covers a few extra things like circles, radians, degrees, angles and triangles, discounted cash flow and interest, brackets and substitution - basic numeracy we used to teach in our old Open University T102 Living with Technology course.

To try it you just need to download the zipped files, extract them (with WinZip or equivalent) to a single folder on your PC, double click on num3.exe and away you go.

The pre-test covers a range of stuff - it does a basic assessment of where the user is and then recommends parts of the old T102 course the student should study and which parts of the (CAL) software they should work through.

If you just want to start straight in with the counters game, then click on 'Section' and '1 Introduction to the game' and off you go.  We've been using this game at the Open University to cure algebra phobias for many years and as far as I know it has never failed in the classroom. I'd be interested in hearing readers experiences with it

Creative Commons Director hits back at ASCAP attack

Eric Steuer has hit back at the American Society of Composers Authors and Publishers campaign to fight creative commons.

"Dear Creative Commons supporter, 

Last week, ASCAP sent a fundraising letter to its members calling on them to fight "opponents" such as Creative Commons, falsely claiming that we work to undermine copyright.*

Creative Commons licenses are copyright licenses – plain and simple. Period. CC licenses are legal tools that creators can use to offer certain usage rights to the public, while reserving other rights. Without copyright, these tools don't work. Artists and record labels that want to make their music available to the public for certain uses, like noncommercial sharing or remixing, should consider using CC licenses. Artists and labels that want to reserve all of their copyright rights should absolutely not use CC licenses.

Many musicians, including acts like Nine Inch Nails, Beastie Boys, Youssou N'Dour, Tone, David Byrne, Radiohead, Yunyu, Kristin Hersh, and Snoop Dogg, have used Creative Commons licenses to share with the public. These musicians aren't looking to stop making money from their music. In fact, many of the artists who use CC licenses are also members of collecting societies, including ASCAP. That's how we first heard about this smear campaign – many musicians that support Creative Commons received the email and forwarded it to us. Some of them even included a donation to Creative Commons.

If you are similarly angered by ASCAP's deceptive tactics, I'm hoping that you can help us by donating to Creative Commons – and sending a message – at this critical time. We don't have lobbyists on the payroll, but with your support we can continue working hard on behalf of creators and consumers alike.

Sincerely,

Eric Steuer

Creative Director, Creative Commons

* For background on ASCAP's anti-Creative Commons fundraising campaign, see Boing Boing, Techdirt, ZeroPaid, and Wired."

Well said.

Gikii V: the voyage home

The Gikii conference returned to its birthplace in Edinburgh University this year. The ever amusing (and now Professor) Burkhard Schafer has understatedly described Gikii as the conference without any of the boring papers; and I have to say that in five years of being privileged to participate in this ecclectic and thought provoking cyberlaw gathering I don't recall a single dud talk. The event, the company and the engagement are always terrific value.

The B2fxxx award (the Gikii BAFTA?) for the best Gikii comedy performance of the year this year gets shared between:

(The now Dr.) Daithí Mac Síthigh for his "What We Talk About When We Talk About Google" on the places Google reaches from social conversation through to the courts and how the YouTube v Viacom decision caught us by surprise

and

Trevor Callghan for "GOOGLE WANT FREND!" or thoughts on Google and social networking and the contrast between Google and social networking giants - Google is all about data, Facebook is about people.

The situation comedy award goes to:

Hugh Hancock for "Stories for Laws: the narratives behind the Digital Economy Bill, which ones worked, and most importantly: why?"

The 'I hadn't thought of it like that before' award goes to Steven Hetcher for "Conceptual Art, Found Art, Ephemeral Art, and Non-Art: Challenges to Copyright's Relevance" on  the need to lose the fixation requirement in copyright law to avoid discrimination against non fixated art creators e.g. mime or nature artists.

The 'painting a fuller educational picture of the effects of policies in practice' award goes to Andrew Cormack, ("When a PET is a Chameleon") and Nicolas Jondet, ("The French Copyright Authority (HADOPI), the graduated response and the disconnection of illegal file-sharers").

The current affairs award goes to Lilian Edwards ("The Revolution will not be Televised: Online Elections and the Future of Democracy?").  (Since widely respected Lilian independently confirmed many of the conclusions I came to in a talk I gave on the Digital Economy Act recently, I can now use that talk with more confidence as the basis of a book chapter I need to complete on information policymaking next month.  So Lilian also gets the bonus 'thank goodness I now realise I'm not nuts, the world really does work like that' award).

Lilian Edwards and Hugh Hancock share the 'thanks for helping refine my ideas on the DEA' award.In fact I hope Hugh won't mind too much if I add one of his key lessons about the power of narrative to my conclusions.  He spoke very engagingly about how people get convinced by stories.  The Digital Britain Report he felt had potentially some sensible ideas about how to tackle file sharing but the unelected Lord Mandelson having met media mogul David Geffen decided to ignore the report and railroad the Digital Economy Bill through parliament.

Hugh explained how Lilian Edwards had been very active in advance of the passing of the DEA, explaining the unintended consequences of doing so.  How opposition grew in parliament because MPs had an unprecedented amount of mail about it.  How amendments were proposed in the House of Lords.  How the Open Rights Group and others objected.

And yet the good guys got pummeled because the government passed the bill with the agreement of the other two main front benches in the wash up of legislation before the dissolution of parliament.

Why?

Well before the law comes public good and before that you have to tell MPs stories.  In the case of the DEA some stories they believed, some they didn't.

Music industry story: 1000s of stuggling young artists are having their work stolen and the DEA will fix it.

Good guys story: Record labels scared of the Net, so lobbying to save themselves and don't care about side effects

Photographers story: s43 on orphan works will let big corporations steal from little photographers so have to kill s43. (They got their wish).

The thing about stories is some play better than others.  All need a protagonist.  The person who suffers most in the story. If your audience doesn't empathise with your protagonist your story is dead.

The music companies' protagonists (Pete Wishart 'protect the human rights of young artists') are instantly attractive and easy to sympathise with.

The good guys protagonist is you, the audience and this doesn't translate well into a story.  It's too esoteric and you can't really empathise with yourself.

IF you want to grab your audience it also helps if something bad happens to your protagonist at the start.

The music labels hit the ball out of the park on this!

It also helps if your protagonist is pretty.  Geeks are not pretty.

In addition you have to be able to explain how the story is really important before your audience wander off and, largely, people who aren't geeks don't see the DEA as a priority. The impact is too abstract and too far in the future.

Finally you need an emotional payoff.  The emotional payloads for the 3 DEA stories are different.  In the case of the music companies and the photographers you have the righteous defence of justice for the vulnerable little guy - the young artist and photographer both getting ripped off.  This plays well to politicians, most of whom, at least in the early days, get into politics with honorable intentions.  The extra bonus is in relation to the dealing with the envy of people who dare to take for free something these vulnerable creators have had to work so hard to produce.

The good guys story had two emotional payoffs:
- fear (people will get cut off the Net, people will be censored)
- anger (corrupt music labels are distorting our legal structures)
Unfortunately the fear message has to compete nowadays with loads of other fear messages (terror, immigration, think of the children, crime, etc.) for attention and this one is nowhere near some of the others in terms of potency.  The anger message plays really well with geeks but not much with anyone else.

So the bottom line was the good guys lost because the music companies told a better story.

In any case, GikiiV was as ever a great conference.  Makes me realise again that I should spend a lot more time than I do on this stuff.  The day job is calling so I have to sign off but final honable mention goes to Andres who got the biggest laugh of day 1 with his Norton Anti-Virus mirror which tells you what you're suffering from in the morning; and Burkhard who talked (joint paper with Wiebke Abel and Radboud Winkels) about Google 2001 (don't be evil), Google 2010 (be good our way or else) and an understanding of databases as part of the problem, but realising we can make them part of the solution, of privacy in a digital age.  Privacy is a collective good – privacy protection should be a collective effort.

Privacy needs you!

PS My own contribution was on curing people with a phobia for mathematics. I'll be making a software version available to Gikii organisers when I get back to my office later in the week.  A copy of my earlier DEA talk slides is below:

Dea dangerous downloaders act

View more presentations from rcorrigan.

World cup sponsorship lock in

Football pundit Robbie Earle got sacked from ITV last week for passing on World Cup tickets to third parties, although he apparently didn't make any money from the process and paid for the tickets provided to him by ITV.

In 2006 FIFA expressed "disapproval" when world cup tickets allocated to FIFA vice president Jack Warner were sold on at a reported profit of £37,000 and then declared the matter closed. (Some newspapers reported the money made at £500k).

Unfortunately for Earle some of his tickets got passed on to a Dutch brewing company, Bavaria, who sent about 36 pretty young women in orange mini dresses (with no logo) to the Holland v Denmark game. The women were ejected from the stadium for "ambush marketing", questioned by police and threatened with jail. Bavaria is not one of the approved paid up sponsors of the world cup and presumably that means the colour orange is banned, in case it might be associated with an 'illegal' commercial interloper. It might be worth asking if any other colours require official approval before being brought into stadiums.

FIFA have history with Bavaria customers. At the last World Cup in Germany up to a thousand fans waiting to gain entrance to stadium for the Holland v Ivory Coast game were made to remove their orange (this time logoed, I believe) trousers before being allowed in.

FIFA says:

"In the world of football, fair play is a principle that has an important role to play both on and off the pitch. The beautiful game's incredible success story, particularly in terms of the FIFA World Cup ™, not only attracts fans and official partners, but also the ambush marketing activities of companies seeking to secure themselves a slice of the rewards illicitly without offering any financial support in return, thus jeopardising the viability of organising a privately financed sporting event of the magnitude of the FIFA World Cup with its cumulative worldwide TV audiences of over 26 billion...

FIFA itself decides if infringements are to be pursued and determines the appropriate way to do so. Before and during the 2006 FIFA World Cup ™, inaccurate reports frequently appeared in the media claiming that the sale of World Cup buns or World Cup bread by small local bakers was outlawed by FIFA and that the governing body was taking vigorous action against each and every infringement. These reports were, of course, complete nonsense, because there were no instances of FIFA taking such steps against a small business. In fact, FIFA's primary objective is to put a stop to the systematic, commercial abuse of its event marks on a wide scale in order to safeguard the rights of its partners. "

The commercial rights protectionism that resulted in the detention of the women at the Holland v Denmark game just seems wrong, more so in a country where most of the indigenous population can't even afford the cheapest tickets to see the matches. But South Africa passed a law in the run up to the World Cup that made ambush marketing a criminal offence.  That's right, creative one-upmanship against a commercial competitor (Budweiser, I guess, in Bacaria's case) that happens to have forked out sponsorship money to FIFA is a crime.

Commercial sponsors and FIFA want their pound of flesh and associated rights protection but when it is excessively enforced by the host nation's police authorities, and there are similar plans to do so at the 2012 Olympics in London, then a line has been crossed.  The criminalization of the act of gathering together 36 cheerful people in a football stadium is just beyond a joke.  If a FIFA sponsor has a legitimate legal dispute with a competitor then let their lawyers fight it out in the civil courts or through negotiation, not through the police and criminal justice system. 

As it stands the two women who organised the gathering of the 36 have had their passports confiscated and are now facing jail terms. Robbie Earle has lost his job.  Ordinary South Africans can't afford World Cup match tickets. Jack Warner remains on the FIFA executive committee.

EU Parliament event on censorship and freedom of expression

The video of the session at the EU parliament on freedom of expression in Europe earlier this week is now available.

9 things you need to know about the Internet

John has written a terrific preview of his forthcoming book in this week's Observer, The internet: Everything you ever need to know. It's not quite everything you need to know about the Net but it covers nine things that provide a really sound intellectual framework for thinking about it. So what are the nine things?

1. It's too early to deduce the long term impact of the Internet and the closest historical analogy we have regarding a technology that transformed the world, in ways beyond imagining, is the printing press.

2. The Web is only one kind of traffic on the infrastructure (signals and tracks) that is the Net.

3. Disruption - like the Web and Napster - is a feature (not a bug) of the neutral architecture of the Net designed by Vint Cerf and Robert Kahn. It was a design choice to disable central control through simple TCP/IP protocols.

4. Ecology is a better model through which to view the Net than economics. (I couldn't agree more and even gave a talk at Gikii last year about this).

5. The Net makes the world more complex. We and our private and public institutions are not great at dealing with complex systems.

6. The Network is now the computer i.e. cloud computing is here to stay and we haven't thought through the implications of this in any depth.

7. The Web is evolving towards Web 3.0 (Berners Lee's semantic Web) and beyond.

8. Huxley (we'll be destroyed by what we love) and Orwell (we'll be destroyed by what we fear) may both have been right. Will Google make us stupid and will the Net become a perfect totalitarian surveillance tool?

9. Our intellectual property landscape is out of sync with reality and in desparate need of reform.

John reckons the first five are things any reasonably informed individual should know, just as we would expect people to have a basic grasp of important issues like politics, economics or the environment. Items 6 and 7 additionally are base level knowledge for information and related professionals. I'd argue that practioners and policymakers should equally have a deep working understanding, similarly, of 8 and 9. Unfortunately these latter two, the surveillance society and intellectual property, currently reside in the esoteric walled garden realms of academics, civil rights activists and a few narrow bands of specialist professionals. I have little hope that policymakers will get this stuff any time soon. (Witness the unfortunate decision of Ofcom last week to approve BBC HD DRM).

Essential reading.

RSA Animate - Drive: The surprising truth about what motivates us

This, from RSA Animate, is very clever:



Thanks to Glyn Moody and Ray Dowd for the pointer.

Ofcom approve BBC's move to attach DRM to HD

Ofcom have sadly approved the BBC's application to add DRM restrictions to their HD signal.

In an open letter to Ofcom and a follow up letter to Michael Lyons, the Chairman of the BBC Trust, Open University academics pointed out why this was a really bad idea for

• licence payers
• the disabled
• UK industry
• innovation
• education

The BBC scheme involves not the scrambling of the audio and video signals themselves but of the accompanying digital instructions for decoding these signals. The 'free' broadcast signal will now merely come locked behind a DRM shield that people will need specially licensed equipment to view. Ofcom's approval of the BBC proposal will undermine the organisation's public service obligations under the BBC Charter, and it is difficult to reconcile Ofcom's repeated past declarations that a broadcast flag DRM regime would be inappropriate for the BBC with the decision now declaring that they approve of it!

The heart of the summary of the decision is at paragraphs 1.5 and 1.6:

"1.5 Our aim in assessing the BBC's proposed licence amendment has been to determine whether this change would deliver net benefits to citizens and consumers by ensuring they have access to the widest possible range of HD television content on DTT, whilst not unduly restricting their ability to make use of content or the range of receiver equipment available in the DTT receiver market.
1.6 In response to the Consultation the BBC, ITV and Channel 4 provided confidential details on the acquired HD content that would be affected if an effective content management framework was not provided on the DTT platform, including the need to 'blank out' some HD content. This evidence was supported by the views expressed by representatives of rights holders. Based on this information, and the increasing use of content management on other digital TV platforms, we have concluded that the BBC's proposal would widen the range of HD content available on the DTT platform, in particular high value film and drama content, and that this would bring positive benefits to citizens and consumers and also help ensure that the DTT platform is able to compete on similar terms with other digital TV platforms for HD content rights."

Now if you read that carefully, it is saying the reason for the decision to approve DRM was that they seriously considered 'confidential', i.e. secret, information provided by BBC, ITV and Channel 4, as well as the story spun by rights holders.  Even in the US where intellectual property privileges are handed out on request like smarties, the regulators rejected such a broadcast flag.  Yet somehow, within a period of less than a year Ofcom goes from being totally opposed to approving of it.

They have completed ignored our representations that such a move:

• Undermines the BBC's obligations under their charter
• Discriminates against those those who are visually- and hearing-impaired
• Does not protect the content of rights holders - that's right it doesn't prevent copyright infringement
• Undermines backwards compatibility
• Introduces barriers to education
• Is anti-competitive

(See the OU letter for details of all of these).

The Communications Act 2003, Part 1, section 3, outlines the General duties of OFCOM:

(1) It shall be the principal duty of OFCOM, in carrying out their functions—
(a) to further the interests of citizens in relation to communications matters; and
(b) to further the interests of consumers in relevant markets, where appropriate by promoting competition.

The Ofcom get out clause for their u-turn on BBC DRM is that "Ofcom's role in relation to content management is limited" (para 1.10).  They have, through this weak excuse, and the BBC DRM decision attempted to avoid their obligations under the Communications Act.  It is completely unacceptable.

The Open Rights Group get it spot on:

Ofcom have also dealt their credibility a serious blow by justifying their decision by saying this “will allow broadcasters to control the multiple copying of HD content and its retransmission over the internet”.
They accepted the spurious argument that HD content may not be provided in the UK without copy protection – despite the fact that unencrypted broadcasts occur in every other major HD market. In addition, the BBC has failed to name a single programme that would be withdrawn without the application of DRM to its broadcast.
Restrictive technologies create two results: they rig markets, removing competition and innovative technologies; and they encourage people to find ways round them. The results will harm competition and will not further either BBC or Ofcom's legitimate aims. But it will bring calls for more restriction once these measures fail.
They have taken a decision which pushes technology further towards a copyright-centric model of control, where only copyright holders have the right to decide how everyday devices are allowed work.
In this new regime, people with hearing problems will be prevented from modifying their equipment to deal with their problems. Software developers will be stopped from making your TV, computer and mobile phone work properly with each other. Your choice of operating system will determine whether or not you can enjoy BBC HD broadcasts to their full extent. And HD devices will have to be built to work in the UK alone, reducing competition and pushing prices up.
Ofcom’s remit is to protect consumer interest and competition. They have failed to do either."

 I believe it is time for the BBC Trust to intervene on the grounds of public interest. Failing that a judicial review and/or recourse to the EU?  This story has only just begun.


(I did make a CamStudio video about my reaction to the decision earlier this morning but there are odd audio synchronisation problems with it - the audio and video are initially in sync but gradually the video gets further and further ahead of the audio.  There's a cumulative offsetting problem but I've haven't been able to locate the source of it.  If anyone has any ideas I'd appreciate it.  I'm using CamStudio lossless codec 1.4 compression; playback rate 25 frames/sec, frame capture every 41 milliseconds; MPEG layer 3 audio compressed format, video & audio interleave 41 milliseconds; and 44.1 kHz, mono, 16-bit recording format.)

Update: I've amended the link to our letter above because Ofcom have moved it to http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/responses/Blaine_Price.pdf

World Cup song, sampling and Bridgeport Music

I've been meaning to write about the World Cup song by Shakira recorded and distributed by Sony.  And though I'm supposed to be somewhere else at the moment am prompted to these few thoughts by an email from a colleague on the subject.  Shakira's song is up on YouTube:



It samples/copies a well known song, Zangalewa, by Cameroonian band Golden Sounds from the mid 1980s.



Cameroonian blogger, Dibussi Tande, who I learn of via the Langaa Research and Publishing Common Initiative Group (Langaa RPCIG) got there ahead of me, however, and proved to be much more eloquent and comprehensive about the issue that I would have been.

"In 1985 the Golden Sounds, a group composed primarily of members from Cameroon’s Presidential Guards released an album whose title track Zangalewa was based on a parade song which was popular with the rank and file of the Cameroonian army and whose origins could be traced back Cameroonian riflemen who took part in the Second World War.Zangalewa became an international hit which transformed Emile Kojidie, Victor Dooh Belley and group leader Ze Bella into celebrities (to the dismay of the army brass who subsequently created the conditions that led to the disbanding of the group a few years later – but that is another story). The group also included a few members who were not in the military such as Annie Anzouer who with Ze Bella performed some of the group’s most popular tunes such as Maladie difficile à soigner and the Un bébé, and who later went on to have the most successful solo career among all Golden Sounds members. Fast forward to 2010. Ze Bella who had retired from the Presidential Guards in 2002 was enjoying a quiet retirement in his village when he got a call from an acquaintance in France informing him that Shakira had just released a version of Zangalewa. This information was soon confirmed by Emile Kojidy another Golden Sounds alum now living in the United States. They were both right...

To Cameroonians and many African, the origins of the song was no mystery as they instantly recognized it as a remix of “Zangalewa”. Thus began a frenzied online campaign to alert the world that this was not a Shakira original but a remix. The task was made all the more easier thanks to videos of the Golden Sounds performing Zangalewa that were available on the web. The campaign picked up steam as the international media began taking an interest in the story...

Faced with the barrage of worldwide negative publicity Sony and Shakira (probably with the prodding of FIFA which did not want anything that could mar the World Cup) quickly settled. They agreed to credit Zangalewa and began working out details for a financial compensation. Thus, when on May 5, Fifa officially confirmed that Zaminamina, which was now called “Waka Waka (This Time for Africa)”, was indeed the anthem of the 2010 World cup, it also stressed that “The song was written by Shakira, the world-famous singer from Latin America...The chorus is similar to that of a popular Cameroon song made famous by Golden Voices in particular”."

Just one final thought - how would Shakira's sampling of Zangalewa stand up to the US Court of Appeals decision in the Bridgeport Music case in 2006, when the judge said that sampling a single note might be acceptable but anything more is not permissable.

First ever ORGCon 24 July

Unfortunately I'm not going to be able to make it due to a wedding but Jim Killock has alerted me to the first ever ORG Conference:

"James Boyle, Cory Doctorow and Tom Watson are heading up the first ever conference dedicated to digital rights in the UK. Top of the agenda at ORGCon is tackling the Digital Economy Act and the new Government.
Book your ticket now for the first ever ORGCon on 24 July
Sessions will include

• James Boyle on the future of copyright, in London especially for this talk
• Cory Doctorow talk and panel on how artists can make copyright work for them
• What MPs are doing about Digital Economy Act (Tom Watson, Eric Joyce, Julian Huppert)
• What does the 'Right to Data' mean? (Heather Brooke, Rufus Pollock)
• Opening up the Data Protection Directive: Can of Worms or Opportunity (Privacy International)
• Dismantling the Database State (No2ID) 
• Theft! A History of Music (Jennifer Jenkins)

There are a limited number of tickets for this bonanza event.
Book now to avoid disappointment! Special discount rates for new and existing supporters."

£10 is an absolute bargin given that line up, so sign up and enjoy!

Lessig kenote at CC Asia

Lessig expresses anxiety about the growth of controlled platforms like Facebook and Apple in his keynote address to the CC Asia conference.

Irritatingly, when I click for the embed code, YouTube notes "Embedding disabled by request".

By whose request might I ask?

Lessons on copyright from the fashion industry

Johanna Blakley of www.readytoshare.org has done a terrific TED talk on intellectual property in the fashion industry and the lessons it might provide for other creative industries, or as TED billed it Lessons from Fashion's Free Culture. It's an updated version of the talk she did at iSummit 2008 in Sapporo and the Creativity & Copyright: The Surprising Tale of the Fashion Industry at the Lear Center, also in 2008, but it is still hugely relevant. Thanks to Glyn Moody via twitter for the link to the TED talk.



Blakley speaks engagingly about the vibrant ecology of creativity in the fashion industry despite the fact that fashion is not protected by copyright.  The only IP protection they have is trademarks - they can own their names and trademark signs etc. but not prevent someone from stealing each others' seams, colours, shapes, hemlines, trends.  And in fact fashion trends exist and move quickly precisely because of the ability to copy without having to ask permission.

Many fashion designers complain about this copying and have resorted to lawsuits to prevent it but the courts, even in the US, have consistently declared that 'apparel is too utilitarian'  to qualify for copyright protection.  Designers can own a copyright in a drawing of a dress but can't own a copyright in the dress - the dress is out there to be copied.

So how can the high end (ie expensive) fashion companies stay in business when a mulititude of knockoffs (including counterfeits with the trademarked logo) in cheaper stores and market stalls?  Well though it's not rocket science to it figure out, Tom Ford an ex Gucci guru, has said "the counterfeit customer is not the Gucci customer."  Imagine that.

The thing that jumps out from Blakley's talk, though, is her graph of the gross sales of goods from copyright intensive industries (film, music and books) compared with that of the low copyright industries (automobiles(can't copyright look and feel of a car), food (can't copyright a recipe in theory i.e. set of instructions), fashion and furniture (3 dimensional utilitarian objects can't be copyrighted etc.).  I've done a rough version of the graph below:

Comparatively speaking the copyright intensive part of the entertainment industry represented by movies, books and music is tiny in relation to the output of industries not protected by copyright.

Other things, btw, that can't be copyrighted include jokes (eg one liners though it hasn't stopped folks like Ashley Brilliant registering the copyright in more than 7000 aphorisms and Leo Stoller claiming to own words like "stealth" and "hoax" - no, I'm not kidding), hairstyles, magic tricks, fireworks, the rules of games (eg rules of monopoly), perfume (though you can patent the chemical combinant and trademark the smell).  And interestingly enough though they are entitled to copyright tatoos, tatoo artists find that socially unacceptable - the subculture values sharing.  Yet there is very little scholarship or policymaker interest in thriving low IP industries which might give us a clue to the business models for the entertainment industry of the 21st century.

Blakley essentially wants us to have a deeper understanding of what facilitates creativity and innovation and the importance of sharing, openness, fair use doctrine and the lessons of free culture from the low IP industries.  Most of us have a very vague grasp of all of these things and until we stop equating sharing with theft and treating openness and valueless, she doesn't believe we're going to make a lot of progress.  On the contrary, if we keep buying into the "property is good, therefore more property is better matra" crativity and innovation will get increasingly controlled and stifled.

Interesting.

Update: Apologies for the formatting problem with the gross sales graph which hopefully are now corrected.

Conversations with seven Science 2.0 pioneers

The New York Academy of Sciences has been interviewing pioneers of science 2.0, including James Boyle.

NYAS: What do you see as the current problem with access to science knowledge?

Boyle: Science knowledge generation has gone digital, but our method of knowledge processing is still analog. Most scientific literature is behind pay walls. You may be able to find it with Google, but you probably can't read it. That's Science 1.0: You don't have access unless you're sitting in a great research university where it's free, and you certainly can't send a robot to crawl the literature to create a mini index of all the articles, and cross index them and see whether, for example, a particular gene known by multiple names is referenced by them.

NYAS: Is the prestige attached to publishing with closed journals part of the problem?

Boyle: Right now, if your article gets into Nature or Science it's a big help in getting tenure and grants and retaining grad students. That's important—we should encourage people to publish. But perhaps we could refine the incentives so that you get more of a bump for publishing openly. I would like to see people's resumes say when their database has been downloaded more than 1,000 times. You want the prestige economy to reward the pro-social behavior, not the anti-social behavior.

NYAS: So, how can incentives be changed?

Boyle: When you've got centrally funded science, it should be a pretty easy cascade to start. The funders get much more bang for their buck if they do this. You're actually saving the public money and increasing the yield of every research dollar.
Once the idea can be explained to people, it makes an enormous amount of sense. I tell scientists, "There are a billion people connected to the, the Web. At least one of them has a smarter idea about what to do with your data than you do."
Their first take, though, is "Oh, great. You're going to force me to annotate my data, and put everything out there. You're going to troll it and publish ahead of me. I'm going to get no credit, I'm not going to get tenure, and I'm going to end up living under a Dumpster. And you're going to win the Nobel Prize." That mindset is the big obstacle.
We need funders to say that a condition for the funding is data deposit in an open, accessible format. That's beginning to happen—the public-access mandate from NIH is beginning to make the literature openly available. But we're just at the beginning.

NYAS: Beyond social/cultural issues, what else needs to change?

Boyle: Nobody ever wants to fund infrastructure because it's boring, but enabling Science 2.0 is the Eisenhower freeway system of the mind. And then we need to get past the legal restrictions so that we can have technologies that troll for data, make sense of it, and import it mechanically.

NYAS: How is Science Commons addressing those issues?

Boyle: We're sort of the public interest lawyer to the sciences. Say you want to use a database which was generated in Europe. We come up with a data protocol, a legal tool, which says "this gets your data free to the greatest extent possible in every jurisdiction in the world that we have lawyers in" (and we have lawyers pretty much everywhere, because a lot of really smart lawyers have volunteered to produce this high-quality tool).
We're also attempting to show people what it might look like if you could wire together all this open stuff. We have a project called the Neuro Commons which is putting all the publicly available neurological literature and open databases together in a vast, open network that anyone can download, use, or build upon.
We've had high-throughput arrays, robotization, in silico studies, genetic sequencing, and the personal genome. All of these were supposed to catapult us off into a scientific revolution, but didn't. It reminds me of what people were saying about the personal computer in 1985: "This thing's just a paperweight. What does it do for me?" The answer was, "Nothing until it's wired together with all of the other ones." Then suddenly you can't imagine being without it.