Radiohead manager Brian Message to testify for Tenenbaum

Via Glyn on the ORG list: Radiohead manager Brian Message has reportedly agreed to testify for student Joel Tenenbaum in the case being brought against him by Sony BMG, alleging he used Kazaa for the illicit copying of 7 songs. Charles Nesson of Harvard's Berkman Center is leading Tenenbaum's defence.

IPRED implemented in Sweden

The Swedish law implementing the EU's Intellectual Property Rights Enforcement Directive of 2004, officially came into force yesterday, according to a CNet report. And the vice chairman of the Swedish Pirate party is reported by the BBC as suggesting it has instantly cut Net traffic in Sweden by 33%.

ACTA timeline

Michael Geist has posted a very useful ACTA timeline on his blog.

Update: Via Glyn Moody, see also Geist's article in the Ottawa Citizen, Battle over top-secret treaty heats up

"Next week, the Department of Foreign Affairs will conduct one of the stranger consultations in recent memory. Officials have invited roughly 70 stakeholder groups to discuss an international intellectual property treaty that the U.S. regards as a national security secret and about which the only substantive information has come from a series of unofficial leaks.

Since then-minister David Emerson announced Canada's participation in the Anti-Counterfeiting Trade Agreement negotiations in October 2007, the ACTA has been dogged by controversy over the near-total lack of transparency."

Slideshare rockstar?

I just had an email from Slideshare telling me I'm a "Slideshare RockStar". Apparently the slides of my talk at the Westminster eForum on on copyright last year have been getting a lot of views in the past 24 hours. Sure enough, on checking, it seems that it has been viewed more than 10,000 times. I assume there is probably a simple explanation for this (is there, Tony H.?) because I'm not aware of anything that should have suddenly pushed traffic in that direction recently. It's not really been a big IP news week.

Is this an April fool's joke?

Smith and the adult films - nothing to hide nothing to fear

Simon Jenkins is in good form at the Guardian today, pleased that the Home Secretary has been hoist by her own petard, after the revelations of her husband's porn watching and her subsequent claiming for the cost of it on expenses.

"Sweet is the spectacle of a home secretary bitten by her own snake. The outrage of Jacqui Smith's television expenses claim lies not in its content, lurid as it is, but in the way it was exposed. How many times must the home secretary have been assured in security briefings that her latest purchase of some data storage gizmo was "totally secure"?

"Don't worry," the briefers would have said, "the material will be protected by the finest firewalls, the most foolproof anti-hacking devices and the most savage legal defence. Nothing will be transferable and only the highest in the land will have access. Besides, home secretary, as you have so often said, the innocent have nothing to fear."

Yes, they do. They have the revelation of their husband's taste in movies, apparently leaked by contractors in receipt of easily copied discs, now on offer to anyone with £300,000...

In the last eight years, the same MPs who are howling at their data vulnerability have voted for the most extensive surveillance system in Europe, as well as the biggest data storage in the most expensive and inept computers. Britain under Labour has become the world capital of privacy intrusion...

In 2000, just nine organisations were allowed warrants to access secure government records: the figure is now almost 800. For a small fee, anyone will be able to learn anything about anyone else. It may be illegal, but like computer downloads it will happen...

One of the few home secretaries who dominated his department rather than be cowed by it was Lord Whitelaw in the 1980s. He boasted how after any security lapse, the police would come to beg for new and draconian powers. He laughed and sent them packing, saying only a bunch of softies would erode British liberty to give themselves an easier job. He said they laughed in return and remarked that "it was worth a try".

Now the try always works. What is extraordinary is the weakness of the liberty lobby in opposition...

The only hope is that now MPs... might be more mindful of the liberties - and privacies - of others. I would not hold my breath."

Opposition to Authors Guild on Kindle 2 text to speech

Manon Ress notes that there is growing opposition to the Authors' Guild stance which caused Amazon to shut off the text to speech feature of its Kindle 2 ebook reader.

" Reading disabled persons affected by the Authors’ Guild request to remove the text to speech function on Kindle 2 include include school children, the elderly, professionals, university students, returning veterans, and yes, your neighbors, family members and friends.

The Reading Rights coalition is growing and includes now 22 members:
American Association of People with Disabilities
American Council of the Blind
American Foundation for the Blind
Arc of the United States and United Cerebral Palsy
Association of Blind Citizens
AHEAD (Association on Higher Education and Disability)
Bazelon Center for Mental Health Law
Burton Blatt Institute
DAISY Consortium
Disability Rights Education and Defense Fund (DREDF)
IDEAL Group, Inc.
International Center for Disability Resources on the Internet (ICDRI)
International Dyslexia Association
International Dyslexia Association – New York Branch Learning Disabilities
Jewish Guild for the Blind
Knowledge Ecology International (KEI)
Learning Disabilities Association of America
National Center for Learning Disabilities
National Disability Rights Network
National Federation of the Blind
NISH (formerly National Institute for the Severely Handicapped)
National Spinal Cord Injury Association

Equal and not separate Reading Rights

What we believe:

“As technology advances and more books move from hard-copy print to electronic formats, people with print disabilities deserve the opportunity to enjoy access to books on an equal basis with those who can read print.”

People with print disabilities cannot effectively read print because of a visual, physical, perceptual, developmental, cognitive, or learning disability.

Simply put, people with reading disabilities want to buy books. They are fighting to have equal access to technology and information.

Now that the Kindle 2 offers text-to-speech, some reading disabled persons could actually purchase and enjoy books at the same time as anybody else.

However, it looks as if the Authors Guild does not support equal access for those willing to pay equal prices. For the Guild, to read books, reading disabled persons must either be “registred” or pay more to read with text-to-speech.

Here is an Open Letter to Authors by the Reading Rights Coalition.

And here is a powerful statement from Carrie Russel, Director Program on Public Access to Information, ALA Office for Information Technology Policy

“It is hard to know what is worse — Amazon cowtowing to the Authors Guild’s request to remove the text to speech function or the Authors Guild seeking to squeeze every penny they can from the visually impaired who are already paying for the Kindle books. Amazon did not have to cave - there was no license they had agreed to with the Authors Guild to remove the speech function that would have expanded rights to private reading. Shame on the Authors Guild for being greedy and downright mean to the visually impaired.”

Please support us, people with reading disabilities and people who care about access to books for all, by joining an informational picket in front of the Authors Guild’s headquarters in downtown Manhattan on April 7, 2009 at 12:00 p.m."

EU Consumer Commissioner focuses on online privacy

The EU's Commissioner for Consumer Affairs, Meglena Kuneva, yesterday turned her attention to matters of online data collection and profiling.

"We are here to talk about one of the most important and most controversial issues in the fast evolving world of digital communications: the explosion in the volume of collected personal data and its use for commercial purposes.

I feel there is a much needed discussion on the new generation of practices and business models built on the ability to profile consumers and then use their profile to target them for commercial purposes...

Internet is an advertisement supported service and the development of marketing based on profiling and personal data is what makes it go round. Personal data is the new oil of the internet and the new currency of the digital world...

Tools must now be developed that balance the interests of business with that of the consumers. This means two things: the respect of users' right to control their public exposure; and the obligation to protect them against abusive and risky practices targeted at them.

We have already well established consumer policy principles, articulated in regulations and tools that bring confidence in the traditional world of goods and services. These are principles of transparency, clear information, choice, fair commercial communications and fair contract terms. We do not need to reinvent the wheel. What we need now is a debate on how we apply these tested principles in digital world, in particular in the activity of collecting consumers' personal data for the purpose of commercially targeting them...

Our research shows that young people between the ages of 15-25, the most confident of internet users, use the internet in spite of the fact that they generally don’t trust it. Using internet under these conditions is like drinking your water while thinking it might be slightly toxic. We would not allow such a situation to exist in the market for water, or cosmetics or toys. We do not tolerate this lack of confidence in any consumer commercial setting because in the long run lack of confidence damages markets. In our toxic water example, you will drink the toxic water but you will drink just enough and no more. And the water market will not thrive.

There are three particular strands of actions we must address: privacy policies, commercial communications and commercial discrimination...

More than 4 out of 5 young internet users believe that their personal information is somehow used without their knowledge and shared with third parties without their agreement. They are right...

The status quo is not an option. Currently, consumers have little awareness of what data is being collected, how and when it is being collected and what it is used for. And they are also not able to control this process. The current opt-out systems are partial, sometimes nowhere to be found, they are difficult or cumbersome and most of all, they are unstable. Avoiding tracking is currently technically difficult if not impossible...

We must establish the principles of transparency, clear language, opt-in or opt-out options that are meaningful and easy to use. I am talking about the right to have a stable contract and the right to withdraw. And I am also talking about fair clauses and the right to participate in economic activity without selling your whole self indiscriminately as commercial fodder to the entire world...

No one in the digital space really cares about our actual names or exact physical addresses. What traders want is a description of who we are and a way to reach us. They want to know that the person behind the number 1234 is young, sporty, drives fast cars and travels frequently and that as a trader you can show up on his screen at your convenience. This is fine. But what about the person behind number 456, unemployed, in debt and about to lose his home? He is a target for predatory loans and fraudulent financial and yes, personal, advice...

But we must ensure that commercial communications comply with the law. This means they cannot deceive, mislead or amount to excessive pressure. What is the implication of these principles in a world of personal information?

...

This actually brings us the really tricky matter of the blurring of commercial and non commercial communications. A recent experiment in neuroscience suggests that individuals might abdicate their own valuation of risks when given individual advice by an expert and just follow the expert's advice. ^[1] This only reinforces the need to enforce the principle of identifying commercially sponsored messages and, even more importantly, the principle of identifying commercially sponsored messengers.

The situation becomes even trickier in the world of social sites and viral marketing. Young people and even children are being particularly targeted as conduits for advertisement. If a toy company incites a little girl to share with her friends she got a brand new doll, is the message she sends an advertisement? Does receiving a sponsored message that your best friend got a doll amount to pressure selling if you are 7 years old?

Our current legislation forbids advertisements that ask children to pester their parents but we say nothing of the ones that ask them to pester their friends...

If this personal information is used to extract the maximum price possible from you or to block your access to some services altogether, then commercial discrimination can damage the confidence in digital trade and services. People may resent a world where they would have to systematically pay for who they are or the risks they personally incur.

Excessive targeting in the form of price or commercial discrimination can also inhibit the ability of users to predict and compare prices which seriously harms competitiveness in a market.

We have some way to go to understand the full consequences of this commercial practice but we must start thinking about the parameters for legitimate discrimination. What type of commercial discrimination, if any, is damaging to consumer trust and market efficiency?

...

I invite industry to develop a framework that applies consumer policy principles and that will establish the principles of acceptable behaviour...

The regulatory protection we have in Europe is extensive and far-reaching. There is a huge task ahead of us in terms of enforcement of the rules that already exist both regarding privacy and consumer protection. Some progress has been made but it is not nearly enough...

Behavioural targeting on the internet will become increasingly pervasive and consumers understandably feel uncomfortable.

Today I want to send one very clear message to those involved in all aspects of the digital world - Consumer rights must adapt to technology, not be crushed by it. The current situation with regard to privacy, profiling and targeting is not satisfactory.

The central issue is to transpose the principles of consumer policy to this new technological reality so that we maintain our traditional boundaries of what is right and what is not, what damages people and markets and what favours and nurtures them...

If we fail to see an adequate response to consumers concerns on the issue of data collection and profiling, as a regulator, we will not shy away from our duties nor wait for a cataclysm to wake us up."

I wonder what she means by the phrase "Consumer rights must adapt to technology"? Surely whoever wrote her speech really meant to say that technology should be used in ways that respect consumer rights?

Google and Privacy International clash again

From the Guardian:

"Google has dismissed accusations that it is orchestrating "an unsavoury and defamatory smear campaign" in the increasingly ferocious battle with the campaign group Privacy International, which claims the technology giant is trying to discredit its concerns over the controversial Street View tool.

In an open letter to Google chief executive Eric Schmidt tonight, Privacy International's director Simon Davies claims that after it had raising a series of privacy concerns in the national press, Google staff began secretly briefing journalists against the group by alleging it is supported by and institutionally biased in favour of Microsoft."

EU Parliament report rejects 3 strikes

Via Michael Geist on Twitter European Parliament Rejects Three Strikes and You're Out Approach

I see Slashdot has picked it up too. The report is available at the europa website. Michael Geist says:

"The key paragraph states that the Parliament recommends that the European Council:

proceed to the adoption of the directive on criminal measures aimed at the enforcement of intellectual property rights, following an assessment, in the light of contemporary innovation research, of the extent to which it is necessary and proportionate, and while simultaneously prohibiting, in pursuit of that purpose, the systematic monitoring and surveillance of all users’ activities on the Internet, and ensuring that the penalties are proportionate to the infringements committed; within this context, also respect the freedom of expression and association of individual users and combat the incentives for cyber-violations of intellectual property rights, including certain excessive access restrictions placed by intellectual property holders themselves;

While this is a mouthful, it is noteworthy that the Parliament emphasizes proportionality, the rejection of Internet monitoring, and the use of excessive access restrictions placed by IP rights holders."

Security flaws halt work on ContactPoint

From the Times: Security flaws halt work on ContactPoint

"Security flaws have halted work on the internet database designed to hold the details of 11 million children and teenagers.

The Department for Children, Schools and Families (DCSF) admitted last night that it had uncovered problems in the system for shielding details of an estimated 55,000 vulnerable children.

These include children who are victims of domestic violence, those in difficult adoptions or witness protection programmes and the children of the rich and famous, whose whereabouts may need to be kept secret.

ContactPoint is a £224 million online database that contains the names, addresses, dates of birth and details of schools, GPs, social workers and support services of all 11 million people aged under 18 in England. It is intended to improve child protection...

Some adopted children whose identities should be shielded are listed on the database by both their original and their adopted surnames, with a link between the two."

"In other instances, shielding simply disappears from the records of vulnerable children every time that the database is updated automatically from central government databases, such as the school census or the child benefit database. "

As Rights Clash on YouTube, Some Music Vanishes

From the NYT: As Rights Clash on YouTube, Some Music Vanishes

"In early December, Juliet Weybret, a high school sophomore and aspiring rock star from Lodi, Calif., recorded a video of herself playing the piano and singing “Winter Wonderland,” and she posted it on YouTube.

Weeks later, she received an e-mail message from YouTube: her video was being removed “as a result of a third-party notification by the Warner Music Group,” which owns the copyright to the Christmas carol.

Hers is not an isolated case. Countless other amateurs have been ensnared in a dispute between Warner Music and YouTube, which is owned by Google. The conflict centers on how much Warner should be paid for the use of its copyrighted works — its music videos — but has grown to include other material produced by amateurs that may also run afoul of copyright law.

“Thousands of videos disappeared,” said Fred von Lohmann, staff lawyer for the Electronic Frontier Foundation, an Internet civil liberties group that asked affected YouTube users to contact it. “Either they turned off the audio, or they pulled the video.”"

Obama administration sides with RIAA in P2P suit

Declan McCullagh tells us that the Obama administration has sided with the RIAA in the Joel Tenenbaum P2P lawsuit:

"The Obama administration has sided with the recording industry in a copyright lawsuit against an alleged peer-to-peer pirate, a move that echoes arguments previously made by the Bush administration.

A legal brief filed Sunday in a case that the Recording Industry Association of America is pursuing in Massachusetts argues that federal copyright law is not so overly broad and its penalties not so unduly severe that they count as "punitive." Current law allows a copyright holder to receive up to $150,000 in damages per violation...

The Massachusetts case could prove to be an important one. A group of Harvard law school students, with the help of Harvard law Professor Charles Nesson, is providing defendant Joel Tenenbaum with an aggressive legal defense. They aim to convince the courts that the law the RIAA relies on is so Draconian it amounts to "essentially a criminal statute" and is therefore unconstitutional; that it grants too much authority to copyright holders; and that it violates due process rights guaranteed by the U.S. Constitution."

New Zealand scrap 3 strikes provision

The New Zealand government has reportedly scrapped the three strikes provision (Section 92A) of the Copyright Amendment (New Technologies) Act.

Minister rules out use of evoting machines in Ireland

The Irish minister for the environment has reportedly ruled out using the Nedap evoting machines that have been gathering dust in a warehouse in Ireland at the cost of more than a few euros per annum.

OGC finally publish the Gateway Reviews of the ID Cards system

From the ever informative SpyBlog:"

The Office of Government Commerce, an Agency of Her Majesty's Treasury, has finally publish the two Stage Zero Gateway Reviews of the ID Cards programme

It has taken- 1510 days i.e. 4 years 1 month 18 days after the initial Freedom of Information Act request, which should, according to the law, and the principle of "open government" and public transparency, have taken no more than "20 working days".

The OGC has spent at least £120,000 on legal fees alone, and probably a similar amount of public money again has been spent by the Information Commissioner's Office and the Information Tribunal.

See the OGC FOIA disclosure page.

Here are the two documents, which were kept so secret, that the OGC initially refused to let even the Information Commissioner have copies of them.

Here are the documents which caused the Government to invoke the Bill of Rights 1689 against the Information Tribunal's first decision to support the Information Commissioner''s decision to permit full disclosure.

Both the information Tribunals decided to redact or censor the names of the Assessors doing the Gateway Reviews,and the names of the people who were interviewed about the project.

• Home Office ID Cards Programe Gate 0 Report June 2003 (PDF, 92KB) (N.B. the misspelling of "Programme")

• Home Office ID Cards Programme Gate 0 Report January 2004 (PDF, 91KB)
  

Here is some early commentary and analysis:

• Computer Weekly: Government publishes 'secret' ID card reviews

• Philip Johnson in The Telegraph: Three Line Whip blog: Secret ID card reviews published at last

• The NO2ID campaign discussion forum thread:: OGC Gateway Reviews published"

Strategic Advisory Board for IP priorities for copyright

In the thick of other things I missed the Strategic Advisory Board for Intellectual Property Policy's (SABIP) publication last week of a very clear paper setting out its priorities for its copyright work programme. It identifies an interesting set of issues and actions:

"1. The role of copyright in stimulating creativity
and innovation...

SABIP will investigate how different types of copyright law7
enhance or reduce creative output. Does the system assist
creators in earning appropriate rewards, notwithstanding the
apparently widespread illegal and unpaid-for dissemination
of products? SABIP will analyse differences in returns
to stakeholders within national copyright frameworks of
varying approaches and will further explore the implications
of technologies of mass copying and distribution on these
returns. Is the existing system equipped to respond
appropriately to the effects of the new technologies?

...

2. Ownership and coverage of copyright...

SABIP will undertake research into alternative approaches
to copyright coverage which distinguish between
economic and moral rights and their potential advantages
and disadvantages. SABIP may, for example, conduct
comparative studies of copyright legislation in other
countries where the respective emphasis on moral and
economic rights differs from that in the UK. Notwithstanding
the diffi culties of effecting change within the context of the
relevant internationally binding treaties and agreements,
SABIP will also consider the likely economic and social
impact of potential changes in the law...

3. Rights management techniques and technologies...

SABIP will review the effects on the various parties
(creators, publishers and other providers, professional and
other users) of the adoption of Digital Rights Management
(DRM) Tools. In doing this, SABIP will explore sectoral
differences and the effect of external deterrents or any
barriers on take-up. SABIP will seek to identify the patterns
of use of DRM tools, their individual benefi ts and weaknesses
and their overall implications for various stakeholders...

4. The relation between copyright and contract...

SABIP will examine the relative effects of copyright law,
contract law and DRM/TPM technologies on incentives,
distribution of fi nancial rewards and the protection of user
freedoms. Do standard form contracts limit or hinder user
freedoms in particular creative sectors? SABIP’s research
programme may also explore evidence around claims that
creators lose out in the negotiation over contract terms.
SABIP will compare how legal models used elsewhere offer
protection to creators’ economic interests and moral rights.
In the light of this analysis it will consider whether there is a
case for amendment to the balance of UK copyright law in its
relation with contract law and how such a change could be
implemented...

5. Simplifi cation of the copyright framework...

SABIP will investigate the perceived and/or actual
drawbacks of current copyright law in terms of its
complexity. For example, which provisions are narrowly
defi ned and therefore not relevant or comprehensible or
which boundaries of exceptions are unclear or confusing?
What impact does this complexity have on willing compliance
by users?
SABIP will consider what, if any, specific steps would
benefi cially simplify the law and rationalise the provisions
of the 1988 Act regarding copyright, in order that it is
widely accessible and comprehensible, as well as being
appropriately enforceable by those whose legitimate
interests are undermined by breaches of copyright.

6. Attitudes & Behaviours in the Digital Economy:
Implications for IP...

SABIP will: continue to explore the relationship between
the general understanding of the copyright framework and
compliance with the copyright framework; the extent to
which this framework is felt to be “fair”; effective means of
education as to copyright rights and responsibilities; and
the effectiveness of current or prospective enforcement
techniques. For example, SABIP will investigate whether
new types of content producer are aware of the copyright
protections available to them, and whether they are able to
deploy the system effectively.
The first phase of this project, a literature review, is due to
be completed in April this year. The fi ndings of the review
will be presented at a stakeholder workshop that will
contribute to the development of a large-scale consumer
survey into attitudes and behaviours in the digital economy
and their implications for Intellectual Property."

The hugely positive aspect of all of these research proposals is that they are firmly rooted in the notion of generating empirical data and analysis to inform policymaking. Each one of the six proposals is potentially a huge undertaking on its own if they are to be done properly, so hopefully SABIP have the substantive funding to support them. SABIP are planning to make their first substantive evidence-based policy recommendations within the next 12 months. Evidence-based intellectual property policy making - now that would be a paradigm shift! They are also inviting comments on the scope of their proposals.

"The Board and its Expert Panel will be developing plans for
undertaking this work programme over the coming months. This
process is intended to include both face-to-face discussions and
opportunities for written presentations on each of the specific areas
outlined in this paper. Any comments should be sent to info@sabip.
org.uk. most usefully by the end of May 2009."

Mixed news on copyright

There is some mixed news on copyright today. Firstly it seems that the Internet Service Providers' Association of Ireland (ISPAI) have rejected the demands of the music industry for a 3 strikes regime in Ireland, despite the recent Eircom settlement.

"This [threatened] legal action is spurious and there is no evidence of wrong-doing by Internet service providers... These actions could impact on user privacy, damage the development of new Internet services, and hurt Ireland's standing as an e-commerce hub."...

The statement added that ISPAI could not ignore the protection of privacy of user communications in Irish and European law "merely because it does not suit another private party.""

Next up the EU parliament has, according to ORG, postponed the vote on copyright term extension that was due to take place on 23 March.

"Amid intense lobbying in the European Parliament next Monday’s vote on the proposal to extend the term of copyright has been struck off in a shock move. Following a meeting of the presidents of the political groups in the European Parliament on Tuesday, and with controversy and a lack of consensus surrounding the proposal, MEPs have delayed voting till the end of April - just before this summer’s European elections. A trialogue discussion between the European Commission, Council and Parliament, set for the end of March, will now attempt to broker a deal to see if the directive will be allowed to pass.

MEPs are waking up to the reality that the proposal to extend copyright term doesn’t do what it says. It’s a terrible and unworkable instrument that will do nothing but bring copyright into disrepute in the eyes of consumers. If you’re concerned about the need for a fair and balanced copyright framework you must contact your MEPs now. Make your voice heard!

In other news this week Professor Martin Kretschmer, Director of the Centre for Intellectual Property Policy & Management Bournmemouth, and Horace Trubridge, Assistant General Secretary of the British Musicians’ Union, have been debating the copyright term extension proposal. Additionally copyright creators in the Association for Fair Audiovisual Copyright in Europe have launched a petition against the proposal.

But right now the most important thing is to contact your MEPs and tell them why copyright term extension is a bad idea! Use our web banners and spread the word."

Also from ORG: A Digital Rights Agency: “an industry owned, industry led and industry run body”

"Last Thursday the Open Rights Group along with many others made a submission in response to the Digital Britain Report. In that submission, we said:

This action has the potential for much harm. We call on the final Digital Britain report to
reject the idea of a ʻrights agencyʼ.

Less than 12 hours later, we found David Lammy and Stephen Carter launching a consultation into the shape of the ‘Digital Rights Agency’.

It is hard to believe that either minister had processed the responses on exactly this question in the space of twelve hours. More concerning still is the comment in this new document from Lammy and Carter that:

“fundamentally this has to be an industry owned, industry led and industry run body.”

This is precisely the problem we have with the idea of a Digital Rights Agency. Rather than working out what a legitimate and balanced future of copyright and enforcement looks like, the problem gets handed over to the people most worried about enforcement. This is what we wrote in our submission which no doubt Lammy and Carter were busy reading over breakfast:

The proposal seems to be at heart a way of extending the MoU process without a clear idea of how to resolve the underlying problems.

Overall, we doubt that a rights agency would be able to adequately reflect users and citizenʼs rights, have a tight remit and offer value for money.

We have emphasised that any agency would have to include representatives of consumer interests, so that concerns such as protection of the innocent, and preservation of privacy are given proper weight. We would not wish the role of defending customers to be filled by ISPs alone, especially as many of them are also rights holders, with conflicting business interests.

There are other key stake holders who would need to be represented, including at least Consumer Focus, UK Online Centres and the Information Commissionerʼs Office. However, because of the nature of such an agencyʼs work, we are equally sure that non-statutory groups would likely be very cautious about engaging in its work.

A rights agency we assume would be in effect a semi judicial process, with a duty to co-ordinate enforcement of sanctions below the level of court action. While there may be merit in, for instance, overseeing the nature of letters sent to consumers, there are also potential problems. A ʻrights agencyʼ could quickly be involved in inappropriate attempts define a range of sanctions below the level of court action.

A ʻrights agencyʼ could easily be a body whose functions quickly sprawl, especially under pressure from rights holders if their business models continue to change too slowly to meet market demands.

From a public perception point of view, innocent consumers would be paying through their broadband bills for the enforcement of third party rights. This doesnʼt seem like a wise option for a government looking for public consent.

You can add your own public comments on the proposal for a Digital Rights Agency here."

Mark Thomas DNA removed from police database

Also writing in the Guardian, comedian Mark Thomas tells us he has managed to arrange to have his DNA and fingerprints removed from police records. The police agreed to remove his details after he had threatened to issue judicial review proceedings, in the wake of the Home Secretary's lack of substantive response to the European Court of Human Rights ruling against the UK government in December (S. and Marper v The UK).

"Until Tuesday I was one of 800,000 innocent people in the UK who had their DNA on the police database. Most of us had a swab sample taken on arrest and our identifiable cell clusters have languished on police files even if charges were dropped or we were found not guilty in court.

In 2003 I was arrested at a protest against the arms dealer BAE Systems and charged with causing £80 worth of damage to a bus. Leaving aside the irony that if any BAE Systems products only caused £80 of damage the purchasers would sue for a refund, seven months later I found myself on trial. After two days I was acquitted on the legal technicality of being innocent. More important, the court found there was no evidence for a crime having been committed in the first place. The experience left me frustrated, with only a 20-minute comedy routine to take away the pain of injustice...

On Tuesday the police replied with one line: "I can confirm that a decision has been made to delete your client's fingerprints and DNA sample and DNA profile." No explanation why.

Victory celebrations, though, might be premature. As the law remains unchanged it leaves the onus on individuals to write to the police seeking removal. Helen Wallace, from the NGO GeneWatch, says she has received "copies of letters from lots of individuals who have not been convicted of any offence who are being refused removal from the database". As Jacqui Smith has dodged the issue it is up to us. There are 799,999 of you out there, mostly pissed off, some eligible for legal aid, and everyone with the motivation to do their bit in rolling back the data state. Go on, write in."

I assume the suspected sewer grating photographer, Stephen Clarke, will have taken note. Mark Thomas may not have had to go as far as a judicial review - presumably whoever got the job of reviewing his request for removal noted he was an outspoken comedian who would definitely pursue the issue and took the necessary pragmatic decision in order to avoid expensive and publicly embarrassing litigiation - but I expect one of the 800,000 or so will eventually take it before a judge.

Minister seeks power to approve school textbooks

According to the Guardian, the government is now seeking the power for ministers to specify which authors' works would go on the school curriculum.

"The schools secretary, Ed Balls, is seeking a new legal power to dictate the basic content of every public exam in England, in a move that would give him or any future secretary of state the right to decide which books children must study at GCSE or A-level.

The law would allow the government to set "minimum requirements" for qualifications. One senior exam board source said it would give ministers "mind-boggling power" over exams if it got on to the statute books.

Opposition MPs will attempt today to remove from the apprenticeships, skills, children and learning bill the clause that gives the secretary of state control of basic qualifications content. Guidance published alongside the bill says it could be used to specify "which authors' works needed to be studied for someone to gain a GCSE in English".

Ministers insist the power would be exercised only as a last resort, to preserve the teaching of Shakespeare, for example, if there was a suggestion it should be scrapped from the curriculum."

What's worrying is that some of them probably even believe that bit about saving Shakespeare.

Copyright term again

Less than a week now until the EU Parliament votes on the latest copyright term extension proposals and I'm reminded, naturally, of Jefferson and Macaulay but also, more recently, a lecture by Sir Hugh Laddie in 1995 (the IP Institute Stephen Stewart Lecture), subsequently published in the European Intellectual Property Review journal the following year (Laddie, H. (1996), "Copyright: over-strength, over-regulated, over-rated?", European Intellectual Property Review, Vol. 18 No.5, pp.253-60.) Discussing the then relatively new EU copyright term extension directive of 1993, Laddie had this to say:

"As a result of the Term Directive, the copyright in the first category of works, that is to say, literary works and so on, is now life of the author plus 70 full years. This additional 20 years has been imposed throughout the Member States of the European Union to bring us into line with the domestic law of Germany. As is now familiar in copyright law, the process was one of leveling up the protection rather than levelling down. The result of this new term is that if, for example, a young computer programmer writes a new piece of computer software, he generates a monopoly which will normally last for over 100 years. Depending on his longevity, it may last more than 150 years. Similarly, if a politician writes letters or speeches which are of general historic interest, they also may be protected for a century or more. Indeed, if a modern-day architect were to design a new Albert Memorial, he would have the satisfaction of knowing that his copyright is likely to be sprightly and in the prime of life long after the concrete and steel of his architectural creation have started to crumble.

The question to be asked is: what justification is there for a period of monopoly of such proportions? It surely cannot be based on the principle of encouraging artistic creativity by increasing the size of the carrot. No one is going to be more inclined to write computer programs or speeches, compose music or design buildings because 50, 60 or 70 years after his death a distant relative whom he has never met might still be getting royalties. It is noticeable that this expansion of term is not something which has only occurred in the last decade. On the contrary, it has been a trend which has been in evidence for the whole of this century. Before the 1911 Act, the term of copyright in artistic works extended to seven years after the author's death. In 1911 this was extended to 50 years after death. The growth of term is in fact greater than these figures suggest. Life expectancy in 1910 was far shorter than it is now. The result is that a monopoly which was expected to last about four decades in 1910 should now be expected to last on average more than three times as long.

Indeed, I believe that the same criticism of excessive duration can be leveled at the 50-year flat term which applies to films, recordings and broadcasts. It may be possible to pick out a few creations of exceptional artistic or commercial merit where one could argue for lengthy protection - for example, the recordings of Rostropovich or the Beatles - but is it right that all copyright should be protected on the basis of what might be thought justified for the exceptional few? Furthermore, it is possible to argue that these long copyright terms are not necessary to protect the commercial exploitation of the works themselves. Most works protected by copyright are exploited very rapidly, if at all. This is so whether we are considering films and records or literary works such as computer software. Even books such as those that win the Booker prize are only commercially successful for a short time and then, to all intents and purposes, pass away. Yet the dead hand of copyright lingers on, in most cases serving no useful purpose.

Another of the problems with copyright law is that, unlike inventions protected by patent or designs protected by registration, the requirements for qualification are so low as to be virtually non-existent. Virtually any written material, any sketch and any film footage or sound recording is automatically protected. This has practical consequences. In Elanco v Mandops, the Court of Appeal accepted, as it had to, that a label of instructions placed on the side of a barrel of herbicide was a copyright literary work. No doubt depending on the youth of the literary genius who wrote it, the label will be protected for more than a century and perhaps for as long as a century and a half - certainly well beyond the date when for safety or commercial reasons the product has been removed from the market. So one of the troubles with copyright, then, is that it springs up to protect nearly every creation of the human mind, be it ever so trivial. As another member of the judiciary put it, the fact that our system of communication, teaching and entertainment does not grind to a standstill is in large part due to the fact that in most cases infringement of copyright has, historically, been ignored...

It would be possible to go on criticising the width of our copyright laws, but perhaps I have said enough. It might be more useful to inquire why our law has developed as it has. I have mentioned already the value and size of the industries which now believe they need extensive copyright protection to safeguard their income stream. They, quite properly, lobby for their interests. But who lobbies against them? There is no trade union of copyright infringers. Support for any limitation on copyright is easily portrayed as support for pirates - the usual pejorative global expression for infringers. It is depicted as support for the parasites of industry. Is it surprising, then, that the scope of protection gets ever wider? I suggest that the drafting of the legislation bears all the hallmarks of a complacent certainty that wider copyright protection is morally and economically justified. But is it?"

Laddie, who died in November last year, was widely respected round the world as an IP litigator, judge (he was a High Court judge between 1995 and 2005) and educator (Prof at ICL). It would be sad if the EU were to ignore his and countless other renowned IP experts advice and press ahead with this ill conceived measure.