Council of Europe Human Rights Commissioner Media Freedom Lectures

The Council of Europe's Commissioner for Human Rights, Thomas Hammarberg, has been hosting a series of lectures and discussions on media freedom and human rights. Lectures number 4 and 5 in the series, in partnership with ARTICLE 19 and the London Metropolitan University, took place at the Free Word Centre in London on Friday last. In a world of live blogging and Twitter it's probably a bit quaint to be writing a blog post about the event four days later. Nevertheless this is the first opportunity I've had to do so, so...

ARTICLE 19's Nabila Ramdani and Boyko Boev spoke about 'The Role of Public Service Media for Human Rights' during the morning session and Douwe Korff waxed lyrical on the subject of 'Social Media, Political Activism and Human Rights' in the afternoon. The latter paper was a joint production done with Ian Brown of the Oxford Internet Institute.

Previous lectures have focussed on 1. ethical journalism in human rights and media self regulation, 2. freedom of information and 3. the protection of journalists, particularly investigative journalists. The final lecture in the series will cover media diversity and will take place in Vienna in a couple of weeks.

Commissioner Hammarberg's plan is to use the lectures and associated discussions as the basis of a book on media freedoms and human rights due to be published later this year.

The ARTICLE 19 paper identified a series of common characteristics of public service media:

1. They should form part of a tripartite system where public service and commercial media co-exist with community media
2. they should be accessible by everyone or subject to general availabilty
3. they should have a specific public service remit (as per article 3 of the BBC Charter, for example)
4. they should be independent of both state and commercial interests
5. they should be impartial, objective and dispassionate and represent the interests of as many social groups as possible
6. they should be publicly accountable

The authors of the paper then went on to discuss the problems with migrating to public service media in many countries which don't have the benefit of a PSM set up like the BBC.  The BBC was held up repeatedly as a bastion of virtue and the model to aspire to.  Now whereas we should be grateful for what we've got in the UK in relation to the BBC and it is infinitely better than regimes where public service media is another description for government propaganda machine, we need to be pretty vigilant about successive governments' efforts to undermine the BBC and the corporation's own complicity in that regard, in addition to its less-than-public-service ethos in relation to issues like DRM on HD broadcasts.

Boyko Boev also suggested that in thinking about injecting a human rights agenda into public service media, there was a need for formal structural inputs from human rights defenders (NGOs etc) and international human rights organisations, into the usual bounded government/psm institution(eg BBC)/regulator(eg Ofcom)/viewer-listener bounded public service media system.

The subsequent discussion was wide ranging but there were a few key points worth mentioning. Firstly Commissioner Hammarberg noted that one of the major problems in this whole area is in the allocations of spectrum frequencies.  Too true and the concentrated control of the technology is something that is frequently overlooked. He also explained his serious concerns, in the decade of the "war on terror", in relation to European authoriatarian tendencies and the spread of hatred and xenophobia.

There was general concern noted by the audience and the commissioner about the way the media laws were changed in Hungary and the way that criticism of the changes was handled by the Hungarian government.  There was also a general consensus that the EU repsonse to what happened in Hungary was weak and distasteful and that the EU has failed miserably in facilitating accession to the Union by numerous states who have no effective press regulations/protections.  Four long standing member states have no press regulation at all and the prospects of enhancing human rights through public service media are virtually zero if there are no effective protections in place in such states.

Douwe Korff, in the afternoon, engaged in a simultaneously entertaining and somber legal analysis of social media, political activism and human rights, prompted by conventional media's interest in such issues in the context of the Arab spring.  He talked about social media revolutionising mainstream journalism and acting as a solvent on the control of traditional media on news production; and also as a kind of a solvent on the law and the holy grail of legal clarity and certainty.

Primarily he was concerned with internet blocking, takedown and surveillance and warned that the deep packet inspection that is fundamental to such activities is dangerous technology.  He and Ian have concluded that internet blocking:

• is ineffective at blocking illicit material (false positive)
• blocks legal content (false negative)
• sometimes assists access to illicit material - eg organised paedophile gangs find it easy to get access to "secret" lists of banned websites
• does not achieve the aim of removing illegal websites from the Net
• does absolutely nothing to protect children from abuse and on the contrary gives EU member states an excuse to ignore the problem by pretending it doesn't exist

All states, including Western liberal democracies, want to block something and internet blocking is often based on vague arbitrary laws - you only have to look at the HADOPI regulations in France or the Digital Economy Act in the UK to see that.  The blocking also often relies on secret banned lists, collated by unaccountable quangos, public or private, in dark smokey rooms (though with the anti-smoking laws now in place in the UK I guess the smokey rooms are no longer smokey. Of course we don't know, since it's done in secret).  These blocking provisions additionally tend to ignore due process - website owners get to know about the blocking after the event and it can be difficult to challenge.

Yet the blocking is pretty easy to bypass by people who know what they are doing and criminal gangs engaged in nefarious activities who have ready access to people who can facilitate such circumvention.

Professor Korff went on to warn of the power of the internet as a panopticon - the Net essentially facilitates mass surveillance of online activities and Net surveillance is linked to real world surveillance. Regardless of the relative amount of time we spend on the Net we live in the real world.

He suggested there were three key issues in relation to getting some kind of control/oversight of this ubiquitous surveillance:

1. the "margin of appreciation" doctrine of the European Court of Human Rights i.e. the leeway individual member states have to interpret human rights obligations as they see fit - hence the variation in the implemention of the convention in different countries
2. the internet is largely controlled by the private sector, their primary interest being to make money not operate in accordance with the principles of the European Convention on Human Rights, which they have no formal obligations to respect in any case
3. the rules on internet blocking are arbitrary, opaque and unchallengable - hence undermine the rule of law and due process

On the margin of appreciation, whereas this works quite well offline, respecting local cultures, laws and economies, in the online context states should no longer be given the protection of the over-generous application of the margin of appreciation. We cannot, for example, have jurisdiction shopping leading to a situation where the most restrictive laws on speech apply everywhere.  Ian and Douwe recommend that we restrict the application of the margin of appreciation doctrine to deal with the reality of the Net - the pretence that states can stop a sea of internet information at their borders is unsustainable. In a practical sense, if someone in the UK accesses smut in breach of UK obscenity laws then make them liable.  But don't hold the website owner liable if that site is hosted overseas, is not illegal in that jurisdiction and is not targetted at the UK, on the preponderance of evidence.

On the issue of private sector organisations controlling internet technologies and having no obligation to comply with human rights regulations, the authors effectively recommend that the contraints of the European Convention on Human Rights apply to such organisations in the context of internet governance.  The detail of how this would be done is not entirely clear.  But in principle it would work through these organisations agreeing to sign up to an internet charter of principles, based on the Convention and emerging constitutional-type principles of internet governance, in exchange for being able to benefit from the avoidance of intermediary liability of the kind facilitated by the ecommerce directive of 2001.

Finally they recommend that the rule of law should apply to the internet especially in relation to political activity. No secret compilations or deployment of secret blocking lists.  All restrictions of rights should be based on clear, accessible, transparent, foreseeable, proportionate, necessary, effective, regulations; no arbitrary unchecked authority, no bypassing of due process; absolutely no excuses for mass, suspicionless, warrantless surveillance e.g. data retention; and these rules should not be limited to government and public sector activities but also apply to the private sector that effectively controls the technologies of the internet and, in a real practical sense, the control of the governance of the internet is inherent in the control of that  technological architecture.

Nice to round off the day with some high principled idealism!

And thanks to ARTICLE 19 for inviting me.

Microsoft lose i4i patent case in US Supreme Court

Microsoft has lost their appeal to the US Supreme Court in their patent dispute with i4i.

"In asserting patent invalidity as a defense to an infringement action, analleged infringer must contend with §282 of the Patent Act of 1952 (Act), under which “[a] patent shall be presumed valid” and “[t]he burden of establishing invalidity . . . shall rest on the party asserting”it. Since 1984, the Federal Circuit has read §282 to require a defen-dant seeking to overcome the presumption to persuade the factfinder of its invalidity defense by clear and convincing evidence. Respondents (collectively, i4i) hold the patent at issue, which claims an improved method for editing computer documents. After i4i sued petitioner Microsoft Corp. for willful infringement of thatpatent, Microsoft counterclaimed and sought a declaration that the patent was invalid under §102(b)’s on-sale bar, which precludes pat-ent protection for any “invention” that was “on sale in this country” more than one year prior to the filing of a patent application. The parties agreed that, more than a year before filing its patent applica-tion, i4i had sold a software program known as S4 in the UnitedStates, but they disagreed over whether that software embodied the invention claimed in i4i’s patent. Relying on the undisputed fact thatthe S4 software was never presented to the Patent and TrademarkOffice (PTO) during its examination of the patent application, Micro-soft objected to i4i’s proposed jury instruction that the invalidity de-fense must be proved by clear and convincing evidence. The District Court nevertheless gave that instruction, rejecting Microsoft’s alter-native instruction proposing a preponderance of the evidence stan-dard. The jury found that Microsoft willfully infringed the i4i patentand had failed to prove the patent’s invalidity. The Federal Circuit affirmed, relying on its settled interpretation of §282.

Held: Section 282 requires an invalidity defense to be proved by clear and convincing evidence. Pp. 5–20.
(a)
The Court rejects Microsoft’s contention that a defendant need only persuade the jury of a patent invalidity defense by a preponder-ance of the evidence. Where Congress has prescribed the governing standard of proof, its choice generally controls. Steadman v. SEC, 450 U. S. 91, 95. Congress has made such a choice here. While §282includes no express articulation of the standard of proof, where Con-gress uses a common-law term in a statute, the Court assumes the“term . . . comes with a common law meaning.” Safeco Ins. Co. of America v. Burr, 551 U. S. 47, 58. Here, by stating that a patent is“presumed valid,” §282, Congress used a term with a settled common-law meaning. Radio Corp. of America v. Radio Engineering Labora-tories, Inc., 293 U. S. 1 (RCA), is authoritative. There, tracing nearly a century of case law, the Court stated, inter alia, that “there is a presumption of [patent] validity [that is] not to be overthrown except by clear and cogent evidence,” id., at 2. Microsoft’s contention that the Court’s pre-Act precedents applied a clear-and-convincing stan-dard only in two limited circumstances is unavailing, given the ab-sence of those qualifications from the Court’s cases. Also unpersua-sive is Microsoft’s argument that the Federal Circuit’s interpretationmust fail because it renders superfluous §282’s additional statementthat “[t]he burden of establishing invalidity . . . shall rest on the party asserting” it. The canon against superfluity assists only where a competing interpretation gives effect “ ‘to every clause and word of a statute.’ ” Duncan v. Walker, 533 U. S. 167, 174. Here, no inter-pretation of §282 avoids excess language because, under either of Mi-crosoft’s alternative theories—that the presumption only allocatesthe burden of production or that it shifts both the burdens of produc-tion and persuasion—the presumption itself would be unnecessary in light of §282’s additional statement as to the challenger’s burden. Pp. 5–13.
(b)
Also rejected is Microsoft’s argument that a preponderance standard must at least apply where the evidence before the factfinder was not before the PTO during the examination process. It is true enough that, in these circumstances, “the rationale underlying thepresumption—that the PTO, in its expertise, has approved theclaim—seems much diminished,” KSR Int’l Co. v. Teleflex Inc., 550
U.
S. 398, 426, though other rationales may still animate the pre-sumption. But the question remains whether Congress has specifiedthe applicable standard of proof. As established here today, Congressdid just that by codifying the common-law presumption of patent va-lidity and, implicitly, the heightened standard of proof attached to it. The Court’s pre-Act cases never adopted or endorsed Microsoft’s fluc-

tuating standard of proof. And they do not indicate, even in dicta, that anything less than a clear-and-convincing standard would everapply to an invalidity defense. In fact, the Court indicated to the con-trary. See RCA, 293 U. S., at 8. Finally, the Court often applied theheightened standard of proof without mentioning whether the rele-vant prior-art evidence had been before the PTO examiner, in cir-cumstances strongly suggesting it had not. See, e.g., Smith v. Hall, 301 U. S. 216, 227, 233. Nothing in §282’s text suggests that Con-gress meant to depart from that understanding to enact a standard of proof that would rise and fall with the facts of each case. Indeed, had Congress intended to drop the heightened standard of proof wherethe evidence before the jury varied from that before the PTO, it pre-sumably would have said so expressly. Those pre-Act cases wherevarious Courts of Appeals observed that the presumption is weak-ened or dissipated where the evidence was never considered by the PTO should be read to reflect the commonsense principle that if thePTO did not have all material facts before it, its considered judgmentmay lose significant force. Cf. KSR, 550 U. S., at 427. Consistent with that principle, a jury may be instructed to evaluate whether theevidence before it is materially new, and if so, to consider that factwhen determining whether an invalidity defense has been proved by clear and convincing evidence. Pp. 14–18.
(c) This Court is in no position to judge the comparative force of theparties’ policy arguments as to the wisdom of the clear-and-convincing-evidence standard that Congress adopted. Congressspecified the applicable standard of proof in 1952 when it codified thecommon-law presumption of patent validity. During the nearly 30 years that the Federal Circuit has interpreted §282 as the Court does today, Congress has often amended §282 and other patent laws, butapparently has never considered any proposal to lower the standardof proof. Indeed, Congress has left the Federal Circuit’s interpreta-tion in place despite ongoing criticism, both from within the Federal Government and without. Accordingly, any recalibration of the stan-dard of proof remains in Congress’ hands. Pp. 18–20.
598 F. 3d 831, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which SCALIA, KENNEDY, GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. BREYER, J., filed a concurring opinion, in which SCALIA and ALITO, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. ROBERTS,
C. J., took no part in the consideration or decision of the case."

It was a technical legal challenge where Microsoft were trying to get the Court to accept that they could prove i4i's patent was invalid "by a preponderance of the evidence" rather than the prevailing standard that "clear and convincing evidence" is required to invalidate a patent.

I actually have some sympathy with Microsoft in this instance for reasons elucidated in chapter 6 of the recent Hargreaves review but there was a slim chance that such a challenge would succeed given the legal precedents in the US. Hargreaves (which I'll write about in more detail when I get the chance) succinctly explains the problems of economic gridlock associated with patent thickets.  There's been a huge growth over the past twenty years in applications for computer technology patents. Patent offices around the world just don't have the resources to cope and that's partly the reason that so many ridiculous technology patents see the light of day.  But as Hargreaves says:

"6.17 ... the evidence that patenting supports innovation is weaker in
computer technology and telecoms than in other areas. In these industries, inventions are nearly
always “sequential,” where innovation builds cumulatively on previous inventions and innovations,
rather than non-sequential, where a patent generally corresponds to a single product and knowledge
is not particularly cumulative.

6.18 Research has established that patents encourage innovation in non-sequential fields where upfront costs are high, such as drug development.12,13,14,15,16 But with the growing importance of sequential technologies, innovation across the economy is becoming more cumulative and collaborative in nature, building on previous inventions and innovations. The “patent model” of incentives works less well for these industries, where initial cost does not dominate to the same extent the cost of subsequent reproduction. Further, in a strongly sequential environment it is often unclear where the boundaries of protection afforded by one patent lie in comparison with another. This compounds the thickets problem discussed above.

6.19 Industries working in sequential technologies therefore face a “double whammy”: the incentives provided by patents are reduced, while the negative consequences, in the form of thickets which must be navigated, are increased. This means that while for non-sequential inventions, such as a new drug or medical treatment, having a patent system generally yields higher welfare than not having one; in a fully sequential case, higher welfare and more innovation may be more likely to result from the absence of patenting opportunities.17 Over time, as digital technology becomes pervasive across the economy, this represents a serious concern."

Microsoft are indeed facing a double whammy with this one, hence the sympathy with their position of wanting to dilute the threshold evidence base for invaliding patents in the area of computer technologies. However the sympathy is somewhat tempered by the fact that Microsoft have been guilty of playing and litigating the defensive (and offensive) patent portfolio game too.

EDPS recommends abolition of data retention directive

The EU Data Protection Supervisor, Peter Hustinix, has issued a strongly worded opinion saying the data retention directive is incompatible with the EU's privacy protections; and that the directive has failed to meet its primary objective of harmonising the laws of member states on data retention.

"VI. Conclusion

83. The EDPS is pleased that, although not strictly required by Article 14 of the Data
Retention Directive, the Commission also took into account in the Evaluation report
the implications of the Directive for fundamental rights. 

84. The Evaluation report shows that the Directive has failed to meet its main purpose, namely to harmonise national legislation concerning data retention. Such a lack of harmonisation is detrimental to all parties involved: citizens, business operators as well as law enforcement authorities.

85. On the basis of the Evaluation report it may be concluded that the Data Retention Directive does not meet the requirements set out by the rights to privacy and data protection, for the following reasons:

- the necessity of data retention as provided for in the Data Retention Directive has not been sufficiently demonstrated; - data retention could have been regulated in a less privacy-intrusive way; - the Data Retention Directive lacks foreseeability.

86. The EDPS calls upon the Commission to consider seriously all options in the impact assessment including the possibility of repealing the Directive, either per se or combined with a proposal for an alternative, more targeted EU measure.

87. A future Data Retention Directive could be considered only if there were agreement on the need for EU rules from the perspective of the internal market and police and judicial cooperation in criminal matters and if, during the impact assessment, the necessity of data retention, supported and regulated by the EU, could be sufficiently demonstrated, which includes a careful consideration of alternative measures. Such an instrument should fulfil the following basic requirements:

- It should be comprehensive and genuinely harmonise rules on the obligation to retain data, as well as on the access and further use of the data by competent authorities. - It should be exhaustive, which means that it has a clear and precise purpose and the legal loophole which exists with Article 15(1) of the ePrivacy Directive is closed. - It should be proportionate and not go beyond what is necessary."

 Just to be clear - 

1. the need for data retention has not been justified
2. data retention is incompatible with data protection and privacy regulations
3. the effects of data retention are unpredictable
4. the directive has failed in its aim to harmonise the laws of member states on data retention
5. the EU should abolish the data retention directive
6. having abolished it, if the EU are to consider data retention directive version 2.0 they'd better produce strong evidence in advance that it is necessary, proportionate and very clearly and narrowly focussed

That's a pretty succinct and damning assessment.

BBC acknowledge FoI request on HD DRM

I've received an acknowledgement from the BBC of my freedom of information request on the HD DRM issue.

FOI Enquiries
British Broadcasting Corporation

7 June 2011

Dear Ray

Thank you for your request for information under the Freedom of
Information Act 2000, about communications with OFCOM relating to the
consultation on content management on the HD Freeview platform which was
received on 6th June 2011. We shall deal with your request as promptly
as possible and, at the latest, within 20 working days. If you have any
queries about your request please contact us at the address below.

The reference number for your request is RFI20110637.

Kind regards

BBC Information Policy and Compliance 

BBC Freedom of Information
Room 2252, White City
201 Wood Lane
London W12 7TS, UK

Website: www.bbc.co.uk/foi
Email: [BBC request email]
Tel:             020 8008 2883      
Fax: 020 8008 2398

show quoted sections

Link to this

Ofcom and BBC DRM: further FoI requests

Before launching an appeal with the Information Commissioner about Ofcom's refusal to disclose the key arguments of UK broadcasters on the HD DRM consultation, I've decided to send both Ofcom and the BBC a couple of further freedom of information requests. I include copies of both requests below.

BBC stance on Freeview HD DRM

Dear British Broadcasting Corporation,

I would like to make a freedom of information request for full and
complete copies of all the BBC communications with Ofcom relating
to the Ofcom consultation 'Content management on the HD Freeview
platform' (Start date: 22 January 2010, End date: 02 April 2010).

In particular could you send me:

(a) A full copy, including the redacted sections noted on page 1
and 7, of the 'BBC response to Ofcom consultation of 22 January
2010'
http://stakeholders.ofcom.org.uk/binarie...

(b) A copy of the BBC submission to Ofcom of 8 December 2009 on
this same matter

Yours faithfully,

Ray Corrigan

http://www.whatdotheyknow.com/request/bbc_stance_on_freeview_hd_drm#outgoing-131921 

Ofcom u-turn on BBC DRM

Dear Office of Communications,

I would like to make a freedom of information request for full and
complete copies of the documents:

(a) recording and explaining the reasons behind Ofcom's decision in
2009 to abandon its long standing opposition to the idea of the BBC
adding digital rights management technology to its high-definition
broadcasts and

(b) outlining the decision making process leading to the Ofcom
public consultation 'Content management on the HD Freeview
platform' (Start date: 22 January 2010, End
date: 02 April 2010).

Yours faithfully,

Ray Corrigan

http://www.whatdotheyknow.com/request/ofcom_u_turn_on_bbc_drm#outgoing-131926

BBC HD DRM timeline

I've done a rough timeline on Open University academics' open letters and freedom of information requests relating to Ofcom's consultation and decision on the BBC/Freeview HD signal DRM.

25 March 2010

Open letter to Ofcom objecting to HD signal DRM proposal signed by 50 OU academics

http://cloudworks.ac.uk/cloud/view/3199

Also sent as formal response to the Ofcom consultation.  (My esteemed colleague Blaine Price sent the submission and Ofcom filed it, as an individual rather than a group response to the consultation).

21 May 2010

OU academics Open letter to Michael Lyons, the Chairman of the BBC Trust

Published by OpenDemocracy 30 May 2010

http://www.opendemocracy.net/ourkingdom/petition-calls-on-bbc-to-reconsider-encryption

We received an acknowledgement of this letter from Mr Lyons’ personal assistant, June Prunty, (on 27 May 2010) but we never received a substantive response from Mr Lyons himself.

14 June 2010

Ofcom approve BBC/freeview HD DRM

http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/statement/statement.pdf

The heart of the decision was in paragraphs 1.5 and 1.6 where they admitted to being persuaded by “confidential” i.e. secret information provided by BBC, ITV and Channel 4, as well as the story spun by rights holders.

There are many examples of confused thinking in the document, though, and their perspective on copyright law in 5.31 and 5.36 and the, shall we say, counterintuitive logical leaps made from that perspective, plus the reference to "fair usage rights" (lack of precision at best, ignorance of the law at worst) suggests a shaping of the decision by the content industry; (and the, 'if you only knew what I knew', secret details of secret meetings/negotiations held between the broadcasters and content industry).

26 August 2010

We sent a freedom of information request for the “confidential” information supplied by broadcasters to the Ofcom consultation via the whatdotheyknow website

http://www.whatdotheyknow.com/request/bbc_itv_and_channel_4_stance_on

This link contains copies of subsequent exchanges of communications with Ofcom right up to and including their most recent declaration on 7th February 2011, in response to our request for an internal review of their decision, that they were withholding the key information.

27 September 2010

Ofcom’s initial response to the FOI request.

http://www.whatdotheyknow.com/request/45799/response/117109/attach/html/3/1%20155429914%20final%20Ray%20Corrigan.docx.html (Firefox 4.0.1 seems to be having problems displaying this properly but it reads fine in Chrome)

The initial excuses for withholding the key confidential arguments that the BBC, ITV and Channel 4 used to convince Ofcom to permit DRM on the HD Freeview signal were sections 41 and 44 of the Freedom of Information Act and section 393(1) of the Communcations Act 2003; and that there is no public interest test to compel disclosure of that information under sections 41 and 44.  Ofcom’s letter dated 27 September 2010 said:

"This information you requested is being withheld as it falls under the following exemptions:

·            Section 41 of the Act, relating to information provided in confidence. Section 41 is an absolute exemption under the Act and does not require a public interest test.

and

·            Section 44 of the Act. Under this section information which we hold on this subject is exempt from disclosure since it was shared with us under our regulatory power and disclosure is prohibited under section 393(1) of the Communications Act (CA) 2003.  Section 44 is an absolute exemption under the Act and does not require a public interest test."

28 September 2010

Follow up request to Ofcom for withheld information

http://www.whatdotheyknow.com/request/bbc_itv_and_channel_4_stance_on#outgoing-86780

At this point we get into somewhat tedious regulatory alphanumeric soup.

We explained in this note that the courts have recognised that there is a public interest test in relation to Section 41 exemptions, despite Ofcom’s advice to the contrary. (This is explicit in paragraph 2.3 of the statute’s full exemptions guidance on how s41 should be interpreted http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/foi/guidance/exguide/sec41/chap02.htm).

It is our contention that the disclosure of the arguments of the BBC, Channel 4 and ITV in favour of DRM would be in the public interest and would significantly outweigh the interest in keeping the confidence. So a s41 refusal raises the possibilty that Ofcom are concerned about legal action by the BBC, Channel 4 and ITV if they were to disclose this information; and also the risk that a judge would rule that keeping the information secret was in the public interest, a pretty difficult argument to make I would have thought.  After all, if the confidential claims are in the public interest and so compelling as to be a key factor in Ofcom's decision to approve HD DRM (as stated by Ofcom in their decision to approve Freeview HD DRM in June 2010), how can the public possibly be harmed by having access to and understanding these arguments; and the detailed efforts the broadcasters are making on our behalf.

S44 of the FOIA + S393(1) of the Communications Act seem to indicate Ofcom is prohibited from disclosing information obtained about a business. But section 393(2) says this (i.e.section 393(1)) does not apply to any disclosure of information which is made “for the purpose of facilitating the carrying out by OFCOM of any of their functions”.

Additionally section 393(6) of the Act says section 393 cannot be used to limit matters included in an Ofcom report and, in particular, matters related to Ofcom's duty to publish and take account of research and to Ofcom's publication of information and advice for consumers; both of which arguably relate to the Freeview DRM decision.

Stasis until 2 February 2011

At this stage Ofcom effectively went into lockdown with the re-organisation brought upon them by the coalition government cuts. Trying to be sensitive to the traumas associated with such circumstances we decided not to press for further answers until the new year. We sent them a reminder on 2 February 2011 and, in fairness, they then responded within a week.

7 February 2011

Ofcom’s final response withholding the key information.

http://www.whatdotheyknow.com/request/bbc_itv_and_channel_4_stance_on#incoming-148902

They ignore our section 41 FOIA arguments and reject our section 393 CA arguments. They add that disclosing information in breach of section 393(1) “may constitute a criminal offence”.

Sections 393(4) and (5) give lists of “functions”, “enactments and instruments” relevant to section 393. The Freedom of Information Act is not included in these lists. This enables Ofcom to deduce, bizarrely if logically, that (and I quote):

“disclosure under FOIA is not a function for which Ofcom can disclose information”  

Hilarity ensues.

They also advise us to take it up with the Information Commissioners Office if we’re still not happy.  It is fair to say we are not happy, even if the their final conclusion, taken in isolation, is rather amusing.

In brief –

Open letters to Ofcom and BBC Trust Chairman (March – May 2010)

Ofcom approve HD lockdown (June 2010)

FoI ping pong (Aug 2010 – Feb 2011) –

Us: We’d like to see the secret BBC, ITV and Channel 4 information that convinced Ofcom to lock down HD Freeview with DRM please.

Ofcom: No. S41 & s 44 of the FOIA and s393(1) of the Communications Act say we don’t have to disclose this, even if it’s in the public interest to do so.

Us: Er courts and statutory guidance say s41 doesn’t have an absolute public interest exemption; and s393(2) of the Communications Act says you can’t use s393(1) as an excuse for withholding information if you’re fulfilling your public interest obligations by doing so.

So we’d like to see the secret BBC, ITV and Channel 4 information please, especially since you mentioned how keen they were to protect the public interest with their submissions.

Ofcom: No. S41 is complicated so let’s ignore that (implicit not explicit). WARNING – it may be a CRIME to tell you what you want to know. S44 FoIA provides a great excuse not to tell you anything because “Section 44 is an absolute exemption under the FoIA and does not require a public interest test” Anyway we see your s393(2) Communications Act loophole and raise you a s393(4)&(5) slam dunk. And (with a very straight face can say) therefore “disclosure under FOIA is not a function for which Ofcom can disclose information.”  

Now I realise the "In brief" summary of the FoI communications with Ofcom is a little colourful and I certainly wouldn't want to impugn the motives of dedicated public servants in Ofcom who are doing a tough job in straitened circumstances.  I would like to know, however, what happened within Ofcom in late 2009 to make them change their long standing opposition to BBC/Freeview DRM, to the extent that they then quickly launched a public consultation about how brilliant DRM was. Also, if the secret arguments of the BBC, Channel 4 and ITV are so compelling as to be a primary factor in convincing Ofcom that DRM is in the public interest, why can't the public have access to these documents? 

If you're interested in a little more detail on the saga, my blogpost reactions as it unfolded are here. We haven't decided yet whether to take the matter up with the Information Commissioner.

Update: Apparently there was a problem with the hyperlinks in this post.  Hopefully that is now fixed.

Arsenal 1 - Aston Villa 2

My younger son and I went to Arsenal's final home match of the season yesterday, only to witness them losing miserably to Aston Villa. It's hard to believe that 3 weeks ago they were still in with a chance of winning the league.  There were no tickets available for the Villa match at that stage.  Then we lost to Bolton, killed off any hope of leading the final standings and a number of ticket holders made their tickets available for sale on the Arsenal ticket exchange.

Yesterday, Arsenal looked more like exhausted relegation candidates than title contenders.  After 5 minutes Villa had had three attacks and Darren Bent had been left in acres of space on each occasion.  By 11 minutes Bent had had the freedom of the Arsenal box on 5 occasions only this time Kyle Walker decided to give him the ball which he duly despatched into the net. 0-1 Villa. 4 minutes later, roaming free for the 6th time Bent was given the ball again, this time by Ashley Young, who had figured out that Bent + space + time + clueless defence = goal.  15 minutes in, 0-2 to Villa.

Thereafter Villa retired into their own half and didn't see much of the ball except as it got passed around them, and occasionally directly to them, by a group of Arsenal players who were jogging around in slow motion, looking in most cases as if it was all too much like hard work and they didn't want to be there.  With the notable exceptions of Robin Van Persie and Jack Wilshere the rest of this erstwhile honours chasing squad were woeful, particularly in the first half.  Early on Villa had been playing a pressing game high up the pitch - really dangerous against pacy attackers like Walcott but they needn't have worried as the Arsenal speed merchant had left his accelerator at home. This is a moot point anyway since no one even attempted to give him a ball over the top to run onto.

After the break some Arsenal players upped their pace from a deliriously slow walk to a hesitant jog though mostly they seemed to be standing around hoping the ball would be passed to someone else, almost all completely devoid of energy.

In fairness whatever the manager said at half time Song partly awoke from his slumbers and Gibbs, who had been exposed defensively, along with the rest of the back four, in the first half, injected a modicum of entropy and heat into his performance going forward.  Ironically Song did more attacking once he had been moved to centre half (at half time Chamakh had come on for Squillaci, with Song moving to the back and Van Persie into the middle).  This was partly because Villa had given up attempting to get the ball or to get into the Arsenal half of the field though Young and Downing made two or three forays forward, getting a couple of shots in on Szczesny.

Darren Bent was looking an increasingly frustrated lone figure up front, as even on the few occasions his team did venture forward they didn't give him the ball in spite of the continuing lack of attention he was receiving in the vast open wilderness he continued to occupy on the Emirates pitch. Clearly they'd forgotten the Bent + space + clueless defence = goal formula. Honestly if Arsenal had a natural goal scorer like Bent in the team along with a fit Van Persie for a full season (which, remember, has never happened), scoring at the rate of 20 goals every 21 games as he had done, we could almost get away with the other structural weaknesses in the side. (And I say that as someone who has never been a big Van Persie fan)

Part way through the second half the stadium announcer declared the attendance for the day to be 60k+ and that the team would be doing 'a lap of appreciation' at the end. This was met with boos and a sarcastic chant from the crowd, "You're havin' a laugh, 6%, you're havin' a laugh, 6%" presumably in "appreciation" of the board's decision to hike the ticket prices by 6.5% for next year.

Diehard supporters will point to the two disallowed Arsenal goals, the stonewall penalty the ref inexplicably missed in the first half (Ramsey through on goal, poleaxed by Dunne on the edge of the six yard box), the inescapable red card that would have accompanied that penalty. And, you know, they're right.  On another day those things would have gone Arsenal's way, we could have comfortably taken the points with a three or four goal margin and we could have papered over the cracks of a tired, washed out performance. The only energy most players showed was in threatening to pick fights and complaining to the ref about Villa's time wasting tactics, as Villa laughed behind their sleeves at the extra time the Arsenal guys were wasting, squaring up to them and arguing with the ref!

People began leaving the ground about 10 minutes from the end, so they missed Van Persie's consolation goal 90 seconds from the end of normal time.  Most of those remaining left on the final whistle, declining to hang around for the lap of appreciation.  It's been a poor end to a promising season and sad to see some of the remaining fans booing the squad as they came round the pitch, largely unenthusiastically. In this regard Van Persie should be picked out again - he brought his two kids with him and got them to wave to the crowd too.

Players and managers are real people too though with their huge salaries and lives in bubbles they don't see the world through the same lens as the rest of us and we sometimes forget that. They're disappointed to have come so close but missed out on multiple medals in the past couple of months and that disappointment shows in their game and demeanour. Arsene Wenger also looked tired and depressed traipsing round the pitch with the rest of them.  Hopefully they can close the season on a positive note next week and, whatever the summer brings in terms of changes, get a decent restful break, enabling them to approach the new season with some renewed energy, passion, vigour and confidence.

To the disappointed and even angry supporters, fuming at the lack of another season without silverware it's worth remembering that, next to Man U., Arsenal have been the most consistent side in the Premier League for 15 years.  That kind of longevity in football deserves respect and there are 90 other clubs and sets of supporters in the top four divisions of english football and many more from around the world who would love to be in the Gunners' situation. So whilst decrying the lack of success and the insipid frustrating performances like that against Aston Villa, we should pause too and appreciate what we've got.  So thanks to Arsene Wenger and the players and backroom staff at Arsenal for another season of ups and downs. Have a good break and good luck with preparations for next year.

Another MEP responds on copyright term extension

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

"Dear Ray,

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

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

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

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

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

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

Best wishes,

Keith Taylor

Office of Keith Taylor, Green MEP for SE England"

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

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

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

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

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

Then:

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

Or in full the paragraph says:

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

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

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

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

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

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

Mosley loses at ECHR

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

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

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

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

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

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

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

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

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

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

They conclude:

"iii.  Conclusion

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

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

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

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

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

Digital privacy gordian knot

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

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

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

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

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

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

Our own addiction to convenience beats everything, including personal privacy

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

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

EU copyright term extension in sound recordings again

Prompted by Jim Killock of the Open Rights Group I wrote to my MEPs yesterday (all ten of them) on the matter of copyright term extension. I've had 3 responses so far.  First off the mark was Andrew S. Reed of UKIP writing on behalf of Nigel Farrage. They oppose the measure.

"Dear Ray Corrigan

Your letter, opposing the copyright-term-extension, is one of many such, sent to Mr Farage, including one from the European Bureau of Library-Information and -Documentation Associations (EBLIDA) objecting to the EU's proposed copyright-legislation, which includes the extension of the term of copyright to the disproportionate length of 95 years, because this will benefit, above all, large, corporate copyright-holders, will reduce the cultural value (to the public) of works-of-art and will not materially augment the return-on-their-work for artists.

EBLIDA' message furnishes further arguments against the proposal, pointing to a torrent of ill-effects.

Such effects are characteristic of EU-legislation, which is largely designed by big business (in this case, by four large media-companies) and produced, by the EU, primarily to increase its own power.  It does this in an entirely non-democratic process. That the EU's largely powerless, consultative assembly (the so-called "parliament") is elected - by 27 separate and mutually uncommunicative electorates - does not make it democratically elected, and the real powers of the EU (in the Commission, Council and Court) are not elected at all.

This is why the UKIP votes against every piece of EU-legislation - for all the effect that has, in an assembly dominated by EU-imperialists - and bitterly opposes Britain's continued entanglement in the EU-structure.

The assembly is much lobbied, by the relevant interests, during the prelude to its voting on any particular subject; but only a few, out of many thousands of EU-Commission proposals, have been substantially amended, in the past five years, and only two have been rejected.  Indeed, lobbyists (who profit from lobbying) collude with assembly-members (who profit from appearing to be doing something) in giving the impression that the assembly is a free agent, worth lobbying.  In fact the assembly is an appendage of the Commission and either does what it's told or is not allowed to do anything.

The chances of withstanding the current proposals on copyright are, therefore, slim.

The dangers of such a system, and the damage its legislation is doing, should be pretty obvious to most people, by now; and the only way to avoid them, is to repeal the European communities Act (ECA)

UKIP is the only party genuinely dedicated to achieving the repeal of the ECA, and I hope you will consider supporting us in our campaign to achieve it.

Please see below a more detailed objection, with which UKIP agrees, to the EU's proposals on copyright, from Mr William Heath of the "Open Rights Group".

Yours sincerely,

Andrew S. Reed

(Office of Nigel Farage, Strasbourg, www.ukip.org )"

Next was Peter Skinner of Labour, who doesn't really state what his position is but he appears to support it and says that the Parliament supports the proposal and there's nothing that can be done about it.

"Dear Mr Corrigan,

Thank you for your email concerning copyright term extension. The position of the European Parliament on the Commission's proposal to amend Directive 2006/116/EC was adopted on 23 April 2009 in a vote of the full plenary of the Parliament. Full information on the legislative process and texts adopted is available at:
http://www.europarl.europa.eu/oeil/file.jsp?id=5667672

The Parliament supported the proposal, with certain amendments including a thorough review clause, with 387 votes in favour and only 152 against. This first reading position was confirmed by the Legal Affairs Committee of the newly elected Parliament in September 2009. It is not possible for the Parliament to recall the dossier, as was sought by Mr Engström, because the Parliament's first reading was re-confirmed by the new Parliament in September 2009. The legislative process was therefore concluded in the Parliament at first reading and it is now for the Council of Ministers to adopt a position on this proposal.

With best wishes,

Peter Skinner"

Then came Richard Ashworth of the Conservatives who support the proposal and produced what I presume is the standard Consrvative party response.

"Dear Mr Corrigan,

Thank you for your email in which you raise concerns with regard to the proposed Copyright Extension Directive.

I, together with my fellow Conservative MEP's, have actively followed and been involved in the debate on copyright duration, believing this is actually issue one of the major parameters for establishing the amount of protection accorded authors and other owners of copyright and I very much understand the elements you put forward. However, issues surrounding copyright extension are controversial and the level of copyright, and copyright term, are matters that have been of importance to policymakers over the last decade and together with colleagues, we support extending the copyright period.

Copyright is extremely important because it is the way artists are rewarded; businesses make their money and invest in the future. But, duration of copyright is also the principal dividing line between the property rights of these owners and the public domain - that is, the domain of unprotected works which are available to the public for unrestricted, uncompensated use. Hence, we need a copyright framework that is both flexible and accessible and the Commission proposal meets many of these requirements. In the digital age, music is readily available online and copyright provisions need to take account of market changes. Extending the term of copyright to 95 years is essential if we expect performers and the music industry to carry on investing, innovating and creating and it is only right that they are given greater protection for their investments.

In economic terms, the copyright extension would also be beneficial. We believe that the available evidence suggests an extension of the copyright term is likely to benefit consumers rather than harm them and that overall social welfare is also likely to be increase.  Longer terms  will help to encourage digitisation  of much more of existing back catalogues of music , ensuring  a cultural legacy for  thousands of recordings which would otherwise be lost as physical copies are lost or left tucked away never to be heard again.   Further, based on a review of the academic literature and the available empirical evidence on record company investment behaviour (which suggests new music is, in fact, financed out of current earnings) there are strong grounds to believe that a retrospective increase in the copyright term will enhance these benefits.

In a Price Waterhouse Report, it was shown that an extension could boost the lagging music industry by £3.3 Billion over the next 50 years. The extension would also address the distortion of competition between the United States and the EU. At a time when creative industries based on intellectual property are generating an increasing percentage of GDP in the EU, the current disparity between the term of protection in the EU and the US clearly puts British record companies and performers at a competitive disadvantage. The extension to 95 years would therefore help the competitiveness of British music industry in the global marketplace.

Furthermore, a significant gap between the length of term of protection in the EU and the US facilitates piracy, particularly in the online environment where technology enables recordings in Europe to be transmitted over the Internet to countries where recordings are still in copyright. 

The extension would also improve the social situation of performers, who have been disadvantaged by the existing 50-year term which often does not cover their lifetime. While Composers have benefited from a term of copyright that extended to the composer's life and 70 years beyond, performers have been disadvantaged but this new proposal brings parity to those involved in the music industry. 

The UK has a very strong music industry and safeguards must be put in place if we are to maintain our position in today's marketplace. The copyright extension is a first step in this direction and should be supported.

Yours sincerely,

Richard Ashworth MEP"

I've responded to all three thanking them for their prompt attention (and support in the case of UKIP) but in slightly more detail to Mr Ashworth given his claims about empirical evidence supporting the need for term extension:

"Dear Mr Ashworth,

Thank you for your prompt though disappointing reply. As an academic who has studied the technology and intellectual property story for some time I can confirm that copyright is important and that issues surrounding copyright extension are controversial.

Copyright is important for artists but if the Commission’s proposal was really aimed at performers, it would link the term to the performer’s life (or a close proxy) and it would not grant the extended term to the producers of sound recordings. It would give it to the performers themselves.

You say a review of academic literature supports music copyright term extension. I'd appreciate it if you provide me with specific references to said literature supporting term extension.

I'm not sure if you're familiar with discounted cash flow calculations, where you work out the present value of future cash flows (in a kind of a reverse compound interest calculation). Frankly a basic discounted cash flow model calculation demonstrates that a copyright term of 95 years provides very little extra economic incentive today (compared to a term of 50 years) to invest in copyrighted works. Nevertheless I would still appreciate the opportunity to examine the academic literature you believe states otherwise, so I would still appreciate those citations.

You also say that "empirical evidence on record company investment behaviour (which suggests new music is, in fact, financed out of current earnings) there are strong grounds to believe that a retrospective increase in the copyright term will enhance these benefits."  Again I'd really appreciate a reference to this evidence. Part of the problem with intellectual property policymaking has been the absence of empirical evidence informing the process.

You cite the unpublished Price Waterhouse Coopers report produced for the British Phonographic Industry (music industry trade association) in 2006 to suggest that "an extension could boost the lagging music industry by £3.3 Billion over the next 50 years". The methodology of that study has been found to be wanting in several respects. Just one example is that it suggested a range of potential losses that varied by a factor of 20 and it is risky to rely on such figures for policy making. You also suggest extension of copyright term will benefit consumers.

In addition to a paper I produced with Mark Rogers of Oxford University in 2005** indicating that consumer and social welfare is not served by copyright term extension, an eminent collection of my academic colleagues around some of Europe’s most prestigious educational institutions have concluded in an open letter to the Commission,*

"It strains credulity to claim that a term extension will provide

large benefits to the record industry, as the Commission does, while having

no impact on consumers. The record industry holds the data that would

enable an independent empirical study to settle this issue."

I look forward to hearing from you regarding the citations to academic literature and empirical evidence supporting copyright term extension in sound recordings.

Thanks for your time.

Yours sincerely,

Ray Corrigan,

Senior Lecturer in Maths, Computing and Technology, Open University; Mailing address: Open University in the South, Foxcombe Hall, Boars Hill, Oxford, OX1 5HR, UK; Tel +44 (01865) 327000; blog http://b2fxxx.blogspot.com/

* The Proposed Directive for a Copyright Term Extension – A backward-looking package

Centre for Intellectual Property Policy & Management (CIPPM, Bournemouth University), the Centre for Intellectual Property & Information Law (CIPIL, Cambridge University), the Institute for Information Law (IViR, University of Amsterdam), and the Max Planck Institute for Intellectual Property, Competition and Tax Law (Munich published).

http://www.cippm.org.uk/downloads/Term%20Statement%2027_10_08.pdf

**Corrigan, R. & Rogers, M. (2005) The Economics of Copyright World Economics Journal

Volume 6, Number 3, 2005, pages 153 – 174

http://www.world-economics-journal.com/Contents/ArticleOverview.aspx?ID=219"

I had a fourth response as I was typing this blog post, from Daniel Hannan, another Conservative:

"Dear Mr Corrigan,

Thank you for your e-mail.

You may not be aware that European constituencies were reorganised following the 1999 European elections, and MEPs were elected under a proportional representation system. Having opposed the proportional system, the four Conservative MEPs in the South East region have divided the area into four sub-constituencies, to guarantee a more direct representation for the people of the South East region.

James Elles MEP is the Conservative representative for your part of Oxfordshire.  I have, therefore, forwarded your correspondence to him for his information.

Yours sincerely,
Daniel Hannan"

I've thanked him for his response and mentioned James Elles will have heard from me directly. 

It's interesting that the Conservative Party in the EU Parliament is supporting term extension when there is a fair chance that the Prime Minister may well oppose it.