Hargreaves IP Review : first impressions

The Hargreaves review, or as we should call it, Digital Opportunity: A Review of Intellectual Property and Growth, is finally out, and the blogosphere is awash with comment. Like many people, Pangloss has only had a chance to glance at it and note that the key recommendations are described thus [my italics added]:

• an efficient digital copyright licensing system, where nothing is unusable because the rightsowner cannot be found;
• an approach to exceptions in copyright which encourages successful new digital technology businesses both within and beyond the creative industries;
• a patent system capable of preventing heavy demand for patents causing serious barriers to market entry in critical technologies;
• reliable and affordable advice for smaller companies, to enable them to thrive in the IP intensive parts of the UK economy;
• refreshed institutional governance of the UK’s IP system which enables it to adapt organically to change in technology and markets.
  

Most of this seems at first sight to be very good news. The emphasis throughout on an empirical evidence base for IP policy is quite staggeringly refreshing in a field which is known to be the most lobbied by partisan stakeholders of any economic policy area. Much of this, one hopes, comes from the fact that serious academic economists , not paid by any industry or rightsholder sector, have contributed in depth to the Report. There is a formidable list of supporting evidence and documents which will be a great resource for those working in the field. In particular the restraint in paragraphs like this is to be treasured:

"No one doubts that a great deal of copyright piracy is taking place, but reliable data about scale and trends is surprisingly scarce. Estimates of the scale of illegal digital downloads in the UK ranges between 13 per cent and 65 per cent in two studies published last year. A detailed survey of UK and international data finds that very little of it is supported by transparent research criteria. Meanwhile sales and profitability levels in most creative business sectors appear to be holding up reasonably well. We conclude that many creative businesses are experiencing turbulence from digital copyright infringement, but that at the level of the whole economy, measurable impacts are not as stark as is sometimes suggested."

Rightsholders have claimed it as a victory that no US style general exception for "fair use" (or even "transformative use" as Gowers put it) has been proposed: this is rubbish, as all sides know that would require rewriting the EU Infosoc Directive, which would take countless and possibly fruitless years of negotiation. Instead the report suggests the UK uses to the full the exceptions that are available within the EU framework, including parody, archiving, data mining and format shifting exceptions, which would finally allow the long suffering public to legally rip their own CDs to their own iPods. This is all good stuff, as the British Library have already said - but it has to be remembered the Gowers report recommended almost exactly the same things several years back, and precisely nothing happened. Let's hope Hargreaves won't go the same way.

The most unexpected outcome was probably the attention paid to the way that "patent thickets" increasingly commonly stifle innovation and hinder new intrants with new technological ideas. My colleague Technollama, a long time open source and open science advocate has written approvingly of the plans announced , which is good enough for me.

My own interest is most piqued by the recommendation that the Government bring together rights holders and other business interests to create the world’s first Digital Copyright Exchange. The idea behind this proposal is that it will make it easier for users to obtain licences of rights holders' works for digital exploitation, in the hope that this will help drive digital innovation - for example, perhaps finally allowing ISPs like Virgin to offer legal P2P for a flat fee, something which major music rightsholders have stymied for several years by refusing to issue blanket licenses for unlimited sharing. The history of Spotify is also instructive here - though they have had huge success in parts of Europe, their launch in the US has been endessly delayed by the music rightsholders refusing to play ball. Every new online service suffers from barriers to offering comprehensive current and back catalogue. It is extremely heartening to see a UK government review say upfront that the future for the content industries lies not with ever more draconian IP enforcement strategies, but with creating a market where attractive licensed content is available in ways that rival and compete with the illegal market; and where the main aim is not to alienate the potential consumer but to offer him/her a great product.

Not coincidentally , Pangloss has just come to exactly the same conclusion in her own report for WIPO on the Role and Responsibilities of Online Intermediaries in Copyright which will be launched very shortly in Geneva. Some parts of the EU policymaking machine also believes better cross licensing and collecting society arrangements are the longterm answer, not anti consumer measures like restricting services in some markets, and promoting graduated response. Hopefully the UK will now make these points during the upcoming renegotiations of the IPRED Directive.

To quote again:

"Such research as exists indicates that we should be wary of expecting tougher enforcement alone to solve the problem of copyright infringement. Instead, Government should respond in four ways: by modernising copyright law; through education; through enforcement and by doing all it can to encourage open and competitive markets in licensed digital content, which will result in more legitimate digital content at prices which appeal to consumers."

However, as one blogger has already noted ,the proposal is likely to be resisted to the teeth by some large creative industry rightsholders . Taylor Wessing note:

"Issues that arise include:

• Who will police whether rights are being accurately recorded within the Exchange? The opportunity for abuse is immediately apparent, with many disputes over ownership being flushed out at the outset of the Exchange.
• How will limitations on licences (e.g. territorial restrictions or particular restricted uses) be recorded? Some licences will have a string of limitations attached to them, making the Exchange quite complicated to navigate for a lay person.
• Who will fund it? It is unlikely to be the Government given these times of austerity. Therefore, funding is likely to come from within the creative industries. Is this a cost that the industry can stomach or will this be seen as yet another cost to the creative industries, along with those of tackling digital piracy?

Finally as expected the report makes no new recommendations concerning the Digital Economy Act: it was known this would be off limits given the uncertainty around the judicial review. Given that there is still a very interesting Chapter 8 on enforcement (covering counterfeit goods and a possible small patent court claim for patent owners, as well as copyright), which concludes by recommending that

"When the enforcement regime set out in the DEA becomes operational next year its impact should be carefully monitored and compared with experience in other countries, in order to provide the insight needed to adjust enforcement mechanisms as market conditions evolve. This is urgent and Ofcom should not wait until then to establish its benchmarks and begin building data on trends."

Interesting times. In the meantime Hargreaves and his team are to be given every support in the hope these difficulties can be overcome - and that these proposals will not fester like Gowers.

Do You Want To Know A Secret?

Pangloss thought she was really going to write something serious about superinjunctions after the #Twitterstorm got on her nerves this morning, but it seemed by the time she got time that everyone else had written about it already. Including of course, David Allen Green.:)

Then she worried a bit about what the effect of all this might be on Twitter itself, rather than the celebrities, the newspapers, or the courts. Intermediaries worry a lot about being the ones who take the flak for the actions of their users. As a result most have abuse policies which boil down to "complain and we'll find a clause in our T & C which lets us take down the offending comment or possibly even kick the blighter off our site".

What worried me, then, was the suggestion this a.m. (which I now can't find, but believe me, it's out there) that Twitter could automatically redact tweets which threatened to infringe superinjunctions (ah found it!). Because I very much doubt they can . I suspect all they do right now is take down, in whole, on complaint, and that may not satisfy irate celebrity lawyers. Twitter is very very much more likely only to be able to automate removal of every tweet (and all of it) featuring say Jemima Khan's name . Or Gordon Ramsay's. Or um Andrew Marr. Even tweets by these people themselves. And that would er just be silly.

But then I remembered there's a fairly clear set of directions in the injunction Demon Internet got the court to approve way back in 2001, when they worried that one of their subscribers would break the court ban on revealing the new identity of Venables, one of the killers of Jamie Bulger.

An ISP shall not be in breach of the injunction unless it, or any of its employees or agents:

Knew that the material had been placed on its servers or could be accessed via its service, or

Knew that the material was likely to be placed on its servers or was likely to be accessed via its service, and, in either case

Failed to take all reasonable steps to prevent the publication."

Twitter isn't an ISP but the responsibility (and thus risk) seems similar or greater than a mere ISP. But what are "all reasonable steps"? Having a decent abuse policy? Providing the identity of alleged infringing tweeters on request? Providing it on court order? More? Yet more privatised filtering coming our way? Le sigh. (Hard to believe the ECJ would back that last though, the way SABAM seems to be going.)

But what I really ended up wanting to say wasn't a legal point but this quote which I found by an anonymous commenter at the end of one of the Guardian pieces.

The naming of celebrities still feels like a moral victory: as though we've usurped the rich and powerful. Celebrity superinjunctions annoy me not because of potential hypocrisy or controlling what I can and can't know (though those things do annoy me), but because it's wealth privilege on display. If I had an affair, and if for some reason the newspapers saw fit to print information about it, I wouldn't be able to get a superinjunction. I couldn't afford it.

So there you go. Superinjunctions, and their accompanying deconstruction and storm of comment, aren't about privacy vs freedom of expression. Or sex vs sensible journalism, tabloids vs broadsheets, the UK v the ECHR. or even the English High Court and Justice Eadie vs the Rest of the World. They're about power and the proletariat. Now can we go back to talking about stuff that matters, like jobs and health?

And why hasn't Wikileaks published that list of celebrities already anyway??

EDIT: Useful piece in OUT-LAW today about whether Tweeters could be done for contempt of court if accurately infringing outstanding injunctions cf @superinjunction.

One of the big issues is if a Tweeter as opposed to a media organisation would have had sufficient notice of the injunction, without actually having seen it or read it - Kim Walker thinks yes.

Another is anonymity - a Norwich Pharmacal order would work in UK, but will it work against Twitter whose HQ is in US? Walker thinks Twitter UK would request its US parent to seek a US order. Interesting - my own thought was that as with this case of the billionaire and allegedly libellous pseudonymous comments on Wikipedia, it would be up to the aggrieved celebrity to seek the US subpoena themselves. But again, seeking the ID itself, might be another of those "reasonable steps" Twitter as platform would have to take to ensure it was not itself in contempt?

An interesting point several commenters have brought up is that if a Twitter account is deliberately spreading false rumours the appropriate action would be not breach of confidence but libel, and that this would apply not just to the original accountholder but all the RTs. Litigation heaven beckons :) One wonders if the Jameel rules on abuse of process (previously used to restrain libel tourism) might not intervene here to stop the courts being flooded with thousands of Norwich Pharmacal orders...? (Note also that if the allegations were accurate, RTing would involve those who reweteeted as also breaching confidence - and yadda yadda, but more litigation hell..)

Return of the Robots! and Hay on Wye Festival!

Longtime readers of Pangloss may recall that last September I was momentarily rather obsessed with robot law and roboethics, having been kindly invited to an expert meeting on this topic by the EPSRC. In particular I gave you a sneak preview of my own version of the redesigned "Asimovs laws" as "Laws for Roboticists" which we worked on drawing up. The Scotsman also published a two page spread about this.

The full "committee" version of the new laws - expanded to five - have now been oficially published in New Scientist in a piece written by the marvellous Alan Winfield.

Alan writes on his blog:

"Well it's taken awhile, but the draft revised 'laws of robotics' have now been published. New Scientist article Roboethics for Humans, reporting on the EPSRC/AHRC initiative in roboethics, appears in this week's issue (Issue 2811, 7 May 2011). These new draft ethical principles are an outcome of the joint EPSRC/AHRC workshop to discuss ethical, legal and societal issues in robotics, last September.! ..

Asimov’s laws updated: instead of 'laws for robots' our revision is a set of five draft 'ethical principles for robotics', i.e. moral precepts for researchers, designers, manufacturers, suppliers and maintainers of robots. We propose:

1. Robots are multi-use tools. Robots should not be designed solely or primarily to kill or harm humans, except in the interests of national security.
2. Humans, not robots, are responsible agents. Robots should be designed & operated as far as is practicable to comply with existing laws and fundamental rights & freedoms, including privacy.
3. Robots are products. They should be designed using processes which assure their safety and security.
4. Robots are manufactured artefacts. They should not be designed in a deceptive way to exploit vulnerable users; instead their machine nature should be transparent.
5. The person with legal responsibility for a robot should be attributed."

These are of course very top level rules, needing interpretation in particular cases (just as the original laws did). Further commentary on these by the group (which I wrote a fair bit of, so like :) can be found here.

We emphasise that these are working documents, intended to inspire discussion not lay down immutable laws - comments here or elsewhere are very welcome.

This seems a good time to also announce that, slightly bizarrely, Pangloss is speaking on robots at HowTheLightGetsIn, the Hay-on-Wye Philosophy and Music Festival, which is a satellite to the famous literary festival! No, I'm not running the karaoke. I am part of the panel below for which I somehow suspect tickets are still available ( a snip at £6!)..

2.30pm Sat May 29th 2011

Rise of the Machines

Lilian Edwards, Peter Hacker, Hilary Lawson. Henrietta Moore chairs.

From 2001 to The Matrix, intelligent machines have played a central role in our fictions. But for half a century Artificial Intelligence research has been stalled. Now advances in robotics and language translation have put AI back on the agenda. But is AI possible or just a science fiction fantasy? And should we be excited or fearful at the prospect?

Eminent Oxford philosopher Peter Hacker, lawyer and technology guru Lilian Edwards and post-postmodernist Hilary Lawson imagine a future ruled by machines.

See you there! There's also Cory Doctorow, Susan Greenfield and Evgeny Morozow on that weekend and many more -- geek paradise!