My report for WIPO on filesharing and intermediaries

Briefly, WIPO has just released two studies on copyright, intermediaries, filesharing and implications such as the rise of graduated response, the first of which I prepared:

A. Role and Responsibility of the Internet Intermediaries in the Field of Copyright, by Professor Lilian Edwards

This Study aims to identify the trends and principles governing the changing role of Internet intermediaries, summarizing the evolution of business models and outlining the complex issues to be considered in developing public policy in this field.

B. Comparative Analysis of National Approaches of the Liability of the Internet Intermediaries, by Professor Daniel Seng and Professor Juan Jose Marin

In this second Study, Professors Seng and Marin seek to identify the possible commonalities among different liability doctrines. The Study is divided into two parts, the first consisting of a “Survey of National Legislation and Jurisprudence on the Liability of Internet Intermediaries in the Field of Copyright and Related Rights”, covering 30 jurisdictions¹. The second contains a conclusion resulting from the Survey, which defines trends and commonalities in the treatment of the responsibility of Internet intermediaries.

Both (I would modestly suggest) are worth a read , though the second as so far issued is empirical description, no conclusions yet. They do however dovetail usefully. My report's tentative conclusions are:

• - Global consensus on NTD as sensible balance between rightsholders and intermediaries broken in copyright field

• - No consensus on replacement regime

• - Graduated response (GR) solutions are costly, error prone and sanction may be disproportionate; pose serious risks to fundamental rights and public interest in digital inclusion; and their effectiveness is unproven.

• - Accordingly recommended that any attempt to impose GR by law should be justified by prior, independent ,empirical investigation, taking into account not just economic factors but also (i) impact on fundamental freedoms (ii) public interest in digital inclusion and promotion of innovation and (iii) state of incentives to create a market of legal alternatives to illicit filesharing.

• - If GR regimes are so justified, regimes should be introduced via legislation, subject to constitutional scrutiny , rather than by voluntary or coerced action

• - Solutions imposing fewer costs on user and public interests should be adopted first, eg, “notice and notice” rather than notice and disconnection, and empirically monitored to see if they prove sufficient

• - International treaty should lay down rules on safeguards to be observed in any GR regime imposed by law. In particular, independent and transparent scrutiny of allegations of infringement before sanction, as well as judicial appeal after such, is vital.

• - Website and content blocking and blanket monitoring in particular should both be subject to stringent scrutiny as presumptively in breach of fundamental freedoms.

The - The international community should give pressing attention to what legal steps must be taken to facilitate and incentivise new business models for monetising digital content.

I just spoke to WIPO's Standing Commitee re the report which I may say more about later (currently leaching the free wi fi at Geneva Airport. ) I also had request for the slides I used which summarise the rather long report : WIPO is putting these up itself but I will try to add them here too shortly.

Wow, NOT a File Sharing Consultation..

.. and not three strikes!

Instead the EU with remarkable common sense has issued a Communication suggesting some non legislative ways to (additionally) crack down on filesharing and counterfeit sales on the Internet.

"The Commission aims to ensure a highly efficient, proportionate and predictable system of enforcement of intellectual property rights, both within and outside the internal market. The current legal framework provides the tools to enforce intellectual property rights in a fair, effective and proportionate way.

Complementing legislation, the actions in this Communication aim to:

• support enforcement through a new EU Observatory on counterfeiting and piracy which will bring together national representatives, private sector experts and consumers to work to collect data on and analyse the scope and scale of the problem, share information, promote best practices and strategies, raise awareness and propose solutions to key problems;

• foster administrative cooperation across Europe by developing coordination to ensure that more effective exchanges of information and mutual assistance can take place. As a result, Member States are called to designate National Coordinators. An electronic network for information sharing will also need to be available .

• build coalitions between stakeholders to overcome conflicts and disputes, by developing collaborative voluntary arrangements that focus on concrete problems, such as the sale of counterfeit goods over the internet, and are capable to adapt quickly to changing markets and technology. Such agreements can also be more easily extended beyond the EU and become the foundation for best practice at global level.

The Communication results from the Commission's IPR Strategy for Europe adopted last year and builds upon the recent Council Resolution on a comprehensive European anti-counterfeiting and anti-piracy plan."

Naturally, content industry unimpressed:-)

(via Michael Geist)

EDIT: Meanwhile however one asks of course, but what of the Telecoms Package and when is the conciliation process taking place, after the failure of the second reading procedure?

Helpfully , the new EDRI-gram tells us :

"Preparations are being made in the EU institutions for the expected third
reading of the Telecom Package. The timescale for the remainder of the
legislative process will be determined by the official communication of the
Council Common Positions to the Parliament. In theory, this can happen as
late as mid-October, meaning that the final agreement could happen as late
as the end of November or early December.

..The Member States can be expected to push for as much of the Common
Position as possible to be retained and to push again for the
"compromise" that was agreed with the Parliament negotiators on
Amendment 138 in the first reading (but not adopted). "

Watch this space!

Five Strikes And Counting: the Future of Digital Britain/Europe/Canada?

Re Sarkozy's latest revamp of HADOPI, I don't think I can face saying anything except, oh good grief Charlie Brown. Still I suppose judicial oversight IS actually what we want (if it's real and not just rubber stamp)t, so it's kind of good news :) (well we want so much more, like sense, but will we ever get it?)

Oddly, only three days ago, no one less than the multitalented Daniel Gervais reassured me (at the HK conference again, natch) that the French Constitutional Court decision, declaring 3 Strikes an unconstitutional limitation on access to knowledge and speech, was the definite end of HADOPI, for good. Mais non!

This is all the sadder as Daniel himself was at the time outlining a proposal he has developed with the Songwriter's Association of Canada, for a terrific flat rate levy "all you can download" system to be tried out in that country. Long time readers will recall Pangloss has long been a fan of flatrate levies to legitimise filesharing and provide proper creator revenues, removing the need for litigation and sanctions which often threaten human rights: but the brilliance of this scheme is that it is voluntary, but with incentives likely to make it viably near-universal.

Users will be able to opt in to paying a flat rate payment per month (added on to their monthly ISP bill) and then download any amount of music from Canadian-distributing record companies, perfectly legally. If you choose not to opt in, however, this is perfectly Ok but you have to sign a declaration saying you do not fileshare. Any subsequent discovery to the contrary is like to to be judged unkindly by the courts :) and it is likely that (rather as with those who don't pay a TV license fee in the UK) you would go on a "watch carefully" list (though this part was vague in detail yet).

Money collected by ISPs as part of monthly billing is simply handed over to existing collecting societies who distribute it as usual. ISPS are incentivised to take past becauze they save money by providing the digital music access via P2P, a la BBC's iPlayer - thus vastly reducing their bandwidth issues, and removing any need to monitor, filter or "traffic manage".

Simple, sensible, good human rights, good for artists, good for users, and a good combination of carrot and sticks. ISPs too can choose to opt in or out - how different from the acts of our own dear government, still determined to dragoon UK ISPs into propping up a failing business model, alienating their own client base and potentially breaching fundamental rights.

In the UK the nearest we yet have to this scheme among the big ISPs (leaving aside small innovative players like PlayLouder here) has emerged from Virgin's announcement that (from the Beeb) :"

For a monthly fee, Virgin's broadband customers will be able to download or stream as many MP3 files as they want.As part of the deal, Virgin has pledged to aggressively police usage to stop the MP3 tracks turning up on file-sharing networks."

The problem is that Virgin's all you can eat deal only covers Universal artists. Virgin say it is in talks to add other music firms' back catalogues to the service. But are there any prospects of all the major labels coming in, as in the Canadian scheme, to make legal P2P as attractive as the illegal version? Pigs might fly, seems the general gist of the informed response.

Which brings me back to to the newly released final Digital Britain report. Pangloss will have to take this one home, but the Beeb reports as highlights:

"The main points outlined in the report include:

• a three-year plan to boost digital participation

• universal access to broadband by 2012

• fund to invest in next generation broadband

• digital radio upgrade by 2015

• liberalisation of 3G spectrum

• legal and regulatory attack on digital piracy

• support for public service content partnerships

• changed role for Channel 4

• consultation on how to fund local, national and regional news

One of the biggest surprises in the report was the promise to introduce a levy on fixed telephone lines in order to pay for broadband rollout.

It will amount to a 50p a month tax for every household in the country with a fixed phone line."

On filesharing specifically: (para 46)

"...thirdly we aim to provide for a graduated response by rights-holders and ISPs
so that they can use the civil law to the full to deter the hard core of users who
wilfully continue unlawful activity. The Government intends to provide
initially for Ofcom to have a duty to secure a significant reduction in
unlawful file sharing by imposing two specific obligations: notification of unlawful activity and, for repeat-infringers, a court-based process of
identity release and civil action.

The Government is also providing for intermediate technical measures by ISPs, such as bandwidth reduction or protocol blocking, if the two main obligations have been reasonably tried but, against expectations, shown not to have worked within a reasonable but also reasonably brisk period."

Reportedly, the aim will be for these tactics to reduce illegal file sharing by 70%. Quite a target given rough guesses that 90% plus of downloading is currentkly unauthorised.

Same old, same old. So we can, it seems, organise a levy to pay for rural broadband - which every person in the country will have to pay, whether they use it or not and are urban or rural - but are unwilling to contemplate a system like the Canadian voluntary levy, where those who don't want to fileshare simply get to opt out, and those who do, get to pay a sensible amount instead of being slowed down till they can no longer use the Net for useful stuff like jobs, education and social interaction. Sigh. Double sigh. No more: I've said it all before.

One faint piece of good news is that as the Guardian notes:

"The final report does not contain any suggestion of a statutory "rights agency" that would try to reduce copyright infringement online, as was suggested in the interim report released earlier this year – to widespread criticism. Instead, the final report says "we hope that an industry body ... will come into being to draft these codes [of practice for identifying offenders] for Ofcom to approve and we would encourage all rights holders and ISPs to play a role in this."

So we don't have to pay the levy to pay for the SRA anyway. Not yet anyway. Small comfort :-) Note the codes are still to be drafted by the industry and approved by Ofcom , with a thumbs up from ISPs and rightsholders. Where is the consumer voice in all this??? In the words of Chirpy Chirpy Cheep Cheep, apparently far, far away...

Countdown to the Digital Britain report..

Latest from The Times:

"Internet service providers will not be forced to disconnect users who
repeatedly flout the law by illegally sharing music and video files, The
Times has learnt.

Andy Burnham, the Culture Secretary, said last year that the Government
had "serious legislative intent" to compel internet companies to cut off
customers who ignore warnings not to pirate material.

However, in an interview with The Times, David Lammy, the Intellectual
Property Minister, said that the Government had ruled out legislating to
force ISPs to disconnect such users. "

The official announcement's now been delayed again, and against all rumour was not trailed at last week's Oxford Media conference. Looks like BERR're finding this one a wee bit tricky. Could that have anything to do with the music industry forcing Virgin to abandon its legal P2P offering? Remember the deal the Memorandum of Understanding offered back in July was new sanctions against filesharers, but only in return for new business models and in particular new legal ways to access music online using P2P .. not much sign of that..

Gowers Rides Again

Stunning polemic by Andrew Gowers, author of the eponymous report, in the FT today. Disses term extension of sound recording copyright, and the "moral case" for it, as the lobby-driven, celebrity-star-struck tosh it is, but also says much much more. Bravo.

"First, to music companies: you have moved beyond trying to close the internet down as a distribution channel, but you have still not done enough to exploit the swirl of creative and commercial opportunities unleashed by the world of social networks and web 2.0. Please focus on innovation, not on trying to eke more rent from the successes of yesteryear.

Second, to policymakers: many of you are debating how government can support business in these challenging times, and that is fine. But you would do well to pick the targets for assistance and the instruments you use with care. Get it wrong, and you will end up looking silly and out of touch like Mr Burnham."

MEPs condemn 3 strikes and you're out

Via Ray Corrigan and Cory Doctorow:

" Danny sez, "Last year, Euro Boing Boing readers wrote and called their MEPs to complain about European Union proposals advocating Internet filtering and blocking on behalf of the music industry. Not only were the amendments voted down, but now ninety MEPs from across the political spectrum have tabled a new text which condemns IFPI's plans to exile from the Net anyone they accuse three times of file-sharing:"

Calls on the Commission and the Member States to recognise that the Internet is a vast platform for cultural expression, access to knowledge, and democratic participation in European creativity, bringing generations together through the information society; calls on the Commission and the Member States, therefore, to avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access.

(Translations into other EU languages here.)

"Among the advocates of the new language is Michel Rochard, the former Prime Minister of France. That's significant because present French PM Sarkozy is the only Euro leader currently seriously considering implementing IFPI's three strikes plan. With this kind of opposition, it looks like France might remain an anomaly, if it doesn't abandon the plans entirely.""

3 Strikes And You're Out talk from LSE conference

Ray Corrigan, one of the finest IT law bloggers on the block, has, incredibly helpfully, while I frolicked for the long Easter weekend, written up an account of my talk on the dubious legality of the posited "3 strikes and you're out" legislation which, if passed, would mandate disconnection of repeat filesharers in the UK from the Internet.

See http://b2fxxx.blogspot.com/2008/03/3-strikes-copyright.html (thanks Ray.)

There is also a third ground of possible illegality of any proposed "notice and disconnection" regime, , other than its transgression of due process and lack of propartionality with respect to human rights. I did not have time to get to this at the conference so Ray has not mentioned it - namely that in order to prevent an "it wasnae me" defense (as we say in Glasgow), legislation might also require the mandating of secured wi-fi for every user who maintains a wireless router. Without such a rule, every uploader could theoreticaly claim it was not them but a wi-fi piggy-backer who committed the "offence".

Currently, users are usually advised to make their wi-fi network secure, and most ISP T & Cs theoretically demand it, but many prominent security experts, notably including Bruce Schneier, deliberately keep their networks open (while maintaining high quality virus checking ware and firewalls for the security of their own data). they do son mainly on the grounds that the mobile Internet ought to be a public resource for those in transit or in public areas, like toilets or water fountains. Breach of a term imposing secure wi-fi only by an ISP may currently be a breach of contract which might conceivably lead the particular ISP in question to , legitimately, disconnect the user; but it would not, as "3 strikes" would, mean that user is then sent to Internet Coventry by every ISP in the country.

Cutting off the choice of providing public wi-fi to the user on pain of banishment from the Internet, raises obvious issues itself of infringement of freedom of expression and association. Avaiability of unsecured wi-fi in public areas, say, in parks or on streets or at emergencies, is also arguably , as Schneier and co believe, a public good. Given that, it should be asked whether a proper balance is being maintained if we legislate to ban an asset of general public interest, in order to protect the legitimate property interests of one narrow commercial sector. It also raises the question of whether a wi-fi operator might be a "mere conduit" under the E-Commerce Directive, Art 12, and if so whether, in effect, strict liability for other people's misdeeds can be imposed on such operators without infringing EC law.

This point is dealt with in my powerpoint which I believe will be soon up on the relevant website along with other slides from the day. Will add URL shortly.

I think the best point raised during the day which I had not really considered at all before, was how long a general ban or disconnection after notice would last. (I think this came from Michelle Childs, but I am not totally sure.) Does a foolish upload or two by a teenager in your house mean that dad and/or mum is banned from the Internet forever? Even when we talk of true criminal sanctions (and copyright is at root a civil matter), jail terms (bar "life means life" for murder) have to be of defined length. Do we want a world where ISPs are ordered by the content industry to patrol indefinite lifetime bans from the Internet? Would legislation include provisions for appeals after a certain time and has anyone thought through the due process ramifications? The more you think about it, the more damningly flawed the whole idea is.

In France, at least, the whole process is going to be under the supervision of an independent tribunal given directions by a judge. If we do end up going down this route in legislation, the French system should be the minimum starting point for transparency and due process. I hope instead however that the UK government and BERR will, after due consideration, decide this approach, with all its capacity for disproportionate human right infringement and errors in proof and process, is not a suitable way to police filesharing, when so many other routes exist.