Over The Counter Culture

I’m surprised I didn’t catch this in the mainstream press

Stifling bureaucracy is often blamed for discouraging scientists and businesses from participating in the research programmes of the European Commission (EC). But the commission’s notoriously cumbersome procedures and rigid control mechanisms have apparently not prevented a criminal syndicate from conducting a brazen fraud that has siphoned off millions in EC grant funds.

Italian authorities and the European Anti-Fraud Office (OLAF) in Brussels, Belgium, have confirmed that they are prosecuting members of a large network accused of pocketing more than €50 million (US$72 million) in EC grants for fake research projects.

Read more here: http://www.nature.com/news/2011/110615/full/474265a.html

The heel dragging is over: just three weeks before the legal deadline for the incorporation of EU changes to online tracking and data protection laws (set out in Directive2009/136/EC) expired, the UK government has finally implemented those changes (too little, too late?). There will be a total of three Statutory Instrument delivering the amendments*; the main one, published very recently, is The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 No. 1208) is here: http://www.legislation.gov.uk/uksi/2011/1208/made

What key changes does it make?

•  Personal data breaches will now have to be notified to the Information Commissioner;  
• Stronger enforcement provisions; and  
• Consumers will now have to give their consent for the import of cookies on to their machines

Beyond more obvious data protection provisions, like the definition of a ‘personal data breach’ (and according duty to notify the Information Commissioner and the victim – backed by a £1,000 fine, reduced to £800 if paid within 21 days), they also force service providers to take proportionate measures to protect personal data stored or transmitted against accidental or unlawful destruction, accidental loss or alteration. If your webmail was deleted, for example, this may give rise to a breach of statutory duty by the service provider. It does away with allowance for implied consents largely throughout communications law insofar as it relates to businesses using user data or monitoring user usage of services (express consent is now king).

Regulation 10 makes provision to allow police and the security services to have access to personal data of users of public electronic communications networks and services. It also makes provision to compel service providers to establish and maintain procedures to allow access to that data.

Fines for noncompliance with the regulations are now considerably more severe, as they now reflect Data Protection Act fines (of up to £500,000 for grave breaches).

* The three implementing statutory instruments to look out for are:

1. The Electronic Communications (Universal Service) (Amendment) Order 2011;
2. The Electronic Communications and Wireless Telegraphy Regulations 2011; and
3. The Communications Act 2003 (Maximum Penalty for Contravention of Information Requirements) Order 2011

NB: Be aware that, rather unhelpfully, the UK’s main store of legislation (legislation.gov.uk) does not update the text of secondary legislation (such as these Regulations) when they get amended, so it’s unlikely that when browsing the official register of such laws, you’re actually getting an accurate picture of the law. Just saying.

A paragraph taken from a letter written by (or on behalf of) the Rt Hon Jeremy Hunt MP, Secretary of State for Culture, Olympics, Media and Sport, to a Member of the UK Parliament, who had expressed their voters’ concerns over the government’s moves to encourage ISPs to block websites aimed ‘primarily’ at copyright infringement:

“Many users of infringing sites may be unaware that the sites they are viewing carry content unlawfully, and they may find it useful for such unlawful sites to be less readily available.”

Just… wow. Orwell would be proud of such a literary creation. I thought previous New Labour governments were Big Nanny, but this is just absurd. A website owner does not have full rights to the words on the website. Please, Mr ISP, take an active and detailed concern in what websites I visit, and save me from the commercial horror!

Full letter available from its eventual recipient, Matthew Temple (http://www.mattytemple.com/)

(I’m posting what should be a comment on this blogpost by @legalbrat (Tim Bratton, legal in-house at the Financial Times) but for some reason won’t go through). Tim knows his stuff and bats hard and well for his employers, but has a fair and intelligent approach to digital content issues. It’s well worth reading his blog and following him on Twitter.

On this issue, we disagree.

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Tim – I feel this misses Google’s point almost entirely. How does cheaper dispute resolution help a business that argues that it the reason it could build a billion-dollar business based on creating value for users is that the US doesn’t grant as far-reaching intellectual monopolies as the UK does. It thrives, and employs tens of thousands of people, without relying so heavily on monopoly-backed scarcity, whereas the harder our industries try to do so (no videos on YouTube, unfair, draconian DRM, paywalls, even rootkits), the harder the market has punished them.

I’ll return to this, but I feel it’s only fair to address your suggestion more head-on, first.

If ADR is the solution, we already (post Woolf reforms) have CPR costs biases in favour of parties that want to pursue cheaper alternatives to lawsuits (see this important bit of our litigation rules, the Civil Procedure Rules’ Pre-Action Protocol). So far as I know, this includes copyright, so what can be added? Why is it not working (if indeed it isn’t?)

Would a singular ADR mechanism be better than the free choice of ADR given to parties at the moment? I don’t think it will.

The copyright industries have so far proven themselves to be tremendously capable and ardent lobbyists. A single ADR ‘choke point’ is a wonderful opportunity for focused and (cost-) effective lobbying – especially when, as you suggested, it should be staffed by industry practitioners (and where are the representatives of institutions, academics and other noncommercial/non-market users?). This allows the straightforward corrupting influence of the ‘revolving door’ effect into an ADR process, whereas other ADR is usually overseen by barristers or off-duty judges. I can’t help but allege that other forms of corruption would also find purchase in this suggested system, all the more so because (presumably) the RCP would be protected from legal liability from its decisions, so systematic misrepresentations of the law would go unpunished.

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Now, to return to the part about the UK’s overstrong copyright system. As I said, Google built a billion-dollar, 20,000-staff-strong business because it wasn’t overly restricted by intellectual monopoly. So pointing them to ADR doesn’t really help, when it says that such monopolies / IP rights are too strong in the UK.

But what ADR suggestions also totally, totally miss is the fact that the once-professional copyright arena is now swamped with millions upon millions of non-market participants. The digital era has made everyone with an email account or an iPhone a publisher. Copyright law *has* to evolve to match the revolution in who it binds. And only block exemption and DRM, not ADR, can meet that need.

I am not going to pay hundreds of pounds to ask a Pearson-staffed panel whether I can send my mum one paragraph or two of an FT article that talks about me. WhatDoTheyKnow is not a business – so it has no business model into which in can fit/attenuate the cost of ADR when a council relies on copyright to prevent WDTK from publishing/publicising FOI returns.

There is no conceivable way in which non-market copyright actors can stomach the cost of either ADR or full-on litigation. Either nonmarket uses are granted appropriate block exemption, or they must be asked to remove themselves from the copyright arena – hand in any device capable of copying text, images, sound or video (or have it taken from you after three strikes).