miscellaneous factZ - The online home of Rufus Pollock

Patricia Akester, a colleague of mine in the Centre for Intellectual Property and Information Law has just published the results of her recent research in the form of a 208 page report entitled Technological accommodation of conflicts between freedom of expression and DRM: the first empirical assessment.

There has been a lot of debate as to whether DRM/TPM can be used to go ‘beyond copyright’ and restrict legitimate uses of copyrighted material but little empirical work. Patricia’s work is therefore very valuable in providing the first systematic empirical data that we can use to assess what is going on. Here I’ll let her conclusions speak for herself but I strongly encourage readers to take a look at the study itself via the above link:

[From p. 99-100] This project looked at the impact of DRM on the ability of users to take advantage of certain exceptions to copyright. Based on a series of interviews with key organisations and individuals, involved in the use of copyright material and the development and deployment of DRM, this study examined how these issues are working out in practice. While the nightmarish vision of digital lock up has not materialised, this survey concluded, nevertheless , that significant problems do exist, and others can readily be foreseen:

1. Although DRM has not impacted on many acts permitted by law, certain permitted acts are being adversely affected by the use of DRM;
2. This is in spite of the existence of technological solutions (enabling partitioning and authentication of users. to accommodate those permitted acts (privileged exceptions.;
3. Beneficiaries of privileged exceptions who have been prevented from carrying out those permitted acts (because of the employment of DRM. have not used the complaints mechanism set out in UK law;
4. Article 6(4. of the Information Society Directive put an onus on content owners to accommodate privileged exceptions voluntarily. Voluntary measures have emerged in the publishing field, but not all content owners are ready to act unless they are told to do so by regulatory authorities.

These four conclusions will be explained in more detail and this will be followed by proposed solutions and recommendations.

Yesterday, the European Parliament voted on the term extension proposal.

Unfortunately though opposition was substantial it was not enough to prevent the modified (70-year) extension passing:

• Amendment in favour of the rejection: 222 IN FAVOUR, 370 AGAINST, 10 ABSTENTION
• Key amendment to ensure benefits only to performers: rejected (no roll-call vote so numbers unknown)
• All other good amendments (no ex-post, lifetime of performer only): rejected (~150 in favour 400 against)

Final vote: 317 in favour 178 against 37 abstention

Though this is a depressing result this is not yet the end of the matter by any means: the Council has not yet resolved its position and there is a possibility of a second reading.

The level of opposition was also impressive given that there was strong support for the extension not only from the rapporteur (Mr Crowley), but also from the main political groupings (EPP and PSE) led by their shadow rapporteurs Mr Toubon and Ms Gill respectively (on a fairly obscure issue such as this most MEPs will have little time to scrutinize the matter and will usually follow the “party line” as determined by the party rapporteur and coordinator for that dossier).

Tomorrow, the European Parliament will vote on the issue of copyright term extension for sound recordings, known in Parliamentese as “the Crowley Report (A6-0070/2009) on the Term of protection of copyright and related rights” (Mr Brian Crowley is the rapporteur for this report and a strong supporter of the extension).

Extending term would be a tragic mistake and a blatant example of special-interest lobbying winning out of the interests of society as a whole.

Let us therefore hope that the proposal is rejected.

That’s the line being by some right-thinking MEPs including Eva Lichtenberger, Greens, Sharon Bowles, ALDE, Andrew Duff, ALDE, Zuzana Roithova, EPP, Christofer Fjellner, EPP, Guy Bono, PSE who have put forward a rejection amendment (see their excellent justification below). But they need all the support they can get and remember: it is never too late to act.

Rejection Amendment Justification

The draft Directive is poorly conceived and disproportionate. The Commission claims that the measure is needed in order to benefit poor performers. However, the proposed regulation and procedure is complicated and over-bureaucratic. The biggest beneficiaries will be the four largest record companies. Individual performers will only receive very small amounts each.

Performers could be helped much more effectively by regulating copyright contracts and collecting societies, by setting up appropriate social security and insurance schemes, and by reconsidering remuneration rights and license tariffs.

The draft Directive leaves a large number of questions unanswered. Additional impact assessments are needed to see which measures are best suited to help those performers really in need, to limit the negative impact on consumers and jobs, and to establish if regulation is best done at state or EU level. In these circumstances, it is not wise to proceed to make the long-term permanent changes proposed.

Some of the particular problems are:

The extension of copyright to 95 or even 70 years will increase the revenue of trust funds of deceased performers instead of living performers.

Many performers cannot produce proof for the performances they participated in during the past decades. It then becomes difficult to assess their rights to payments.

The proposed regulation could cause legal uncertainty for all existing audiovisual productions as it will be unclear if the material used is subject to sound copyright.

There is a risk that all material that is not commercially viable will not be marketed by the copyright owners and will become inaccessible for public use.

Small record companies currently publishing copyright-free material risk going bankrupt.

Yesterday (Monday) The Times published an open letter signed by many of the leading UK academics concerned with the issue of copyright term extension.

The letter, of which I was a signatory, is focused on the change in the UK government’s position (from one of opposition to a term extension to, it appears, one of allowing an extension “perhaps to 70 years”). However, it is noteworthy that this is only one in a long line long line of well-nigh universal opposition among scholars to this proposal to extend copyright term.

For example, last April a joint letter was sent to the Commission signed by more than 30 of the most eminent European (and a few US) economists who have worked on intellectual property issues (including several Nobel prize winners, the Presidents of the EEA and RES, etc). The letter made very clear that term extension was considered to be a serious mistake (you can find a cached copy of this letter online here). More recently — only two weeks ago — the main European centres of IP law issued a statement (addendum) reiterating their concerns and calling for a rejection of the current proposal.

Despite this well-nigh universal opposition from IP experts the Commission put forward a proposal last July to extend term from 50 to 95 years (retrospectively as well as prospectively). That proposal is now in the final stages of its consideration by the European Parliament and Council. We can only hope that they will understand the basic point that an extension of the form proposed must inevitably to more harm than good to the welfare of the EU and should therefore be opposed.

The Letter

Dear Minister,

Open Letter re. Proposed Copyright Term Extension for Sound Recordings

We are writing because of the sudden, and unexplained, change of Government position in relation to copyright term extension for sound recordings.

In 2006, the Government received the recommendations of an independent and comprehensive review of intellectual property policy, commissioned by the then Chancellor Gordon Brown. The review, led by Andrew Gowers (a former editor of the Financial Times) took “an evidence-based approach to its policy analysis”, supplementing a formal call for evidence with commissioned external expertise.

The review examined several extension options, including the increase to 70 years, and explicitly rejected extension as being a bad deal for the UK in cultural and economic terms. The Government, led by the Treasury which was then headed by Gordon Brown, clearly supported this view.

What then occasions a sudden volte-face two years later and only a few weeks after statements from the Department for Innovation, Universities and Skills (DIUS) indicating support for the original decision? We are not aware of any new evidence that has come to light, and the only independent study available since then, that of Professor Hugenholtz at the University of Amsterdam, has also been highly critical of extension.

There has been some talk of ‘moral arguments’ for extension but it is hard to discern a compelling ‘moral’ case for a proposal whose prime effect is to benefit major label shareholders and a few, already highly successful, artists while imposing significantly greater costs on new creators, the general listening public and the custodians of our cultural heritage.

As Gowers concluded, and the Government has until now consistently reaffirmed, policy-making in this area should be evidence-based and designed to promote the broader welfare of society as a whole. Policies that appear to reflect nothing more than lobbying will only perpetuate the “marked lack of public legitimacy” which the Gowers report lamented — and discourage those who wish to contribute constructively to future Government policy-making in these areas. We therefore call on the Government to present any evidence that has led to this change of policy.

Yours Sincerely,

Professor Lionel Bently, and Dr Rufus Pollock, Centre for Intellectual Property and Information Law, University of Cambridge

Professor Martin Kretschmer, and Professor Ruth Towse, Centre for Intellectual Property Policy & Management, Bournemouth University

Professor Nicholas Cook, AHRC Research Centre for the History and Analysis of Recorded Music, Royal Holloway, University of London

Professor P.A. David, Emeritus Professor of Economics and Economic History, University of Oxford

Professor Graeme Dinwoodie, Chair in Intellectual Property Law, Queen Mary College, University of London

Professor Johanna Gibson, Director Queen Mary Intellectual Property Research Institute, Queen Mary College, University of London

Professor John Kay, Chair, British Academy Copyright Review

Professor Paul Klemperer, Edgeworth Professor of Economics, University of Oxford

Professor Hector MacQueen, and Professor Charlotte Waelde, SCRIPT/AHRC Centre Intellectual Property & Technology Law, University of Edinburgh

Professor David M Newbery, Professor of Economics, University of Cambridge

Dr Mark Percival, Queen Margaret University, Edinburgh, Chair, International Association for the Study of Popular Music (UK/IRL)

Dr Martin Cloonan, Senior Lecturer, University of Glasgow, ex-Chair, International Association for the Study of Popular Music (UK/IRL)

Professor Danny Quah, Professor of Economics, London School of Economics

Professor David Vaver, former Reuters Professor of IP and IP Law and Director of the Intellectual Property Research Centre, University of Oxford

Richard Chesser, Chair, Trade and Copyright Committee, International Association of Music Librarians (UK/IRL)

Lots of people have been up in arms about a letter sent out by Ordnance Survey about the “Use of Google Maps for display and promotion purposes”. With titles like “Are the Show Us A Better Way winners safe from Ordnance Survey?” (Guardian), “Home Secretary’s crime maps not allowed say Ordnance Survey” (localgov.co.uk) or “The mapping mess - Google v OS” (bbc.co.uk) these seemed to indicate some particularly unreasonable behaviour by OS.

However, after actually reading the original OS letter I’m far from convinced. In essence OS say:

• If you have created the data yourself you can do whatever you like with it including plotting it on Google maps.
• However, if you have derived the data from an OS map then you can’t. You can’t because a) as derived data OS have rights in it b) plotting it on a Google map according to Google’s to T&C gives Google a perpetual, royalty-free license to that data. Since, unsurprisingly (and not unreasonably) OS don’t want to give Google such a license they don’t want you plotting it on a Google map.
• What the implications of this are then depend heavily on:
  1. Whether Google will change their licensing conditions (at least for their free service)
  2. What derived data is

Much of the discussion centred on the last of these items: what is derived data? OS state:

Simply put, Ordnance Survey derived data is any data created using Ordnance Survey base data. For example, if you capture a polygon or a point or any other feature using any Ordnance Survey data, either in its data form or as a background context to the polygon/point/other feature capture, this would constitute derived data.

It should also be borne in mind that data from other suppliers may be based on Ordnance Survey material, and thus the above considerations may still apply. We therefore recommend that you verify whether any third-party mapping you use may have been created in some way from Ordnance Survey data before displaying it on Google Maps.

NOTE: Again, the answer to this question is based on our understanding of which of Google’s standard terms and conditions we believe would apply. In the event that Google is prepared to offer you terms and conditions which do not involve you purporting to grant Google a licence of Ordnance Survey base or derived data, we would have no objection to your hosting such data on top of Google Maps in this scenario.

My understanding of this is that if you extract the geodata from an OS map (i.e. polygon, points, features) by some extraction method (such as tracing) then that’s derived data and OS can control what you do. This is pretty standard: if I copy text from a book by typing it out longhand I’m still infringing copyright.

However, this does not mean if I’m using OS maps as a base-layer and, for example, by clicking at some particular point I generate a lat-long (say to indicate where I live, or where a crime happened) then that lat-long is ‘derived’ data.

Now, of course, this could be a fine line: if I happened to click on a bunch of points, say to indicate a walk I went on, and these also showed the route of road there could be debate as to whether I’m infringing the OS rights in the feature or not.

Nevertheless, the basic principle (as I understand it) is clear: geodata created when using OS tools and maps is always yours unless it is directly replicating the underlying OS data. If this interpretation is correct then this whole debate is a bit of a storm in a teacup and projects such as crime-mapping or providing a loofinder aren’t at any risk from OS’s licensing terms.

Following up on their commitments in the 2008 Budget (see previous post dealing on publication of ‘Cambridge Study’ today BERR and HMT announced a review of Trading Funds. It will be run by the Shareholder Executive with input from HMT and OPSI. The main task of this review, according to the announcement, is to:

… examine the impact on the trading funds’ business models of any changes to the current pricing, accessing and licensing regimes with the aim of:

• distinguishing more clearly what information is required by Government for public policy
• ensuring that this information is available as widely as possible in order to maximise the benefits to the wider UK economy, at a price that balances the provision of such access with the need for users to make a fair contribution to the cost of collecting the information in the long term.

The policy objectives of each of the trading funds will not form part of the assessment, but the review will consider the future of the trading fund model and how it impacts on the delivery of these objectives.