Web activists beat TV industry
OUT-LAW Radio, 28/06/2007
We hear about the web activism campaign that changed WIPO
policy, and talk to a publishing exec who took the law temporarily
into his own hands.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome back to OUT-LAW Radio; we are refreshed after
our little break, and hope you are too, and are ready to hear all
about the constantly shifting world of technology law.
Every week we try to help you to make sense of the twisty,
turning tech law world with the best news and features in town, and
some expert analysis along the way.
My name is Matthew Magee, and this week we talk to a campaigner
who took on the sprawling World Intellectual Property Organisation
and beat the might of nations, and we talk also to a publishing
executive who took the law in to his own hands in a spat with
Google.
But first, the news:
- First round of copyright bout ends in stalemate; and
- MP’s slam freedom of information changes.
The first stage in the first copyright infringement suit against
video sharing giant YouTube has ended in stalemate. Both sides in
the fight applied for an initial judgment against the other, but
neither was granted and the case will now proceed further.
Journalist and helicopter pilot Robert Tur's case is the first
copyright case against YouTube to reach the court. Tur is the owner
of news footage of dramatic events such as a car chase involving OJ
Simpson and the 1992 Los Angeles riots. He sued YouTube because
users had posted and viewed some of his footage on the site.
Both sides in the case wanted Judge Florence-Marie Cooper of the
US District Court for the Central District of California to rule in
their favour with a summary judgment. Judge Cooper rejected those
applications and the case will proceed to the next stage of the
trial.
The Government's plans to limit requests under the Freedom of
Information (FOI) Act should be blocked, according to a
parliamentary committee. It also said that watchdog the Information
Commissioner's Office (ICO) should be better funded.
The constitutional affairs select committee said that government
plans to limit FOI requests did not adequately balance the costs
and the public's rights to know about public bodies. It said that
the proposed limitations would not be transparent or accountable to
the public.
Last year the Government proposed restricting public and media
access to information by cutting requests which were complex or
took large amounts of time to fulfil.
The Government published its plans last December, but the outcry
which followed forced it to begin a supplementary consultation
process which threw doubt on the plans. The committee's report
could further weaken the Government case for change.
That was this week's OUT-LAW news.
It was a battle many wrote off as being long lost over an issue
only a few hardcore lobbyists and backroom bureaucrats really
understood. But in the end an obscure meeting of a World
Intellectual Property Organisation committee last week provided the
stage for something of a coup, as the massed ranks of the world's
bloggers and podcasters thwarted the governments of the world and
their plan to create a whole new intellectual property right.
It was a complicated struggle over legalistic minutiae, but
campaigners and activists believed the stakes were high and the
implications simple. WIPO wanted to give broadcasters new rights
over the content that they showed. To do so would have eroded the
rights and control that content creators had over their work, said
opponents.
One of the strongest opposing voices in the dispute was that of
the Electronic Frontier Foundation, a digital rights activism
group. Its international affairs director Gwen Hinze was camped out
at the WIPO meeting. She told us about the opposition to the
plans.
Hinze: If you create a new layer of rights that
sit on top of copyright from a consumer’s point of view that raises
issues about access to information so information that might be in
the public domain as a matter of copyright law, so under copyright
law would be, you would have the ability to access that information
also the ability to access information that you would be permitted
to use under copyright law. So for instance where there are
exceptions and limitations that would allow consumers, educators,
libraries, researchers to access information those same exceptions
and limitations would not apply with these new layer of rights and
so that raises some concerns about access to knowledge.
WIPO was in the very last stages of finalising its plan to
create a new right for broadcasters over the content they show.
Designed to help protect against television piracy, the right was
broad ranging and not subject to the exemptions and exceptions that
in copyright law guarantee access to material for educational
purposes, fair use or by disabled users. Podcasters feared that the
new rule will extend rights to their material, while concerns
reached into the heard of the industry: consumer electronics
companies feared that technological protection measures would give
broadcasters a lock on TV recording equipment, while telecoms
carriers feared it would open them up to new liabilities for
relaying content.
Hinze: Many people would be affected by the new
treaty. The way it was formulated was extremely broad. I think once
people understood the suite of issues that were involved with
creating an exclusive, a new set of exclusive rights that would sit
over the top of copyright law, and once people understood the
breadth of the technological protection measure and the implication
that would have for technology innovation for freedom of expression
on the internet and also for competition policy it was natural for
the technology industry to have consensus over this and likewise
the internet intermediary industry.
Likewise from the grass roots point of view it makes perfect
sense for the podcasters to be concerned about the impact of the
treaty's rights on their ability to continue what they're doing
lawfully under national copyright systems. As you know podcasters
already face huge hurdles in getting rights clearances and this
layer would add more complexity on top of that.
There is another way that broadcasters' rights can be protected.
Called the signal based approach, it is the same kind of protection
that a 1970s satellite television agreement created. This could
guard TV signals and keep podcasters and rights owners happy. The
broadcasters rejected it out of hand.
Hinze: There is quite a significant body of
people who have joined together and would support a signal based
approach to a treaty. So for instance in January there was a joint
statement from a number of civil society groups a number of tech
companies and a number of library representatives all in support of
a signal based approach so giving broad casters and cable casters
protection for the legitimate protection of their signals but not
creating the exclusive rights approach that would have the set of
unintended consequences that I have just raised.
What actually happened last week is complicated, but the result
is simple. The copyright committee was to recommend that its
proposal proceed to the next stage at which WIPO would ratify it.
Instead, due to pressure by activists and industry, the proposal
was sent back to the drawing board, from which it may never
return.
WIPO decisions are made behind closed doors by national
governments, but Hinze and others marshalled a formidable force of
diverse interests that managed to influence enough governments to
change WIPO's direction.
Hinze: All the major technology industry
players came together in a very unprecedented move and put forward
a joint statement to WIPO expressing our concerns with the current
formulation and expressing support for a more limited and narrower
focus. I am honoured that we were able to present an open letter to
WIPO with over fifteen hundred podcasters names on it. Podcasters
have not had a voice at these negotiations at all so I was honoured
to play that role and to be able to give the internet community a
voice where they did not have one before.
Maybe this was just a tussle over a legal nicety. But maybe it
was something more. granted, major industrial forces such as Intel
stood side by side with campaigners and no doubt had an effect, but
this could still be seen in times to come as the point at which
online activism stood up to the big boys and won.
Hinze: What I would like to do is say thank you
to the people who took an active interest in understanding what
seems like an obscure issue happening in the marble halls of
Geneva. It is not, these treaties are not self executing in
countries’ laws but they do create an international precedent that
could have, if they had been adopted in the form last week, could
have stifled internet innovation and could have stifled freedom of
expression.
It was as close to a radical protest stunt that the book world
is likely to see for sometime. Livening up the normally sedate
worlds of technology law and publishing rights negotiations,
Richard Charkin took the law into his own hands. The Chief
Executive of Macmillan Publishing illustrated a point about
Google's rights grabs through the unconventional medium of stealing
their computers. He explained himself to the never-more-aptly named
OUT-LAW. His story begins at Book Expo America which took place
recently in New York.
Charkin: We were passing the Google stand it
had a lot of laptops on it and wondered whether, if we were to pick
one up, there was no sign saying ‘please do not steal our laptops’
whether this was a nice parallel in the physical world of an
intellectual property issue. So we just picked up two and did not
take them off the stand we just walked to the other side of the
stand and waited and about an hour and a half later someone noticed
and came over and we said here have your laptops back and the
reason we have done it is to show the difference between opting in
and opting out.
So what on earth was it all about? Well, the key here is
Charkin's comment about there being no sign saying “please don't
steal our laptops”. The publishing world is hot with indignation
about a Google plan to digitise the world's books and put them on
its Google library service without actually asking the authors or
publishers first. They can opt out of the service, but any who do
not specifically ask to be excluded will have their works
digitised. Charkin embarked on some ad hoc satire.
Charkin: I was with a colleague we were walking
past the Google stand and we had been discussing the issue of
opting in or opting out on copyright and Google’s position on the
Google library project whereby they are maintaining that they have
the right to digitise a book and have it available in the library
without clearing permission from the copyright owner or controller
but that the copyright owner can write to them and say please do
not digitise this book and they will not do so and indeed if they
have digitised the book and they are asked to take it down they
will do so as well. That is the view of most people an inversion of
copyright in that basically you cannot do something with someone
else’s copyright without prior clearing permission beforehand.
Charkin's stateside protest might have been impishly playful,
but he says it highlights a serious issue.
Charkin: If you were a textbook author and you
had an adoption in a university of shall we say one hundred copies
a year and lets say the royalties on those copies was one pound so
you were earning one hundred pounds a year and this was a book
which was digitised and if Google have done it without clearing
permission you the author have lost one hundred pounds and that is
the issue. It is a breach of copyright in our view from the
author’s point of view which is what I think I am representing that
is, you know, a sort of hijack of intellectual property.
That's all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you know of a
technology law story? We'd love to hear from you on radio@out-law.com.
Make sure you tune in next week; for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew
Magee for international law firm Pinsent Masons
