When it comes to ACTA and TPP, China is the elephant in the room — or maybe that should be the dragon in the room. For without China’s participation, these treaties designed to reduce counterfeiting will have little effect. And despite rather desperate optimism on the part of some that China will rush to sign up, its comments so far suggest otherwise.

A crucial factor here is China’s own copyright framework, since this will inevitably color its perception of the terms of any treaty that it might sign. That makes the outcome of a planned third revision of its copyright laws highly pertinent to the fate of treaties like ACTA and TPP. A paper reviewing the current proposals, written by Hong Xue, Director of the Institute for Internet Policy & Law at Beijing Normal University, provides some valuable insights into the likely evolution of China’s copyright law. Unfortunately, the signs are not good:

the Draft fails to review several misconceptions, such as “the more the better” (more copyright protection and enforcement, the better economic growth and social development), “one size fits all” and “modeling on US law” (on draconic enforcement rather than general and robust limitations and exceptions). It is unfortunately that China, the largest country by both population and Internet users, despite its fast-growing economy, seems keeping on the old track and missing the opportunities to revamp its Copyright Law in the new century.

In the area of limitations and exceptions, the latest draft makes things worse than today’s rules:

According to the [current] Copyright Law, anyone may use a work for personal study, research and appreciation. The Draft, however, restrict the scope of private use to “making one copy of a work for personal study and research.” It is annoying to exclude from the private use personal “appreciation”, which is inherently hard to distinct from personal study and research, particularly on the Internet. It is even more worrisome to restrict private use to reproduction of a work. Under the Copyright Law, use of a work may include reproduction, translation, adaptation (such as remix or sampling), as far as the use is private. The Draft, however, only allows for reproduction and restricts to one copy.

That’s crazy at a time when more and more people are using digital content in new ways that include precisely these things like remixing, sampling and adapting.

There’s also bad news on the DRM front, which seems closely modeled on the US DMCA:

The biggest defect in this regard is that the Draft fails to address whether technological measures may be circumvented for the specified circumstances of limitations and exceptions to rights. For example, it is unclear under the Draft whether a user may circumvent a copy-protection measure on a work so as to make a single copy of work for personal study or research.

That’s clearly a crucial issue. If circumvention is not allowed, then once again DRM can effectively take away what few rights users are granted in this area.

Finally, China also appears to be following the US in bringing in harsher copyright enforcement and disproportionate damages:

Copyright enforcement is tremendously enhanced under the Draft. Regarding civil remedies, damages could be several times of licensing fees if right holder’s actual loss and infringer’s illegal gains cannot be determined.

All-in-all, it looks like China has learned nothing from the West’s mistakes. Instead, it seems to have taken the misguided view that if the West did it, China must do the same to “catch up”. As the paper quoted above emphasizes, this is only a draft, and can still be modified. But based on what it already contains and the fact that organizing resistance against new laws in China is not the easiest of tasks, it looks increasingly likely that China too will be entering a period of copyright maximalism, with all the negative consequences for the Chinese public — and possibly the world — that this implies.

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Techdirt. Glyn Moody

As the mobile phone moves closer to the center of daily life in many parts of the world, combining phone, computer, camera, diary, music player, and much else all in one, it becomes a concentrated store of the digital DNA that defines us — who we talk to, what we search for, who we meet, what we listen to. However convenient that may be for us as users, it’s also extremely dangerous if it falls into the wrong hands.

Unfortunately, in the UK, it looks like London’s police force must now join the list of “wrong hands”:

The Metropolitan Police has implemented a system to extract mobile phone data from suspects held in custody.

The data includes call history, texts and contacts, and the BBC has learned that it will be retained regardless of whether any charges are brought.

If a crime has been committed, there is an argument that extracting the data in this way in order to secure a conviction might be justified if carried out with appropriate authorization. But clearly, keeping all that highly personal data as a matter of course, even if no charges are brought, is a breach of privacy and human rights.

It’s also pretty pointless. After all, anyone who uses their phone for nefarious purposes will make sure that they can render the contents irrevocably inaccessible with just a couple of clicks – apps that let you do this are likely to proliferate in the wake of this latest development. So most of the data gathered by the police will be that of law-abiding citizens, who don’t feel the need to take this precaution.

However, there is an interesting parallel here with the similarly unjustified retention of a suspect’s DNA, even if no charges were brought, that took place routinely in the UK from 2004. The European Court of Human Rights deemed this a breach of Article 8 of the European Convention on Human Rights, which provides a “Right to respect for private and family life”, and the UK government was forced to change its approach. The same logic would seem to apply in the case of the digital DNA held on our mobile phones. Let’s hope the UK police consider this before rolling out their disproportionate plans.

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Techdirt. Glyn Moody

Earlier this year, Poland played a crucial role in igniting street protests that pretty much stopped ACTA in its tracks. That’s not the first time it has had a major impact on European tech policy. Half a decade earlier, it derailed a proposed EU software patent directive, which had sought to make software patentable in Europe — something that Article 52 of the European Patent Convention had appeared to rule out. That led to a later vote in the European Parliament where software patents were decisively rejected.

Unfortunately, that’s not the end of the story as far as software patents in Europe are concerned. Despite its name, the European Patent Office is not the patent office for the European Union: it is part of the European Patent Organisation, which is independent of the EU, and is therefore not bound by the EU’s policies and decisions. This has enabled it to let in software patents by the back door, using the artificial concept of a “computer-implemented invention (CII)“:

A CII is usually defined as an invention that works by using a computer, a computer network or other programmable apparatus. To qualify, the invention also needs to have one or more features which are realised wholly or partly by means of a computer program.

To be patentable, CIIs must fulfil the same basic patentability requirements as inventions in all other fields. These are set out in the European Patent Convention (EPC).

Accordingly, CIIs can be patented if:

They have technical character and solve a technical problem.
They are new.
They involve an inventive technical contribution to the prior art.

Some national patent offices in the EU have tried to hold back the wave of software patents being let through as CIIs by applying stringent conditions for granting them. That has led to a situation where the Polish Patent Office ruled against an application for a software patent that the EPO had approved:

Pursuant to its longstanding practice in the area of so-called software patents, the Polish Patent Office held that the invention was not of a technical character and therefore was not patentable, despite the fact that the European Patent Office had granted a European patent for the same invention. In other words, the Polish Patent Office refused to issue a patent to an applicant already approved by the EPO.

This incompatibility between the rulings of the Polish Patent Office and the EPO led a higher Polish court, the Polish Supreme Administrative Court, to intervene. It has now reviewed the case and issued a revocation of the earlier decision by the Polish Patent Office, implicitly giving precedence to the EPO on the matter.

The reasoning of the Polish Supreme Administrative Court seems to be essentially that technology has moved on, and therefore the Polish patent system should take account of that by allowing software patents now, just as the EPO does:

The [upper] court also noted that great technological advances across many industries have been made in recent years, which must have an effect on the practice of the Polish Patent Office. Thus, the Polish Patent Office, while conforming to the provisions of Polish patent law, should change its approach on the subject matter of the technology.

But that’s an absurd argument. Software has been around for half a century: the basic ideas underlying it haven’t changed, nor have the sound reasons for excluding it from patentability been superseded — it’s just become much more widespread. If anything, that’s a further argument against allowing software patents.

To grant software patents now would be like granting patents on written phrases simply because writing has “moved on”, and literacy has become more widespread. Clearly that would stifle creativity, since writers would then have to worry about “infringing” on patented elements of their craft, and lawsuits would break out between authors claiming their ideas were “stolen”, when in fact they were simply part of their cultural heritage.

Similarly, in the digital world, allowing software patents would mean that programmers would run the risk of “infringing” just for using basic programming building blocks in their creations. And that, of course, is precisely what is starting to happen on a massive scale in jurisdictions that do allow software patents: litigation is making innovation increasingly hard, especially for start-ups without the resources to fight long legal battles, or patent portfolios to use for striking licensing deals.

Given Poland’s glorious recent past in defending Europe from dangerous ideas like ACTA and software patents, it’s sad to see the country’s courts trying to make its own citizens subject to the EPO and its maximalist views that more or less anything is patentable. Perhaps it’s time to take to the streets again….

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Techdirt. Glyn Moody

Even though just about every objective statistic suggests otherwise, the copyright industries still take turns bemoaning the terrible toll that piracy is supposedly taking on their markets. So it’s good to come across some official figures that suggest the contrary, particularly because in this case they come from the European Audiovisual Observatory—not a market research company, but a public service body. Here are the latest numbers for the European film industry:

2011 was a year of stabilisation at the European box office as the marked upward trend of GBO [gross box office] of the past two years slowed down significantly, resulting nevertheless in an overall year-on-year increase. Based on provisional data the European Audiovisual Observatory estimates that EU gross box office returns increased marginally by 0.7% from EUR 6.37 billion [$8.14 billion] to EUR 6.4 billion [$8.18 billion], still the highest level on record. Cinema attendance remained stable with an estimated 962 million tickets sold.

Note that this is no mere one-off — the report speaks of a “marked upward trend” of the previous two years that has slowed down significantly, but is still there, leading to what it terms “the highest level on record”. That’s about box office sales, but maybe the European film industry itself is suffering under the onslaught of popular US movies? It seems not:

2011 saw European films claiming back market share which they had lost to US 3D blockbusters in 2009 and 2010. Based on provisional figures, estimated market share for European films in the EU climbed from 25.2% to 28.5% in 2011, back to the ‘pre-3D’ levels of 2007 and 2008. Market share for US films on the other hand fell from 68.5% to an estimated 61.4%. This would be lowest level since 2001.

The best result for a decade, then. Now, that’s all very well, but might still be the result of a few anomalous European blockbusters that have distorted the figures. According to the European Audiovisual Observatory, that’s not the case:

EU production levels continued to grow to 1,285 feature films in 2011, 59 films more than in 2010 and a new record high.

In other words, in 2011, Europe note only saw record box office receipts at cinemas, but also record indigenous film production. It’s a little hard to see how anyone could try to spin that as another “piracy is destroying the European film industry, we must bring in tougher copyright infringement laws” story, but I’m sure the usual suspects will try their darnedest.

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Techdirt. Glyn Moody

Last week Techdirt wrote about the possible introduction of an “opt-in” license to view porn online in the UK. As we noted then, there is nothing to stop parents from installing their own filters to block access to certain kinds of Web sites now. But it seems that soon, they won’t even have to do that:

There’s a report in today’s Sunday Times that ISP TalkTalk is planning to offer an “adult” filter to all its customers. The “HomeSafe” system will, according to the report, block websites that are considered unsuitable for the under-18s. That isn’t just porn, but also includes self-harm, drugs and violence. Other major consumer ISPs, such as BT, are working on their own systems but don’t have them ready yet.

This is precisely how the market is supposed to work: if there is demand for something that is not currently on offer, then businesses will develop new products to meet that demand.

What’s interesting about today’s report, though, is that a spokesman from TalkTalk is quoted as saying that offering filters to new customers has increased customer retention. It seems that their customers do want them, and are more likely to stay with TalkTalk if they’ve got them.

That means that rather than incurring costs for imposing censorship on everyone unless they opt out, as the UK government may require, ISPs could instead make money through reduced churn by giving customers something they want.

As the author of the article quoted above, Mark Goodge, points out:

It also gives the lie to two other common claims made by pro-compulsion campaigners: that ISPs are irresponsible and parents don’t care, and the only solution to both of those is legislation. In reality, a lot of parents do care about what their children are accessing on the Internet, and will choose to use a system which does screen out the worst of it if that option is available. And ISPs are responsive to consumer demand, so they’re choosing to offer that to their customers.

It’s particularly ironic that it should be the UK’s Conservative Party that is contemplating this move. It generally prides itself on promoting business and minimizing government interference in people’s lives; here, it is doing the exact opposite.

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Techdirt. Glyn Moody

Words matter — just think of the number of times flame wars have broken out in Techdirt’s comments over whether you can “steal” music or films. But one phrase that nobody really questions is “orphan work”. And yet, as Lydia Pallas Loren
points out in a brilliant paper, this is a loaded term with a very particular agenda:

In the metaphor of the romantic author, the works he creates are his children, born of his labor and genius. He is given rights to control, and thus protect, his children. Calling works for which the copyright owner cannot be located “orphans” pulls on that metaphor and triggers the concerns any humane person would have toward abandoned children. These orphans have suffered the tragic loss of their parent. These are works whose parents have been lost or killed. We reflexively begin to believe that orphan works need the kind of protection that society provides to abandoned children.

Although that orphan metaphor sounds innocent enough, Loren believes that it is one of the reasons why it has proved so difficult to pass orphan works legislation:

The perceived evils of the world are multifold and include Dickensian images: bleak orphanages, barren workhouses, and street gangs assembled by Artful Dodger of Oliver Twist, where the unfortunate children are put to work for commercial entities exploiting whatever commercial life is present in the child. These orphan exploiters fail to invest in or care for the children properly, underfeed them, and yet usurp the work-value of the orphan child. This implied narrative of the potential abuse of orphans has impeded the passage of orphan works legislation.

It’s a brilliant explanation, and leads Loren to suggest an alternative, provocative metaphor: not “orphan works”, but “hostage works”:

When viewed as a “hostage work problem” it becomes clear that these works do not need foster parents or protection against inappropriate exploitation — the end result of an orphan metaphor. Nor do these works need new owners — the end result of a metaphor of abandoned or neglected property. What these works need are “special forces” that can free them from the constraints placed on them by the combination of the regulatory effects of copyright and the lack of a locatable owner who can grant permission to avoid the consequences of the regulation.

Pursuing that metaphor, she suggests that “special forces” who liberate those hostages should be granted immunity from legal action by any owners of those works that eventually turn up, provided the former meet two criteria:

First, the entity must not be negligent in designating a work as a hostage work or in its approach to correcting status information and removing digital access to a work inaccurately (albeit non-negligently) identified as a hostage. Why negligence is the right standard and what might constitute negligence is explored more fully below. Second, in order to gain special forces immunity from monetary liability the entity should be required to provide an open access copy of the work with embedded hostage freeing information related to that work.

That’s clever, because it ensures that the “special forces” who liberate the hostage works can’t simply imprison them again, but must set them free in the form of open access copies.

It’s a wonderful solution employing a thought-provoking metaphor, and I urge you to read the full paper. It provides a full exploration of the legal details of how it might work — if only people could look beyond the misleading perspective of “orphan works”, and see them as “hostage works” instead.

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Techdirt. Glyn Moody

News that Harvard University is the latest to join the growing revolt against the exorbitant pricing of academic journals caused something of a stir recently — although it has been pointed out that its case would be stronger if it followed its own advice and made the Harvard Business Review open access, or at least cheaper.

But here’s an area where Harvard, together with MIT, is being more pro-active in helping to make knowledge more widely available online:

EdX is a joint partnership between The Massachusetts Institute of Technology (MIT) and Harvard University to offer online learning to millions of people around the world. EdX will offer Harvard and MIT classes online for free. Through this partnership, the institutions aim to extend their collective reach to build a global community of online learners and to improve education for everyone.

EdX will build on both universities’ experience in offering online instructional content. The technological platform recently established by MITx, which will serve as the foundation for the new learning system, was designed to offer online versions of MIT courses featuring video lesson segments, embedded quizzes, immediate feedback, student-ranked questions and answers, online laboratories and student-paced learning. Certificates of mastery will be available for those who are motivated and able to demonstrate their knowledge of the course material.

MIT’s MITx platform already offers some MIT courses online, and is open source:

EdX will release its learning platform as open-source software so it can be used by other universities and organizations that wish to host the platform themselves. Because the learning technology will be available as open-source software, other universities and individuals will be able to help edX improve and add features to the technology.

The hope is that other universities will join with Harvard and MIT to make EdX one of the primary platforms for online learning. Interestingly, it will also be used to research how people learn using digital technology — and how it can be deployed more effectively:

MIT and Harvard will use the jointly operated edX platform to research how students learn and how technologies can facilitate effective teaching both on-campus and online. The edX platform will enable the study of which teaching methods and tools are most successful. The findings of this research will be used to inform how faculty use technology in their teaching, which will enhance the experience for students on campus and for the millions expected to take advantage of these new online offerings.

This looks like an important move for online learning, not least because of the scale of the financial support:

The initiative will be overseen by a not-for-profit organization based in Cambridge, Mass., to be owned and governed equally by the two universities. MIT and Harvard have committed to a combined $60 million ($30 million each) in institutional support, grants and philanthropy to launch the collaboration.

Those funds and the projects they will catalyze could boost efforts to make university courses more widely available, complementing the growing success of open access in opening up published materials.

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Techdirt. Glyn Moody

Over the last few months, Techdirt has been reporting on the amazing rise of the German Pirate Party, with win after win after win. Politicians in the other parties have looked on aghast, powerless to halt the rise of something they clearly can’t fathom. Inevitably, the fightback has finally begun, but packaged as an artists’ revolt, not simply that of the copyright industries worried about their profit margins.

Perhaps the most dramatic manifestation of that was a major section in the Handlesblatt newspaper (German original) a few weeks ago. It was entitled “A hundred creatives provoke the Pirates”, and included 160 statements on the subject of “My head belongs to me.” That paints this as huge numbers of artists having their ideas taken away by the Pirates, but the reality was a little different.

Of those 160 statements, only 30 came from artists; the rest were from politicians, media companies, lawyers, academics and business groups (German original.) Unsurprisingly, most of those 130 statements were attempts to defend their own positions as gatekeepers of culture – often well-paid ones.

The artists’ comments were little better. Here’s a small selection:

The Pirate Party would never think to demand in the name of freedom that German bakers should in the future give away their bread, and have their baking sponsored by the state. (Gisa Klönne.)

Free content is intellectual theft. (Thomas Weymar)

The Pirate Credo, that ideas can’t belong to only one person, is good news for people who don’t have any ideas of their own. (Frauke Scheunemann.)

Without protection for intellectual property there would be intellectual chaos. (Pater Anselm Grün.)

It’s also true in the age of YouTube: without copyright, there can be no quality films or TV. (Franka Potente.)

Germany can’t afford to turn the majority of its creators into hobbyists. (Carolin Otto.)

The comments mainly consist of willful, or perhaps real, incomprehension of the digital world, combined with a sense of entitlement demonstrated by many artists. But there’s also something new here, which the German magazine Der Spiegel analyzed as follows:

Artists can always be counted on when it comes to standing up for democracy and justice. Ever since [the Nobel Prize-winning writer] Günter Grass drummed up support for [former German Chancellor] Willy Brandt and the [left-wing party] SPD 40 years ago, Germany’s intellectuals have congregated on the progressive side. When in doubt, they lean to the left, and participating in the cutting edge is considered a central duty.

But their love affair with the Pirate Party is cooling off before it even had much of a chance to begin. In recent days, artists have spoken up one after another, expressing their unease at the movement’s calls to deregulate all digital content.

The rise of the Pirate Party has suddenly revealed many of these “progressive”, “cutting-edge” intellectuals to be just as keen on preserving their privileged position, and just as frightened of change, as they’ve mockingly accused the bourgeoisie and the conservatives of being in the past. Indeed, many of the artists’ comments in the Handelsblatt section are little more than unoriginal variations on the old “get off my lawn” theme.

That will come as a shocking realization for many artists who until now have believed themselves to be in the vanguard of society, and the champions of every kind of progress. The rise of the Pirate Party has called that into question — hence the vitriol that it has encountered recently.

And it’s not over yet. The Netzpolitik blog notes that another 100 artists have just signed a declaration in the leading newspaper Die Zeit, under the rubric, “A call against the theft of intellectual property”. Just to hammer home the point, the term “theft” is used twice more in the text (German original), which points the finger at “global Internet companies” whose business models are based on the “appropriation” of artists’ work, and demands that copyright protection be strengthened, rather than moderated.

Although it’s disturbing to see this kind of poorly-informed mud-slinging, it does demonstrate one thing: that the Pirate Party is not just shaking the German political system to its foundations, but also challenging a whole range of cozy assumptions about copyright and creativity, and their role in modern society. Expect even more — and dirtier — attacks in the future.

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Techdirt. Glyn Moody

When discussing ACTA, there’s a natural tendency to concentrate on the bigger players — the US or the EU — but it’s important to remember that there are many other countries involved. One of those is Switzerland, which has just joined the doubters’ club by holding off from signing ACTA. Here’s why (French original):

Since the conclusion of the negotiations, the criticisms regarding ACTA have multiplied in various countries. The [Swiss] Federal Council takes these fears seriously since they concern fundamental liberties and important points of law.

As a result, Switzerland will not be signing ACTA for the moment. Instead:

The Council will re-examine the question when new elements on which it can base its decision are available. These elements could include the deliberations of the five EU countries that have delayed signing ACTA, the results of the referral to the European Court of Justice by the European Commission, or the continuation of the EU’s ratification procedure.

Clearly, the Swiss Federation is taking a wait-and-see attitude, and doesn’t want to rush into ACTA when others are taking their time. In itself, this latest move by Switzerland doesn’t change much, but it does add to the growing doubts about whether ACTA will ever come into force.

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Techdirt. Glyn Moody

The damage that software patents cause to innovation in the computer world is a constant theme here on Techdirt. But as a fascinating new paper by James Boyle explains, the threat to open source, particularly from patent injunctions, is even greater because of the special characteristics of that software development methodology:

If open source innovation has great social benefits in fostering competition and innovation, it also has particular vulnerabilities. First, precisely because open source development takes place in a network and allows both small and large players to participate by building on a common technology, it is particularly susceptible to attack and disruption. A proprietary monopolist fully internalizes both the costs and benefits of policing its technology and its intellectual property. Members of an open innovation network, however, do not. Individual members can be “picked off,” forced to abandon promising lines of technological development, or to pay ruinous “stacked” royalties because the costs of litigation are too burdensome for any one member of the network to bear. It is in this context that the threat of injunctions is particularly worrisome. In fast-moving technology markets, the dead stop forced by an injunction can be enough to doom a product. An entire network of innovation could be shut down by an injunction obtained against a single small participant who lacks the resources necessary to challenge the patent or defend against the injunction.

Second, most of these markets are characterized by strongly cumulative innovation. A finished product may “read on” literally thousands of potential patents.

Boyle explores these great points at length in his paper, which is well-worth reading. He also offers some suggestions for ways in which the threat of patent injunctions against open source can be reduced thanks to a ruling by the Supreme Court, eBay, Inc. v. MercExchange, L.L.C, and the four-part test it introduced:

the Court held that permanent injunctions in patent law are governed by the same equitable four-part test as injunctions in other areas of law.

A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

Boyle writes:

this Article argues the Supreme Court’s test in eBay, properly understood, offers some constructive ways to respond to both the benefits of open source innovation and the threats posed to it by injunctions. In particular, the third and fourth factors — the “balance of hardships” component and the “public interest” component — are ideally suited to allow recognition of the unique vulnerabilities and the unique competitive and innovative value of open source production.

As open source becomes more widely deployed, so the potential damage that software patents can cause to it grows. Boyle’s paper is a timely reminder that judges need to take into account the special nature of open source when considering whether to grant patent injunctions if society as a whole is to benefit, and not just the patent holders.

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Techdirt. Glyn Moody