• Bill Thompson on Lord Stephen Carter’s interim Digital Britain report, and why peer review beats Peer dictatorship every time.
• Peter Wilby’s cover piece for this week’s New Statesman on the financialisation of British society.

Egypt is planning to pass a law that would exact royalty payments from anyone found making copies of the country’s ancient monuments or museum pieces, including the pyramids.

Although the story is clearly barmy, it’s fun to imagine a bunch of developing world delegates getting together during a comfort break at WIPO and asking themselves the question: why is copyright term roughly the same length of time as the history of the Hollywood film industry?

The reaction of the US is to rewrite the rules: “In May, the United States said it was rewriting its trade rules to remove gambling from the jurisdiction of the W.T.O.” It seems to me a little odd to have a trade organisation where members pick and choose rules, but that never stopped the UK doing so with the EU.

It is a well-known fact that, despite the oft-lauded opportunities for self-development through digital creativity offered by the online virtual world Second Life, many people still use it exclusively to explore the more adventurous side of their sexuality. Although I’m not a regular S’Lifer myself (my excuse is that my laptop does not have the appropriate graphics card) it came as no surprise to me when, dining with a Second Life enthusiast last year, I was informed of the competitive market for penises in-world.

Apparently, the creative ingenuity of the businesses supplying avatar add-ons is so great that models intended to attract admiration become obsolete within months. If nothing else, this conversation resulted in the coining of what I still consider would make the world’s best band name: Last Month’s Penis.

On 27 July, the BBC is to launch its controversial iPlayer…

Read the rest here.

Over half (53%) of the value of all royalty and license fees paid in 2002 were received in one territory: the United States. Large proportions of these fees were also received in Japan and the United Kingdom.

These fees are the payments made by someone who wants to use an idea, invention or artistic creation that legally belongs to someone else. To receive these fees a copyright or patent is needed, which may remain active for years after the initial invention…

Read the rest here.

The law may appear antiquated in the fast-changing world of the internet, but in most cases citizen journalists have the same legal protection as any other journalists.

And on the letters page Jonathan Mitchell QC suggests that the Guardian’s legal team are fostering “deeply undemocratic” ideas, after the publication of Winston Churchill’s famous “We shall fight them on the beaches” speech over the weekend:

When MPs make speeches in parliament, these are recorded in Hansard and the report is subject to parliamentary copyright (formerly crown copyright) under section 165 of the Copyright, Designs and Patents Act 1988. The Houses of Parliament might in theory restrict republication of the debates in Hansard; but for many years they have, in practice, allowed this quite freely… Even that formal permission would not be needed now, as parliamentary copyright lasts only 50 calendar years, so that the last remnants of copyright in this speech ended on December 31 1990.

Read the entire letter here.

American free speech is being squeezed by bad case law and the disproportionate power of intellectual property owners. US citizens must be vigilant, says Becky Hogge.

While the Bush administration stands accused of complicity in torture, corrupting the political process, and spying on its own citizens, the average American may find it hard to summon up the energy to get angry about copyright law. But a report published in December by New York University’s Brennan Center for Justice should make any American possessing even a passing familiarity with the works of George Orwell choke on their coffee.

Will Fair Use Survive?: Free expression in the age of copyright control represents a year-long survey of the health of “fair use”, a provision in US law that exists to ensure First Amendment rights when handling material protected by copyright and trademark law. The prognosis delivered by the report’s authors Majorie Heins and Tricia Beckles is grim. It seems that legal haziness surrounding fair use, and an increasing will among intellectual property owners to pursue infringement-related grievances through a prohibitively expensive legal system, are combining to stifle free expression.

Fair use is what lets me discuss the Brennan Center report in the first place. By quoting its title I am technically infringing the authors’ intellectual property rights (or the Brennan Center’s, depending on the terms of Heins’ and Beckles’ employment contracts). But because I am engaged in what the 1976 Copyright Act describes as “criticism, comment, news reporting, teaching…scholarship or research”, I’m not expecting to hear from NYU’s lawyers anytime soon.

Copyright terms in the United States can extend beyond a century, thanks to the 1998 Sonny Bono Copyright Term Extension Act. Consider the sentence “I disapprove of what you say, but I will defend to the death your right to say it”. Often misattributed to Voltaire, it was written by SG Tallentyre (Evelyn Beatrice Hall) in her 1906 work The Friends of Voltaire. Thus it is most likely still protected by copyright law. Can I quote it under US law? It illustrates a key view of free expression – but I am not critiquing it here. Am I, therefore, stealing it?

As an artist, critic, activist or scholar, gaining a judgment of fair use in the US relies on four considerations:

• “purpose or character of the use” – is the new use of the “stolen” work transformative, in the artistic sense? Does it advance political debate? Was it “borrowed” for the good of society, or “stolen” to profit the “thief”?
• how special was the original work? Was it an act of pained creative gestation, or an office memo (of which more later)?
• how much of the original work was stolen?
• what effect has the copyright infringement had on the market of the original work?

So far, so good. Indeed, in a recent piece on openDemocracy, Michael Handler of the Australian National University’s law faculty, offered muted praise for US fair use, in contrast to its more restrictive cousin, fair dealing, which only allows for the borrowing of copyrighted work for specific purposes.

But with flexibility comes uncertainty. And legal uncertainty will often be exploited by the party with the most legal resources – which leads to bad case law, which leads to more legal uncertainty… The history of fair use judgments since the 1976 act is a troubled one. In 2003, on completing a survey of US fair use judgments, copyright expert David Nimmer concluded that “had Congress legislated a dartboard rather than the particular four fair use factors embodied in the Copyright Act, it appears that the upshot would be the same”.

Fair use, then, has become an unreliable tool for free-speaking Americans. This means that artists and critics are being intimidated as they go about their business of enriching society and pushing intellectual and creative boundaries through critique and appropriation of previous human endeavour.

Contrary to a stereotype popular among Europeans, most Americans would happily go through their entire lives without uttering the words “I’ll see you in court!” Pro bono lawyers are hard to find and the chance of losing a fair use case conjures the prospect of penury and occasionally jail. As a result, the Brenner Center report found, many copyright infringement claims for which a valid fair use defence might exist are never fought, and criticism of commercial, political and religious practices is silenced.

The floodgates for spurious claims of copyright infringement are propped open further by the 1998 Digital Millennium Copyright Act (DMCA), which holds internet service providers (ISPs) responsible for infringing material they host on behalf of third parties. This piece of legislation – akin to motorway owners being held liable for traffic accidents, or telephone companies for prank phonecalls – means that more often than not a disinterested party gets to choose whether to flick the censorship switch.

The US legal environment surrounding fair use has thrown up some truly Orwellian situations. In 2003, a manufacturer of electronic voting machines used in the US election, Diebold Inc, sent a DMCA takedown notice to the ISP of students at Swarthmore University. Their crime? They were circulating internal memos discussing serious defects in the company’s product, memos for which Diebold claimed to own the copyright. Confident they had a fair use case, the students stood their ground. With support from the Electronic Frontier Foundation, they sued and Diebold backed down.

But Howard Hallis was not so pushy. When his ISP let him know they’d received a DMCA takedown notice from Chick Publications, one of whose creationist cartoons he had satirised on his website, he complied almost immediately, with the rueful comment, “the piece was done in fun, but you got to realise that the laws can censor you”.

Should the American public be so complacent, the frontiers of free speech may well retreat. The Brennan Center report’s recommendations call for better education of artists and critics over their rights to use others’ speech, backed by a larger pool of pro bono lawyers ready to take on the big boys for the sake of the First Amendment. As for a change in the law? Don’t hold your breath. As Lawrence Lessig candidly observed last month: “The good stuff on ‘fair use’ just won’t stop coming (if only now we could get some good judicial decisions).”

The Open Rights Group campaign for online freedom of information, individual liberty and the integrity of the public domain is a new stage in the defence of digital rights, says Becky Hogge.

Tonight, I am following in the footsteps of a Grateful Dead lyricist, Sun Microsystems’ fifth employee and the inventor of the spreadsheet. Like John Perry Barlow, John Gilmore and Mitch Kapor, who together founded the United States-based organisation the Electronic Frontier Foundation (EFF) in 1990, I am starting my own campaigning group for online rights. Well, I can’t take all the credit. Together with over 1,000 other people I have pledged that I will pay £5 (approximately $8) each month for the sake of a voice in an arena where our future online civil rights are at this very moment being put to paper.

It’s an innovative way to start a campaigning organisation. Not until a critical mass of 1,000 people had been reached (with a last-minute call from cult blog BoingBoing for the final thirty-three signatories) could the Open Rights Group (Org) come into being. Using Pledgebank.com, a site designed by British civic participation hackers MySociety, the co-founder of British netzine Need to Know Danny O’Brien (himself an EFF émigré) started the process off. He pledged that if 1,000 people would join him, he would commit to funding a modest advocacy group that would give a voice to young technologists in the press and at the drafting table to the tune of £60 a year.

This bottom-up approach is testament to the organisation and the values it represents. But the thrill of being involved has not allowed the Org project to pass by without criticism – in fact, the openness of the group has exposed it to heartfelt involvement from many sides. But the project has already met with its first success. In speaking out against content owners’ desire to be treated as equal to security services in terms of access to electronic personal data – a piece of draft law currently being fast tracked through the European Union – Org has finally added the crucial alternative voice in the modern dialogue of online rights.

Campaigning for digital rights is a very wide mandate. Not only is access to the internet increasingly, and rightly, being seen as a basic right, but the traditional concerns of civil rights are magnified in the virtual world. With more personal data swimming around in the ether than ever before, and with security services more enthusiastic than ever to get their hands on it, privacy is top of the agenda, and hopelessly skewed. Likewise freedom of speech. The recent sentencing of Chinese journalist Shi Tao on the strength of evidence provided by a third party global corporate entity should prove that the impossibility of global governance of the net also has its downsides.

Information and free sharing

But there is another side to digital rights campaigning that is unique to the information age. Not only must we protect the right to withhold our personal information and maintain our privacy, to transmit information and thus be free of censorship, we must also protect the rule of law which governs ownership of information.

Information behaves very differently to other resources. Unlike land, trees, water, or oil, it is not a finite resource – if I tell you something I don’t forget it, we both know it – and therefore cannot be governed by laws of scarcity. Instead, a long-established system exists to harness the behaviour of information to bring the best net benefit to society. Copyright and patent law exist to grant creators of information – be they inventors or artists – a temporary, incentivising, monopoly over the use of their creation before it is assigned to the public domain, where it can be forever shared.

Intellectual property law is the name of this system, and up until the arrival of the information age it has played a bit part in the legal mechanisms that keep our democracies healthy. But in the last forty years it has been transformed: first prodded and poked, then extended in scope (the patenting of the mathematical algorithms that make up a piece of software, or the individual genes that make up a human being) and length (copyright terms, initially equal to the patent term of seven years, can now last a startling ninety years). The accumulative result is that the balance intellectual property law creates between monopoly and freedom has become almost unrecognisable.

The reason this crucial body of laws has been messed around with is to a certain extent the same reason that many laws which keep our democracies intact get messed around with – lobby groups with cash in the budget to buy influence get hold of people in power who draft proposals away from the eyes of the media or concerned citizens. But the absence of an advocacy group specifically to speak out in favour of the public domain has also been a problem – a problem that Org hopes to fix.

Lobbying for the public domain won’t be all Org gets up to – indeed its first success has very little to do with it. But it will form a crucial part of online rights campaigning. Because protecting the public domain is basically protecting the internet. Not in the sense that without the public domain, there would be nothing to transmit across the internet (copyright exists on the net, no matter how much it is violated) but in the sense that the internet relies on the philosophy of the public domain in order to exist.

The internet is based around open standards – protocols that everybody knows (or at least has the right to know) and that everybody can use freely. Tim Berners-Lee often gets asked whether he regrets not capitalising on his invention, the Hyper Text Transfer Protocol, the lingua franca of the World Wide Web. He always replies that he doesn’t, for the simple reason that if he had tried to exert a monopoly over http, the web simply wouldn’t exist.

Doc Searls, widely seen as a prophet of the internet thanks to his co-authorship of The Cluetrain Manifesto and The World of Ends: what the internet is and how to stop mistaking it for something else, recently wrote: “We need to make clear that the Public Domain is the market’s underlying geology”. The internet is a hymn to openness, and I’m pleased to be helping an organisation that will be singing that hymn in Westminster, Brussels and Geneva.

On World Intellectual Property Day, Becky Hogge speaks to Cory Doctorow, who has been campaigning for reform at the World Intellectual Property Organisation for two years, about the strains put on the democratic process by the arrival of dissenting voices.

Today, 26 April 2005, is World Intellectual Property Day, a celebration of the power of the copyright, patent and trademark disciplines to foster creativity and innovation around the world. It is a day sponsored by the United Nations’ World Intellectual Property Organisation (Wipo), a UN organisation unlike any other. In the flock of the organisation with aspirations towards international democracy, yet funded by the big business of worldwide trademark and patent registration, Wipo’s plush Geneva headquarters have traditionally played host to lobbyists of corporate power, not champions of the developing world.

Why this should be so boils down to a simple equation – that copyright, patent and trademark law incentivise creators and therefore stimulate development. Now, technologists and their allies with a different vision of how Wipo should operate are challenging the logic of that equation. And in the face of such dissent, the democratic fabric of the institution is being stretched taut.

Cory Doctorow is one lobbyist who has been at the front line in Geneva for some time. Back in 1999, his fledgling technology company’s investors “freaked out” about a copyright-driven lawsuit filed against a company using a similar technology to his – Napster. As he faced growing pressure from his investors, Doctorow sought help from the Electronic Frontier Foundation (EFF), an advocacy organisation and impact litigation house that campaigns for the rights of technologists. He later left his company to work for EFF full time. His speciality is legislation on copyright, legislation that in his experience is often exploited in the drafting stages by lobbyists from incumbents on the market seeking to create a “permissions culture” for technologists and other innovators – in his words, “profoundly anti-competitive stuff”.

A different world

Two years ago, the EFF got a call from James Love, head of the Consumer Project on Technology and celebrated hero of access to medicine initiatives that saw big pharmaceutical players slope away from lawsuits against the South African government over the purchase of generic versions of patented retrovirals in the fight against HIV/Aids. Love had spent years at Wipo, mainly agitating for patent reform, and had noticed a vacuum of dissent against draft global copyright treaties. Delegates without a strong handle on the potential of new technologies, were, in the name of copyright, putting checks and balances on these technologies that would make valuable innovations illegal. The only lobbyists present were those representing the incumbent rightsholder and broadcasting groups. Could the EFF help?

“It’s a very different world working at Wipo”, says Doctorow,

“so when [Love] approached us the initial reaction from the people on staff was ‘how can we possibly make a difference here? We’re outgunned, we don’t know what’s going on, it’s diplomatic, we don’t know who to sue – all the stuff we’re good at we don’t know how to do here.’ But there were elements of history that resonated”

. At Wipo, just as in the various midnight meetings on broadcasters’ rights in the digital age the EFF had gradually been gaining access to in the United States, the democratic process was in danger of breaking down for lack of people speaking up for the other side: “The most egregious lies were being told about how the world worked and nobody was sticking their hand up and saying that’s not true.”Cory’s first job at Geneva was to step into negotiations over the Broadcast Treaty, a theatre of discourse aimed at updating a 1961 treaty in the light of the impending switch from analogue to digital. What he found was an audience of national delegates already held captive through five years of negotiation by lobbyists from rightsholder groups and incumbent broadcasters. New technologies were represented solely by webcasting businesses keen to sew up the market against future competition.

The arrival of dissenting voices at Wipo, where Doctorow has forged alliances with various intellectual property (IP) reform NGOs, has tested the democratic process. Their lobbying on such diverse tickets as international development, the safeguard of the public domain and the rights of archivists, says Doctorow, is viewed as “arriviste” – they are a “rabble” capable of swerving carefully planned negotiations off course when there was policy to make.

Delegates whose tentative grasp of the meanings of new technologies often came from close collaboration with incumbent lobbyists such as the National Association of Broadcasters suddenly found they were being asked to pick sides.

One of the more controversial activities of the IP-reform lobbyists since their arrival at Wipo, Doctorow remarks, has been the spontaneous publication on the web of impressionistic notes taken from the various negotiations through at-table blogging.

“Normally the way that Wipo transcripts are produced is there’s a six-month delay during which the secretariat’s notes are sanitised by circulation to all the members – ‘here’s what we’re gonna say you said, would you care to re-write it?’. And you end up with this kind of linen-draped version of the negotiation months after it happened. Whereas we go in and take collective notes which we publish twice a day. We are told that there are delegates who get phone calls in the afternoon about what we’ve posted about what they’ve said in the morning.”

Doctorow is puzzled at the reception of this practice: “They characterise that as an abuse of their hospitality because we’re telling tales. But it’s the UN, right? The idea that the UN proceeds in secret is the stuff of paranoid fantasy.”

Indeed. Last November, during the twelfth session of the standing committee of copyright and related rights, Doctorow found himself clinging on to the reins of reality after literature IP-reform NGOs had produced for the session was continually moved from the handout table to the wastepaper basket in the first-floor men’s toilets.

“This wasn’t flyers with skulls and crossbones on them saying you guys can all burn. This was thoughtful, well-informed, substantive comment on the process that we as observers have been invited to present. We ended up posting Rufus (Pollock, from the Campaign for Digital Rights). Rufus stood by the table for two days.”

Doctorow claims that further attempts to exclude the reformist argument from treaty discussions were made when Wipo “switched policy” on attendance leading up to talks on the Development Agenda earlier in April. The Development Agenda is the first piece of legislation to pass through Wipo that questions the direct link between strong intellectual-property protection and development, and had been directly facilitated by Doctorow and his allies. Whereas previously both ad hoc and permanent observers had been welcome at such talks, Wipo announced that only permanent observers could attend this meeting; thus excluding the majority of reformist NGOs, although not the EFF.

Whose democracy?

Doctorow and his partner NGOs’ message is perhaps a little too much for the delicate ears of Wipo, an organisation funded by the trademark and patent-registering business that until recently would never have given the appropriateness of that arrangement a second thought. The three aims of this year’s World Intellectual Property Day suggest Wipo’s continued belief that development comes from protection of intellectual property and that if you want more development, you need more protection. That core idea has now been challenged.

After a two-day conference in September 2004 a coalition of NGOs produced the Geneva Declaration on the Future of WIPO. Signed by high profile free software and copyleft advocates, access-to-medicine campaigners, library associations, academics, Nobel prize-winning scientists and development organisations such as Oxfam, the declaration demands that Wipo re-examine its ideas about the logical link between copyright, patent and trademark protection and the ultimate goal of its UN mandate: development.

Noting the emergence of other intellectual-property disciplines within which development has been shown to flourish, and condemning the anti-competitive advantage Wipo had bestowed on its most vocal lobbyists in the past, the Geneva Declaration has already provided a springboard to Argentina and Brazil from which to launch the Development Agenda.

These and other rebel delegates from the global south, who have identified an opportunity to swing the global intellectual-property agenda – so intricately linked to world trade – in their favour, have a tough battle ahead. Doctorow reveals the tensions at one meeting:

“There was a proposal to cancel the June meeting in favour of a series of regional meetings, which is widely understood to be a divide-and-conquer tactic. Brazil, Chile, Argentina, India…spoke out passionately against it and said ‘we block it, this is a consensus body, and without our consensus you can’t go forward with this’. And the chair put it to a vote, and they had a vote, and he said ‘well that’s democracy’. Their response was ‘what do you mean that’s democracy? We have a deliberative process, and the deliberative process is consensus oriented, there’s no consensus in this room’. The chair’s reply was that the consensus is on substance not on points of procedure.”

Cory Doctorow is confident that his and other NGOs’ activities will end up having a lasting, positive effect on Wipo’s engagement with the developing world. As with many geeks, there is idealism just underneath the earnestness. At the end of our interview he quotes Gandhi: “‘First they ignore you, then they laugh at you, then they fight you, then you win”.