UK Appeals Court Says UK Terrorism Act's Detention Clause Violates Press Freedoms

from the good-to-see dept

As you may recall, back in 2013, soon after the Snowden revelations, the UK detained David Miranda at Heathrow Airport and took a bunch of his electronics, as he was flying through (from Germany on his way back home to Brazil). Miranda is Glenn Greenwald's partner, and the claim by the UK was that in Berlin he had picked up copies of Snowden documents. The UK claimed that the detention was okay under Schedule 7 of the Terrorism Act, which allows for detaining terrorists, not journalists. But the UK said that it was okay, because it classified publishing Snowden documents as an act of terrorism.

Miranda sued in the UK, arguing that his rights were violated. Almost two years ago, a court ruled that the detention was lawful. Miranda appealed, and in an important ruling this morning, the appeals court said that, while Miranda's detention may have been lawful, Schedule 7 is incompatible with human rights, with regards to protecting journalists, and could be subject to abuse (even if it says that Miranda's detention wasn't necessarily abusive). The court more or less ruled that the authorities acted within reason, given the existing law, but a specific part of the law, regarding how it handles journalists, was a problem with regards to the guarantees for a free press.

Reading through the full 36-page ruling is worthwhile. The ruling is a victory for those concerned about abuses against journalists under the Terrorism Act -- but only a fairly narrow one. For example, the court does note that publication can "amount to an act of terrorism" if the publication "endangers a person's life" and the person publishing "intends it to have that effect." I can understand why someone might make that argument, but it still seems troubling to argue that any form of expression alone is an "act of terrorism."

Where the court disagrees with the government's claims, is in noting that Schedule 7 conflicts with Article 10 of the European Convention on Human Rights, which guarantees freedom of expression (not nearly as broadly as the US's First Amendment, but at least somewhat), because it could be read to force journalists to give up sources, potentially harming a free and open press:

The central concern is that disclosure of journalistic material (whether or not it involves the identification of a journalist’s source) undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect article 10 rights. If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. That is why the confidentiality of such information is so important. It is, therefore, of little or no relevance that the Schedule 7 powers may only be exercised in a confined geographical area or that a person may not be detained for longer than nine hours. I accept that the fact that the powers must be exercised rationally, proportionately and in good faith provides a degree of protection. But the only safeguard against the powers not being so exercised is the possibility of judicial review proceedings. In my view, the possibility of such proceedings provides little protection against the damage that is done if journalistic material is disclosed and used in circumstances where this should not happen. An important rationale for the principle of legal certainty that underpins the concept of “prescribed by law” is that there should be adequate safeguards against arbitrary decision-making. Unlike the position in relation to article 5 and 8, the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard.

Given that, the court rules that Schedule 7 is currently "incompatible" with article 10, and thus the UK Parliament needs to change the law to fix that problem. The court does point out that there may be some easy fixes:

The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material.

So it appears that the UK could fix this deficiency pretty easily -- but in a way that would better protect journalists. I recognize that there are a number of statements and press releases that are excited about this ruling, but it does appear to be a bit of an overstatement. Yes, finding problems with Schedule 7, especially as it relates to journalists, is a big deal. But the concerns seem to be pretty narrowly focused, and open to a rather quick fix by the UK Parliament. A stronger ruling would have been better, but at least the court recognized some problems with the current setup of the law with respect to press freedoms.

As for what happens next? The UK could challenge the ruling at a higher level. Or it could change the law, as suggested by the court. Or it could ignore the ruling, which would lead to a European challenge. So this isn't necessarily over yet....

Filed Under: article 10, david miranda, detention, free press, human rights, journalism, schedule 7, terrorism act, uk

Former NSA Whistleblower Bill Binney Warns UK Lawmakers Mass Surveillance Will 'Cost Lives In Britain'

from the analysis-paralysis dept

Shortly after the first Snowden documents were leaked, Techdirt wrote about former NSA whistleblower Bill Binney providing some context and history to the newly-revealed information. The central point he made was that trying to collect "haystacks" of data -- mass surveillance -- doesn't work, because intelligence agencies have insufficient resources to search through vast digital stores for the "needles" hidden there. It's a theme Techdirt has returned to a number of times, as has Binney. This week, he was trying to convince a committee of MPs and peers who are scrutinizing the UK's Snooper's Charter Bill that too much data leads to "analysis paralysis," and that targeted surveillance was the way to go. The Guardian reported:

William Binney, a former technical director of the US National Security Agency (NSA), told parliamentarians that the plans for bulk collection of communications data tracking everyone’s internet and phone use are "99% useless" because they would swamp intelligence analysts with too much data.

He said:

This approach costs lives, and has cost lives in Britain because it inundates analysts with too much data. It is 99% useless. Who wants to know everyone who has ever [been] at Google or the BBC? We have known for decades that that swamps analysts.

He claimed that the attacks carried out on September 11 could have been thwarted if the NSA had adopted the more targeted approach he and his colleagues were advocating:

Sixteen months before the attacks on America, our organisation (Sigint Automation Research Center -- Sarc) was running a new method of finding terrorist networks that worked on focusing on 'smart collection'. Their plan was rejected in favour of a much more expensive plan to collect all communications from everyone.

The US large-scale surveillance plan failed. It had to be abandoned in 2005. Checks afterwards showed that communications from the terrorists had been collected, but not looked at in time.

Binney pointed out that in addition to improving the operational efficiency of intelligence agencies, a targeted approach brought with it other important advantages:

It reduces the privacy burden affecting the large number of innocent and suspicion-free persons whose communications are accessible to our systems.

And as a bonus:

Legally protected groups such as MPs, lawyers and journalists could have their communications screened out and excluded from bulk collection and analysis unless a designated and targeted authorisation is in place.

Alongside the facts about the failure of mass surveillance laid before them by Binney and other expert witnesses giving evidence to the committee, let's hope the MPs and peers also took on board that point about the personal advantages of targeted surveillance for them as a group.

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Filed Under: bill binney, haystacks, investigatory powers bill, ipbill, mass surveillance, needles, surveillance, uk

UK Legislators Want To Toss Tech Company Officials In Jail If They Inform Users About Government Surveillance Efforts

from the this-won't-make-it-far dept

Default mode at tech companies these days is to inform users of government surveillance. Unless explicitly forbidden to do so, multiple companies have stated they will inform users of requests for data or suspected state-sponsored hacking attempts.

The mechanisms inherent in US law usually prevent notification. Requests made by foreign governments, however, operate in a much grayer area. UK legislators are trying to close perceived loopholes with new legislation that would make it illegal to notify users of UK agencies' requests for data. (via Boing Boing)

Bosses at Twitter and other communications companies face up to two years in prison if they tip off customers that spies or the police are monitoring them under a proposed new law.

Ministers want to make it a criminal offence to notify the subject of a surveillance operation that requests of their data have been made, unless expressly allowed.

The move follows concerns some communications and social media firms will alert users if MI5, MI6, GCHQ or the police have asked for their records.

Even if this dubious proposal becomes law, it's unclear exactly how the UK plans to enforce this. Does it send cops to arrest the top exec at the offending company? Or would it go after a lower-level representative -- one that hopefully resides in UK to better avoid the diplomatic awkwardness of extradition proceedings? In all likelihood, if this proposal survives, the jail term will be replaced with a suitably large fine.

This stipulation has been added to the draft version of the Investigatory Powers Bill -- another attempt to broaden the UK's surveillance powers while codifying the quasi-legal spy efforts GCHQ and others already engage in.

This addition would close the "loophole" tech companies are using by shifting the legal burden. Tech companies say they'll notify users unless "expressly forbidden" to do so. The draft bill addition says companies can only notify users if they're "expressly permitted" to do so. With everything hanging on the government's permission, agencies will rarely have to provide justification for secrecy. Instead, the onus will be on tech companies to remain tight-lipped unless the UK government gives them the nod -- something that will undoubtedly be a rarity.

On the plus side, it's not just tech companies being targeted by additions to the draft bill. Similar consequences await those who abuse their surveillance powers.

The bill also proposes a new offence of knowingly or recklessly obtaining communications data without lawful authority.

The measure is aimed at ensuring those officials, officers and spies who access the personal data do so legitimately and appropriately.

Those who break the law will also face up to two years in prison.

Of course, enforcement of this proposed addition sounds just as unlikely as UK police officers handcuffing Google execs for informing a surveillance target of the UK government's interest in them.

I'd say we'll just have to wait and see, but the draft bill is becoming a dumping ground for every wild-eyed legislator's idea on how to better "secure" the UK against the threat of terrorism. There are certainly more, equally-terrible ideas on the way. The only hope is that most of these will be discarded as the bill moves forward. It's a given that far too many bad ideas will still survive, but with any luck, the worst suggestions won't make it into the final version.

Filed Under: gag orders, surveillance, tech companies, uk

UK Government Spends Three Years And Large Sums Of Money To Avoid Revealing The Number '13'

from the pollutant-of-publicity dept

As we pointed out last month, the UK government is hoping to hamstring the country's Freedom of Information laws to make it much harder to dig out facts and thus hold politicians to account. In the meantime, it is going to absurd lengths in order to avoid responding to even the most harmless of requests, as this story from the BBC's Social Affairs Correspondent, Michael Buchanan, makes plain. Here's the background:

Back in 2010, the [UK's] coalition government were trumpeting a new red tape-busting cabinet panel, the Reducing Regulation Committee. I suspected that it was all froth and no action, so in 2012 I asked how often they had met since the committee's creation.

Nothing very threatening there, you might think, but the UK government refused on the basis that disclosing this magic number would "impinge on cabinet collective decision-making". So Buchanan appealed -- first, to the Cabinet Office, the department he had made the request to, where he was turned down, and then to the UK Information Commissioner's Office (ICO), which oversees this whole area of government transparency. Here's what happened:

Merry hell ensued. The ICO found in my favour, the Cabinet Office appealed, lost, appealed again, won, the ICO appealed for me, won, etc. Back and forth it went for three years. At one point, the government called in the fearsome-sounding "Treasury Devil", the so-called Star of the Bar, James Eadie QC [Queen's Counsel], to argue their case.

The "Treasury Devil" may or may not be fearsome-sounding, but he is certainly fearsomely expensive -- think top-class corporate lawyer expensive. In other words, the UK government was willing to spend many, many thousands of pounds of taxpayers' money in order to keep the number of meetings of an obscure committee secret. An earlier post by Buchanan reveals one of Eadie's devilish attempts to fend off the FOI request. The government's lawyer argued that:

publicly revealing how often a cabinet committee meets would harm the workings of government by introducing the "pollutant of publicity".

But in the end, the UK's Information Rights Tribunal was undaunted by the Treasury Devil and his artful alliterations, and it rejected the government's final appeal, going so far as to issue:

a strongly worded judgment which described the Cabinet Office's approach as "irresponsible", its key witness as "evasive and disingenuous", and her evidence as "of no value whatsoever".

And so, a mere three years and five months after he submitted his FOI request, Buchanan could finally write:

I'm now in a position to exclusively reveal to you, dear reader, that between 2010 and 2012, the Reducing Regulation Committee met on a total of 13 occasions.

And he adds:

Ministers are currently pondering whether to put restrictions on the Freedom of Information Act. In the meantime, how much it cost in legal fees to refuse my request for three years will be the subject of my next FOI request.

Well played, sir.

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Filed Under: foia, information commissioner's office, journalism, michael buchanan, red tape, reporting, secrecy, uk

Former UK Bureaucrat Whines About People Happily Looking At Mobile Phones Rather Than Fearfully Spying On Everyone Else

from the wtf? dept

Yes, lots of people whine about the fact that so many people out in public these days seem to have their heads down in their mobile phones, but as we've pointed out before, things aren't necessarily so different than in the past: However, Pauline Neville-Jones, the former head of the Joint Intelligence Committee in the UK, has taken this form of anti-smartphone luddism to new and even more ridiculous levels, claiming that all these people looking at their mobile phones or listening to music/podcasts in public are a public nuisance, because they're not watching out for terrorists. Really.

“I think being alert is very important. I am alarmed by the number of people I see wandering along the street entirely engaged in their mobile telephones and with their ears plugged into music and they are not aware of their surroundings. You need to be aware of your surroundings,” she told BBC Radio 4’s Today programme. “You do have to take some personal responsibility.”

In short: you lowly citizens, do not enjoy your life, but live in fear and report on any suspicious looking neighbors. I mean, while there have been terrorist attacks in the UK, it's not as if they're a regular occurrence. And living life in fear is hardly a productive way to live in a modern society.

However, Neville-Jones is pretty sure that living in fear is the best possible idea. Because she also encouraged the UK government to issue terrorist warnings more frequently, even if the evidence wasn't very strong:

She said the authorities had to take any intelligence seriously: “If you have got a piece of information, it may be difficult for you to assess it, you may not be comfortable about having a broader picture – part of the problem with intelligence is it can be fragmentary – but it’s a very bold government or policeman who chooses not to take precautions in such circumstances.

“I think the population on the whole would prefer them to be cautious and occasionally have closed something that it turned out wasn’t necessary – but how do we know – rather than take the risk of exposing people to dangers on which they have information, even if it’s not complete and on which they can’t necessarily totally rely.”

Of course, when you live in a world where bogus "terrorist threat" warnings come out all too often, it does the exact opposite of what Neville-Jones actually appears to want. That is, it makes people no longer trust the system at all, and become cynical about it. Wouldn't it be a lot smarter to explain to people that the real risk of dying in a terrorist attack is basically nil?

Filed Under: fear, fearmongering, mobile phones, pauline neville-jones, terror, terrorism, uk

These Ain't Masterminds: Would Be Terrorist Crowdsourced Targets On Twitter Using 'Silent Bomber' Handle

from the silent-but-deadly dept

I have to say, it can certainly be quite frustrating to watch dispassionately how terrorism is discussed in the United States. After the fervor in the immediate aftermath of 9/11, when terrorism was used either as a reason or excuse to enact all kinds of liberty-diffusing policies and to launch an insane surveillance state that we still haven't recovered from, I had thought we were quietly entering an era of eye-rolling at the way some in government throw around the word "terrorism." But, because the home of the brave is so easily whipped into a frenzy of fear, an admittedly horrible terrorist attack half a world away and a shooting spree in California that would have been shrugged off as "Hey, that's just America" except that the perpetrators had scary sounding last names, has once again meant that our political debates and twenty-four hour news programs are focused on the threat of Islamic extremist terrorism and not all of the other zillions of ways that you might die in the next twenty-four hours.

What all of this fear-mongering has done, which completely escapes my understanding, is create the impression that our enemy is generally devious and technologically intelligent on Bond-villain-esque levels. This is how you create a climate where a legitimate tool such as encryption is under attack as a threat. That's what makes it so useful to point out when would-be terrorists prove themselves to be bumbling idiots practically begging to be caught. Our own Glyn Moody wrote up a useful piece for ArsTechnica detailing one would-be terrorist's attempt to crowdsource his targets on Twitter under a not-so-smart Twitter handle.

A would-be UK bomber and his wife have been found guilty by the Old Bailey court of plotting to carry out an explosion in London to mark the tenth anniversary of the 2005 suicide attacks that took place in the same city. Both have been sentenced to life imprisonment: a minimum of 27 years for Mohammed Rehman, and a minimum of 25 years for his ex-wife Sana Ahmed Khan.

Remarkably, Rehman took to Twitter to ask for advice on which of those two targets he should choose: "Westfield shopping centre or London underground?" Rehman asked. "Any advice would be appreciated greatly." The post carried a link to an al-Qaida press release about the 2005 London bombings. Sky News reports that Rehman's Twitter name was "Silent Bomber," with the handle @InService2Godd. As if that weren't enough, his Twitter bio read: "Learn how to make powerful explosives from the comfort of ones' bedroom." The Twitter account has since been suspended.

I have seen the face of my enemy, and it is a very stupid face. This isn't to say that there aren't some terrorists and organizations with sophisticated operations, but the homegrown folks we're always warned to be wary of so often end up looking silly. When they are able to pull off their attacks, I'm often left wondering how we could have the surveillance state we do and yet these people aren't caught, as public and obvious they tend to be. In fact, far from proving the need for an attack on encryption, more often these attacks and attackers demonstrate the futility of the surveillance we're already doing.

Curiously, Rehman seems to have expended no effort to hide his online searches for information about how to create explosives, or his plans to carry out an attack. It doesn't appear that Rehman or his wife used encryption to hide their preparations from prying eyes.

Information about this latest (failed) terrorist bombing undermines further the repeated claim that the world is "going dark" for the intelligence agencies, and that strong encryption poses a threat to society. Once again, all the information that the security services needed to stop the plot was publicly available; fortunately, in this case it was spotted and acted upon.

Which is entirely the point: the best bulwark against terrorist attacks of this nature is the public itself. Anything that reduces the likelihood of the public actively alerting authorities to these threats is counter-productive. Such as the government taking a heavy hand in suggesting that sharing information about the threat is material support for that threat, or acting in a way that erodes trust in the government's ability to tell terrorism from normal criminal behavior.

The threat from terrorism isn't null, but the point is these aren't masterminds, folks, and we shouldn't be so eager to hand over liberty in favor of safety from what is mostly a really dumb enemy.

Filed Under: encryption, mohammed rehman, sana ahmed khan, terrorism, uk

UK Home Secretary Wants Everyone's Metadata; But If You Ask For Hers, Gov't Says You're Being Vexatious

from the funny-how-that-works dept

Theresa May, the UK Home Secretary who seems like a comic book version of a government authoritarian, is leading the charge in the UK for its new Snooper's Charter, officially called the "Investigatory Powers Bill," that is filled with all kinds of nasty stuff for making it easier for the government to spy on everyone. Among the many problematic elements is the demand for basically everyone's metadata. May dismissed the concerns about this by saying it's nothing more than "an itemised phone bill." Given that, Member of Parliament Keith Vaz noted to May that people might be interested to see May's itemized phone bill.

Soon after that, we noted that UK resident Chris Gilmour sent in a FOIA request for May's metadata. Specifically, he asked for the following:

1) The date, time, and recipient of every email sent by the Home Secretary during October 2015.

2) The date, time, and sender of every email received by the Home Secretary during October 2015.

3) The date, time, and recipient of every internet telephony call (e.g. "Skype" call) made by the Home Secretary during October 2015.

4) The date, time, and sender of every internet telephony call (e.g. "Skype" call) received by the Home Secretary during October 2015.

5) The date, time, and domain address of every website visited by the Home Secretary during October 2015.

Not surprisingly, it appears he was not the only one to do so. UK newspaper The Independent sent in a FOIA request asking for:

... the web browser history of all web browsers on the Home Secretary Theresa May's GSI network account for the week beginning Monday 26 October. Feel free to redact any web addresses relating to security matters."

There may be other such requests as well -- but both of these requests got back the same basic response from the UK government. In both cases, the government rejected the requests, claiming they were "vexatious." Here's the response to Gilmour's:

We have considered your requests and we believe them to be vexatious. Section 14(1) of the Act provides that the Home Office is not obliged to comply with a request for information of this nature. We have decided that your request is vexatious because it places an unreasonable burden on the department, because it has adopted a scattergun approach and seems solely designed for the purpose of ‘fishing’ for information without any idea of what might be revealed.

The requests are similar in nature to a request the Home Office received in 2014 that the Information Commissioners Office (ICO) agreed was vexatious. The decision notice in question can be found at this link: https://search.ico.org.uk/ico/search/decisionnotice?keywords=FS50544833

Guidance issued by the ICO on vexatious requests can be found at this link: https://ico.org.uk/media/for-organisations/documents/1198/dealing-with-vexatious- requests.pdf

It appears that The Independent got an identical response (word for word). The folks at The Independent seem reasonably annoyed by this.

While the Government is widening its own powers to access the information of citizens, it is watering down the public’s right to access the Government’s information.

Either way, there seems to be a legitimate question to ask Theresa May: if there's no big deal about having the government go through your metadata and it's "just like an itemised phone bill," then why is it so "vexatious" for the public to ask for May's metadata?

Filed Under: data retention, foia, freedom of information, home secretary, investigatory powers bill, ipbill, metadata, public records, snooper's charter, surveillance, theresa may, uk, vexatious

UK Government Has Secretly Created A Huge Database Storing Details About Its Citizens' Private Lives -- Since 2000

from the database?-what-database? dept

Long before the vast planetary surveillance programs being carried out by the Five Eyes team were revealed by Edward Snowden, there was Echelon, a similarly globe-spanning system for slurping up communications. The person who did more than anyone to expose this top-secret collaboration was the UK journalist Duncan Campbell:

In 1988, he revealed the existence of the ECHELON project, which has since 1997 become controversial throughout the world. In 1998, he was asked by the European Parliament to report on the development of surveillance technology and the risk of abuse of economic information, especially in relation to the ECHELON system. His report, “Interception Capabilities 2000” was approved by the European Parliament in April 1999, and presented to the parliament in Brussels in February 2000. In July 2000, the European Parliament appointed a committee of 36 MEPs to further investigate the ECHELON system.

The MEPs wrote another report, "on the existence of a global system for the interception of private and commercial communications (ECHELON interception system)", which was presented in July 2001. It would doubtless have created some pretty big waves in the EU had not the attack on the Twin Towers a few months later meant that nobody wanted to be seen weakening the intelligence services. The report was filed and Echelon was forgotten -- and carried on as before. A new article by Campbell published in The Register shows that around the same time that most politicians lost interest in exposing mass surveillance, the UK government was busily building another, highly-intrusive monitoring system that was only acknowledged very recently:

Finally, on November 4th [2015], the Home Office took the lid off what had been going on secretly since 2000. Asking Parliament to allow mass surveillance of telephone records to continue, Home Secretary Theresa May admitted that "under Section 94 of the Telecommunications Act 1984 ... successive governments have approved the security and intelligence agencies' access" to [bulk] communications data from communication service providers", claiming that it helped MI5 "thwart a number of attacks here in the UK".

According to Campbell, that "bulk communications data" includes detailed records of telephone calls, health records, personal credit card and banking transactions, flight bookings and internet records. As he points out, the fact that all this data was being gathered secretly meant that repeated -- and heated -- Parliamentary debates about whether it should be collected, conducted in the belief that currently it was not, were a complete sham:

MPs and peers spent months arguing about a pretence, and in ignorance of the cost and human rights implications of what successive governments were doing in secret.

As well as duplicity, that bespeaks a stunning contempt on the part of the UK government for both Parliament and the public. That indifference to people's concerns is also manifest in the latest attempt to bring in a Snooper's Charter, officially known as the Investigatory Powers Bill. Campbell points out that the only response from the UK authorities to widespread fears about the creation of a huge, intrusive database recording key aspects of UK citizens' lives is to pretend it doesn't exist:

Vigilance on behalf of liberty has had little discernible impact, except in the field of semantics. Across 299 pages in the new Investigatory Powers Bill, the word "database" does not appear once.

Billions of call and internet records, stolen financial data, intercepted travel records, a heap of bulk personal datasets on matters including religion, racial or ethnic origin, political views, medical condition, sexual orientation, or legally privileged, journalistic or otherwise confidential information, all joined up together and archived in secret do not constitute a "database", whatever techie readers may think. And that's official.

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Filed Under: citizens, dossiers, echelon, privacy, surveillance, uk

UK Throws A Copyright Crumb: Confirms That Digitized Copies Of Public Domain Images Are In The Public Domain

from the so-what-took-so-long? dept

A couple of weeks ago, Techdirt wrote about a German museum suing Wikimedia over photos of public domain objects that were in its collection. We mentioned there was a related situation in the UK, where the National Portrait Gallery in London had threatened a Wikimedia developer for using photos of objects that were clearly in the public domain. Mike pointed out that in the US, the Bridgeman v. Corel case established that photographs of public domain images do not carry any copyright, since they do not add any new expression. In a rare bit of good news, noted by Communia, the UK Intelllectual Property Office has just announced officially that it takes the same view (pdf):

Simply creating a copy of an image won't result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own 'intellectual creation'. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as 'original'. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

As that makes clear, even with this latest statement, there is still a measure of uncertainty as to what constitutes an "original" work in this context. Moreover, it's pretty ridiculous that it has taken until 2015 for the UK to accept something as basic and simple as the fact that digitized copies of public domain images remain in the public domain. But as Communia points out, it could be worse:

While the IPO’s position supports our conviction that what is in the public domain must stay in the public domain, it is of limited use in countries such as Germany or Spain where institutions can claim exclusive rights over unoriginal reproductions. Remedying this situation requires a further harmonisation of the EU copyright rules -- as proposed by the European parliament earlier this summer when it adopted the Reda report.

We won't know what the European Commission will propose in this area until spring next year. Let's hope it takes note of the UK's new position.

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Filed Under: copyright, culture, digitization, eu, public domain, uk

What Did The UK Accomplish In Revoking The Right To Rip CDs After Just One Year... Other Than Greater Disrespect For Copyright?

from the and-you-wonder-why-no-one-respects-copyright-law dept

A little history: In 2011, after quite a bit of study, the so-called Hargreaves Report was released in the UK, with some fairly mundane suggestions on how copyright law in the UK could be updated for the 21st century. One of the key suggestions? Admit that it was legal to rip your own CDs to MP3s, which everyone had simply assumed to be the case anyway. Of course, it took over three years for that to actually be implemented. However, back in August of 2014, the UK finally made it officially legal to rip CDs (of course, in the intervening three years, fewer and fewer people even bothered to buy CDs any more, but, details...). Then, less than a year after that happened, we noted that the UK's high court stripped away that right after the record labels protested. The court ruled that private ripping of CDs "harms" the recording industry and thus, couldn't be allowed. The court left open the possibility that perhaps the UK government might find a workaround, but the UK's Secretary of State told the court it was fine with killing the law anyway -- and thus, on July 17th, the private copying exception was dead.

And just like that, less than a year after the UK officially got the right to rip CDs they had legally purchased, that right disappeared. This story is making news again after the excellent 1709 blog had something of a postmortem for the briefly-held-before-being-lost right and others including Ars Technica and Boing Boing picked up on the story, even though the right died back in July.

However, with this new coverage, it left me thinking -- what exactly did the recording industry accomplish here that helps it in any way? A key part of the reasoning of the original Hargreaves report was that allowing a private copyright right would actually bring copyright norms into alignment with what people expected copyright law to allow -- thus giving people more of a reason to respect copyright law, for not being totally ridiculous and unreasonable:

The Review favours a limited private copying exception which corresponds to what consumers are already doing. As rights holders are well aware of consumers’ behaviour in this respect, our view is that the benefit of being able to do this is already factored into the price that rights holders are charging. A limited private copying exception which corresponds to the expectations of buyers and sellers of copyright content, and is therefore already priced into the purchase, will by definition not entail a loss for right holders.

And yet, the record labels still went to court to block this and won. And yet... no one actually thinks the record labels are now going to sue individuals for ripping CDs, because that would be ludicrous.

The end result, though, are a bunch of headlines mocking copyright law and how out of touch it is with reality. I'm honestly trying to understand what the record labels' strategy was here. They spent money on a legal fight where the only thing they got out of it was a right they've never used and which they're unlikely to use -- but in doing so further eroded the public's respect (whatever might be left of it) for copyright law. This is kind of amazing, given how frequently we hear people from the recording industry insist that copyright must be respected. Yet, they're the ones who constantly make a complete mockery of it as they have done here. And for what? To retain a "right" they were never going to use in the first place? Is it really so scary to the industry to give an inch that they must fight to make copyright even less respected in the process?

Filed Under: cds, copyright, personal copies, ripping, uk