The Digital Economy Act is a truly soul-destroying piece of legislation, and OFCOM has not exactly been on the ball in meeting its obligations under the sections of the act designed to safeguard some small figleaf of consumer rights. Having read the entire consultation and parts of the Act itself, below is the response I have just submitted to OFCOM’s consultation on the Initial Obligations Code.
The deadline to respond to the consultation is Friday July 30th, 5pm. You can find the full consultation and details on how to respond here.
You can find more details on what the DEAct and Initial Obligations Code mean for you here.
You can join the Open Rights Group, which campaigns for your digital rights and against draconian legislations such as the DEAct, here.
Question 3.1: Do you agree that Copyright Owners should only be able to take advantage of the online copyright infringement procedures set out in the DEA and the Code where they have met their obligations under the Secretary of State’s Order under section 124 of the 2003 Act? Please provide supporting arguments.
Yes. In addition I would propose that an annual review is undertaken, comparing Copyright Owners’ initial estimates of CIRs with the actual number they have submitted throughout the year. The results of this review should be used for cost-sharing, as well as to help Copyright Holders improve the estimates they provide to ISPs.
Question 3.5: Do you agree with Ofcom’s approach to the application of the 2003 Act to ISPs outside the initial definition of Qualifying ISP? If you favour an alternative approach, can you provide detail and supporting evidence for that approach?
I am strongly concerned about section 2.23 (“Where a Wi-Fi network is provided in conjunction with other goods or services to a customer, such as a coffee shop or a hotel, our presumption is that the provider is within the definition of internet service provider.”). While I understand that initially such providers will fall outside of the framework of Qualifying ISPs, I believe it sets a dangerous precedent for the future. Open WiFi access points really help small businesses thrive. They also enrich the UK’s digital and physical economy. Increasingly, open WiFi access is expected as standard by customers of most coffee shops and hotels as well as other small business, and certainly is rapidly becoming standard in other countries.
The above quoted section is likely to strongly discourage proprietors of small business to provide open WiFi access as a feature to their customers. This is in turn likely to damage those businesses by driving customers away, and to have a significant negative impact on quality of life in Britain.
Question 3.6: Do you agree with Ofcom’s approach to the application of the Act to subscribers and communications providers? If you favour alternative approaches, can you provide detail and supporting evidence for those approaches?
I believe section 3.30 of the consultation document (“We consider that a person or an undertaking receiving an internet access service for its own purposes is a subscriber, even if they also make access available to third parties.”) potentially directly contradicts section (“Where a Wi-Fi network is provided in conjunction with other goods or services to a customer, such as a coffee shop or a hotel, our presumption is that the provider is within the definition of internet service provider.”).
Question 4.1: Do you agree with the proposed content of CIRs? If not, what do you think should be included or excluded, providing supporting evidence in each case?
I am concerned about the invasion of privacy which collecting this kind and amount of information about subscribers’ communication represents. I do, however, believe that if this kind of information is collected it should be made available to subscribers accused of infringement in its entirety to facilitate the appeals process.
Question 4.2: Do you agree with our proposal to use a quality assurance approach to address the accuracy and robustness of evidence gathering? If you believe that an alternative approach would be more appropriate please explain, providing supporting evidence.
This proposal does not meet the obligations explicitly put on OFCOM by the Digital Economy Act in Sections 7.2.a and 7.2.b with regards to the Initial Obligations Code, namely that “The required provision about copyright infringement reports is provision that specifies (a) requirements as to the means of obtaining evidence of infringement of copyright for inclusion in a report; (b) the standard of evidence that must be included”.
Allowing industry self-regulation on this matter risks breaching privacy legislation and does not live up to standards of openness and transparency one would expect in a modern democracy. I believe it is vital for OFCOM to review this section and set out detailed provisions as required by the Digital Economy Act.
Question 5.2: Do you agree with our proposal to use a quality assurance approach to address the accuracy and robustness of subscriber identification? If not, please give reasons. If you believe that an alternative approach would be more appropriate please explain, providing supporting evidence.
Similarly to question 4.2, I do not believe that OFCOM’s current proposals are meeting OFCOM’s obligations under the Digital Economy Act Section 7.3.a, namely “The required provision about the notification of subscribers is provision that specifies, in relation to a subscriber in relation to whom an internet service provider receives one or more copyright infringement reports (a) requirements as to the means by which the provider identifies the subscriber”.
Allowing industry self-regulation on this matter risks breaching privacy legislation and does not live up to standards of openness and transparency one would expect in a modern democracy. I believe it is vital for OFCOM to review this section and set out detailed provisions as required by the Digital Economy Act.
Question 5.3: Do you agree with our proposals for the notification process? If not, please give reasons. If you favour an alternative approach, please provide supporting arguments.
OFCOM has chosen a time-based approach for escalating copyright infringement notifications. In principle I agree with this, however, as I understand the current provisions, they do not foresee an expiry date for any notifications. I believe it is vital for notifications and CIRs to be time-bounded and to be deleted from a subscriber’s record after no more than 12 months, and that this should be made very clear and explicit in the Initial Obligations Code.
Question 5.4: Do you believe we should add any additional requirements into the draft code for the content of the notifications? If so, can you provide evidence as to the benefits of adding those proposed additional requirements? Do you have any comments on the draft illustrative notification (cover letters and information sheet) in Annex 6?
Any notification should, in addition to the proposed content, include a detailed explanation of how the evidence of copyright infringement was gathered and the subscriber’s IP address matched to them; a copy of the detailed evidence from both the Copyright Owner and the ISP; any other data the Copyright Owner and the ISP hold in relation to the incident in question; information on how long this notification will be held on the subscriber’s record before it is deleted.
This will help subscribers understand the process better as well as give them some of the data they will require to lodge an appeal if appropriate.
Question 7.1: Do you agree with Ofcom’s approach to subscriber appeals in the Code? If not, please provide reasons. If you would like to propose an alternative approach, please provide supporting evidence on the benefits of that approach.
To enable subscribers to lodge an effective appeal, they will need access to the detailed evidence (see also my response to question 5.4). Additionally, there is a significant information asymmetry between the subscriber on the one hand and the Copyright Owner and ISP on the other as the latter have significantly more technical expertise at their disposal. It is therefore extremely difficult for subscribers to lodge effective appeals as they may not be able to understand the technical details of the evidence against them and how this information was obtained. This is a very serious concern.
The deadline to respond to the consultation is Friday July 30th, 5pm. You can find the full consultation and details on how to respond here.

I’m going to confess to being the kind of geek who booked tickets to ORGcon the day it as announced, about 6 weeks ago, and who’s been looking forward to it for the last two weeks. And now I’m on the train home, utterly exhausted, having had a fab day and with my brain exploding with ideas. I think this post will mostly be an account of the event itself, though I wouldn’t be surprised if there were a couple of follow-up posts sparked by some of the conversations I had.
The opening keynote was a panel titled “Thriving in the digital economy”, with Cory Doctorow, David Rowntree (of Blur and ORG Advisory Council Fame), Jeff Lynn from Coadec, John Buckman from Magnatune and the EFF, and Obhi Chatterjee of Shyama fame. The panel covered a wide variety of areas, from why the current implementation of copyright, with all the DRM, litigation, etc. that comes with it, is bad both for content consumers and for most content creators, to looking at alternative business models and all the benefits that the real digital economy can bring.
One of my favourite quotes from the session was Cory Doctorow explaining how “it’s absolutely impossible to monetise obscurity.” On the flip side, he held up the example of Amanda Palmer’s recent pay-what-you-want album release accompanied by special edition merchandise: the merch sold out within 3 minutes, bringing in $15,000. Cory also spoke about how a side effect of the copyright hysteria is that we are increasingly designing our devices in a way that gives the user less and less control over them, and gives third parties (content distributors, rights holders, etc.) more and more control. Think of what Apple tell you that you can and can’t do with your iPhone and iPad, think of Amazon deleting paid-for ebooks from their customers’ devices, think of the closed, unstandardised nightmare that is your games console or set top box.
Dave Rowntree then spoke of the concept of an original of a work of art, and how in the digital age more and more artworks cannot really be said to have an original anymore. Faithful copies are cheap and easy to make, so to make money, he argued, artists need to create something that feels like an original, be that a box set, a special edition, or a performance.
Jeff Lynn spoke about how the legal framework of copyright should encourage creativity, not protect vested interests from technological change. John Buckman pointed out that digital rights are a global issue due to legislation harmonisation – even before ACTA there has been a significant convergence trend in this area. He also spoke at length about how DRM was protecting big companies’ interests from smaller competitors, and quoted Apple and Amazon as examples of this.
The Q&A at the end of the session included a really interesting question about the games industry. Cory Doctorow explained how the games industry has both suffered and benefited from the fact that legislators treat it mostly as a corrupting influence. The net result, however, has been that in the absence of DMCA-style enforcement in that area, the industry has had to think on its feet and re-invent itself as a service industry to beat “piracy”. I managed to get a comment in to the effect that content is a public good, and Cory Doctorow, riffing on Dave Rowntree’s theme of creating an original, pimped the forthcoming special edition of his short story collection which, frankly, gave the 400 or so assembled geeks a geekgasm. I am incredibly tempted to raid the savings account.
The next session I attended was a workshop on how to talk to MPs, in which Tom Watson gave an insider’s view into the life of an MP and gave us some invaluable tips for lobbying our elected representatives. I took a few key learnings from this: MPs are busy generalists and digital rights are an extremely complex topic; you have to take your MP on a journey, tell them a story to help them understand why the issues you are talking to them about are important; going to your MP’s surgery and talking to them in person can be the thing that makes the difference between them considering the issue or not; and making best friends with your MP’s case worker is a worthwhile investment. We did a brief role play to practise some of what we’d learned, and I was extremely fortunate to talk to an actual MP – Jane Ellison, Con., Battersea. She seemed genuinely interested in the subject as well as giving me some good input, which I really appreciate. Ultimately, digital rights is not a party-political issue, and chances are that you can find support from either side of the House – but you need to be prepared to take the time to educate your MP.
The next keynote was by Prof. James Boyle (@thepublicdomain), titled “The Incredible Shrinking Public Domain: A Paradox”. There was some great food for thought in that. Prof. Boyle pointed out how we are the first generation in history who are cut off from their own culture. The extension of copyright terms that we’ve seen in that past few decades from as little as 14 years to a retrospective extension to 70 years after the creator’s death has the effect that, barring a deliberate choice from the creator, our culture is not accessible to be built on by others within the same generation – or even several generations on. Yet, by far the majority of works exhaust their commercial viability after only five years, and most works which copyright term extensions have put beyond our reach are actually orphan works. In addition to this, because copyright law is inconsistent, impractical and only benefits a very small number of people, an entire generation is growing up with the idea that breaking the law isn’t actually wrong; and while this may be relatively harmless in the case of copyright law, it significantly undermines the foundations of our society. There was a good discussion in the Q&A on the subject of civil disobedience. I believe all the sessions were being recorded and hope that they will be made available on the internet. If you only have time to see one, make it this one – it was a very good talk indeed.
After lunch (which was spent with pfy, ewtikins and Simon and Julia Indelicate, talking about making art for everyone), Tom Watson, Julian Huppert, John Grogan, Anita Coles and Richard Allan (Eric Joyce having been “detained in Colombia”) gave us an eye-opening insight into the Digital Economy Act – both how it came into existence and what we can do from here to fight some of the more unpleasant parts of it. My key take-outs from the session: the DEAct was the result of the biggest lobbying operation Tom Watson has seen in his political life, with MPs being outnumbered 4:1 by lobbyists at some meetings; copyright is not actually something most politicians care or know much about – though some of that is changing and the ORG, Liberty and Consumer Focus campaigns are beginning to have an effect; a lot of the future of the Act will depend on two men in particular: Vince Cable and Jeremy Hunt; and while Cable is broadly supportive of the digital rights agenda, Hunt has so far been hard to read on this and some of the panellists were very pessimistic on that front. There was a general consensus among the panel that the DEAct was unlikely to be repealed in its entirety (and that that wasn’t necessarily desirable), but that “laser surgery” was possible and something worth fighting for.
Following this I attended a workshop on the future of the DEAct campaign, with different sub-sessions, including one on reclaiming public attention for digital rights issues. There might even be a video of me speaking at that (eek!), and I do owe Florian some notes which I will send through when I’m slightly less braindead. Incidentally, the immediate next step on fighting the DEAct is to respond to the Ofcom consultation by this Friday (30/07). You should do that.
I must admit I was ever so slightly out of my depth in the session on reforming privacy laws, but there were some very good speakers there, and I do have a fair amount of things to read up on as a result. Jennifer Jenkins’ talk “Theft! A History of Music” was both informative and entertaining. She pointed out that ever since Plato we have been terrified of remixing music; that technology is unruly and creates havoc with music; what used to be creativity is now considered theft; and that copyright extensions for the work of dead musicians seemed to be confusing composing with decomposing. Possibly my favourite quote of the day was from a Pirate Party member in the Q&A of the session, along the following lines: “Up until the 10th century you only needed musical talent to be a musician; from the 10th to the 19th century you needed to be literate as well; in the 20th century you needed expertise in recording technology, and in the 21st century you need a law degree.” I have to point out that I was ever so well-behaved in that session, as Cory Doctorow was sat behind me and two seats across (retweeting me on a couple of occasions) and I did not turn into my “crazed fangirl” alter ego at all. 😉
The final session I attended before running for the train was titled “Music Industry Reformists”, with the panel consisting of Simon Indelicate, Steve Lawson, Dan Bull and John Buckman. (Simon was scandalised that the four of them were “the best they could come up with” on the subject of music industry reform.) There were interesting discussions on music industry business models old and new and what it’s like being a signed artist, and going from signed, to unsigned, to unsignable (both Simon and Dan were very proud of their unsignable status). John Buckman made some interesting points about the process of shopping for music being neither fun nor cool, and finding new music being a social activity; he also thought (and his business results seem to confirm) that MP3 downloads aren’t the be-all and end-all of music distribution these days and there is room for a wide variety of streaming, downloading and other distribution options. Steve Lawson said that 90% of the time he talks about other people’s music, because what’s good for music is good for him. He also made a very good point about the “P” word – piracy is very far from being an appropriate word to describe copyright infringement, and the copyright debate has been hijacked by language.
Overall, I had a great time. My one piece of constructive feedback would be that there wasn’t quite enough time for networking in the agenda – there were quite a few people I wanted to meet or chat with and it just wasn’t possible, especially as I had to escape to catch a train and couldn’t head to the pub with everyone at the end. I do very much hope that this will be the first of a series of annual events, and that I’ll be able to wear my “Step outside analogue boy” t-shirt with pride next year. A huge thank-you goes to the organisers and the speakers for a great event.