Archive for January 2012
The 22 European states that signed up to the controversial Anti-counterfeiting Trade Agreement (Acta) last week may have been in an unseemly rush.
They appear to have ignored the recommendation that the European Parliament (EP) postpones ratification of the US-inspired agreement on at least two grounds: firstly, because it does not comply with existing European rules and agreements (acquis) as it stands, and secondly, because the European Court of Justice has not had a chance to evaluate the method for calculating financial damages for copyright infringements.
The haste with which the UK and 21 others joined the US, Australia, Canada, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea and Switzerland may also have led to the resignation of Kader Amir, the Acta rapporteur. Amir was responsible for shepherding the agreement through the EP ratification process, scheduled for June. He quit on the day of the signing, describing the process as a “masquerade“.
The recommendation to postpone is in a 76-page technical assessment ordered by the EP as to whether Acta is compatible with the existing acquis communautaire and the World Trade Organisation’s Trade Related intellectual Property rights (TRIPs) Agreement. (For my highlighted copy see here.)
The authors found plenty that disturbed them. Some of it may be why Germany, the Netherlands, Estonia, Cyprus and Slovakia did not sign up.
They also said it was “difficult to point to any significant advantages that Acta provides for EU citizens beyond the existing international framework”.
“The apparent lack of intent to seek congressional approval and thus actually implement the treaty in US law begs the question of what, if anything, the EU gained from the US. There are serious concerns regarding whether Acta will have any effect under US law and thus be able to be treated as a treaty under international law,” the authors said.
They added that the exclusion of China, India and Brazil (which were apparently not invited to the secret negotiations and which have all raised questions over Acta) meant that major competitors to the EU are not bound by its provisions.
The authors said the EU had won one concession, that Acta signatories would act against faked geographic indicators (GIs). GIs cover brands like Parma ham and Champagne. But counties that do not already protect GIs are not bound by Acta. This exempts the US, Australia, Japan and South Korea, the study said.
The authors found that proposed measures on copyright piracy seen in early leaked documents published on WikiLeaks had been watered down. However, the proposed financial penalties go further than existing EU and international agreements.
“Damages apply not only to a knowing infringement but also to infringement due to negligence,” the report says. “Thus those who could be considered to have reason to know they were or might be infringing, would be liable for damages even if they did not intend to infringe.”
This would appear to nail websites like The Pirate Bay and MegaUpload. These pointed to sites that held infringing material, even though they did not host it themselves. Both have been shut down using other laws.
But it could include search engines such as Google, which index and point to sites that host infringing material. Google is clearly the focus of a secret document, now public after a Open Rights Group Freedom of Information request, that calls for search engines to delist sites that hold infringing material.
Acta provides for judicial authorities to order four types of financial penalties: for the infringer to pay his profits to the rightsholder, to pay pre-established damages, or a presumption of the harm caused by the infringement, or additional damages.
The authors objected to the way in which damages are to be calculated. They said, “The focus is not on objective tests but on any ‘legitimate’ measure of value the rightsholder puts forward.”
The list of measures to be taken into account when assessing damages contains “two novel approaches that are problematic” and not in the existing rules. These are the market price of infringing goods, based on the concept that each infringing product constitutes a lost sale; and the suggested retail price, which they describe as “another proxy for the concept that each infringing product represents a lost sale”.
The authors said, “This latter authority is only mandatory for cases of copyright and trade mark infringement, not for the infringement of designs, patents or geographical indications.”
The authors noted that rightsholders could allege copyright infringements to prevent competitors indefinitely from entering markets. This could include makers of generic drugs (drugs that are out of patent protection), but only in signatories’ markets.
Acta also excluded copying for personal, no-for-profit uses, including “fair use” for study, teaching, new reporting, commentary or criticism, they said. It also sought to criminalise unauthorised copying by anyone.
“(Acta’s) criminal measures (are) most problematic in the field of copyright and related rights, as these cover not only economic actors, but address private individuals in equal measure,” they said.
The authors accepted that it is important to protect intellectual property, but added that “knowledge” has a sell-by date.
They raised questions over who stands to benefit from such protection. The said countries with more established knowledge-based capabilities (ie research-intensive manufacturers, pharmaceuticals, software, or creative products such as music, films, etc) will benefit, not least through enforcement.
“Countries with weaker knowledge-based capabilities are likely to benefit most by being outside such an international system, so they can freely exploit and imitate IP-related products in their own domestic economies,” the authors say.
“Where they are successful, these countries may even be able to compete with the original IP owners, thus becoming exporters of such products themselves.”
From the start Acta has aimed to further the interests of the US music and film industry, almost exclusively. It has been negotiated in secret, with US president Barack Obama stating at one point that it was a US national secret. It does nothing to enhance protections the EU has already secured in public forums, and may severely curtail the ability and capacity for its people to use what is already published for legitimate ends.
Rejecting ratification means that the EU writes off the cost of the negotiations, and possibly some political capital. Accepting it lock, stock and barrel potentially exposes EU citizens to unquantifiable criminal and financial penalties for an indefinite period, while allowing its main economic competitors free reign.
If you were an MEP, what would you do?
There have been startling developments in the field of online copyright in the first few weeks of 2012.
Yesterday saw the European Parliament’s rapporteur, Kader Arif, hand back the dossier on the controversial Anti-counterfeiting Trade Agreement (Acta). Arif’s job was to shepherd it through parliament so that member states can get on with enacting it.
Arif said he was no longer prepared to be part of the “masquerade”, and denounced the process that had brought Acta to the point where yesterday 22 countries signed up to it.
This followed less than a week after the US Congress withdrew two bills to clamp down on online copyright infringement, and the FBI shut down MegaUpload, a website that allegedly traded or pointed to infringing copyright material.
In the past week, the music industry produced figures that showed that while sales of CDs were down, legal digital downloads were at record levels.
Meanwhile, the UK government has asked former Ofcom boss Richard Hooper to look into the feasibility of setting up a digital copyright exchange, where creators can license their work to others who want to reproduce or reuse and distribute it.
All this follows the abortive eG8 meeting last year, where “new media” representatives crossed swords with advocates for harsh penalties for copyright infringers.
The copyright issue is simply this: people who were prepared to invest bought the right to copy and distribute the original work from the creators. The machinery, materials and transport were relatively expensive, too much so for most individual creators. But thereafter the rightsholders enjoyed an effective monopoly on sales of the work, and made a lot of money from it. The internet threatens that monopoly because digital content is easy and cheap to copy and distribute by anyone with a computer and internet access.
This is not a new problem. The music industry in particular has gone a long way to coming to terms with it, even if it doesn’t like giving 30% of the sale price to Apple for stuff sold through iTunes. So the question is why it is suddenly big news?
Deep in the heart of the debate is the issue of control of the internet.
The concerns of the rightsholders are valid, but they are a sideshow. Much more important, in some circles, is to legitimise the power to censor content on the internet and to monitor troublemakers.
There can be few governments that looked on the Arab Spring, and not shiver at how fast legitimacy can wash away. Wikileaks’ release of official video footage that showed the apparent murder of civilians by US armed forces shocked millions. Wikileaks’ subsequent release of embarrassing diplomatic cables, and the reaction to it, showed how potent the net is in helping to shape public opinion. For most governments, it is simply too dangerous for the internet to be left uncontrolled.
So governments are content to let or even encourage the music and film industries to make the running for the legislation to shut down offending content and websites. The faceless MEPs in Brussels offer a convenient mask, as Arif says.
Forget about copyright piracy – it is a red herring. This is really about political control of the net. No doubt, like Winston Smith, we may all have learn to love Big Brother.
Delegates to last year’s meeting to discuss the provision of next generation broadband in West Sussex are likely to have left the meeting with the belief that towns served by three of the four BT exchanges in the UK that have not been upgraded to broadband-capable could not in fact receive broadband.
This was and is not the case, as Kijoma’s Bill Lewis tried to make plain at the meeting. Kijoma’s coverage could and did and does cover them, according the green-shaded bits of the map here that Lewis has just sent me.
For some reason, the official map prepared by West Sussex County Council does not reflect Kijoma’s coverage, although it is possible to discover Kijoma on the SamKnows site, as I did earlier with respect to West Chiltington.
Not including Kijoma’s coverage may lead one to conclude that there is no broadband available to residents in those towns. But Lewis argues, strongly, this is not the case.
So why does WSCC, and how many other county councils, not include existing wireless broadband coverage, when the official line is that wireless is one of the technologies that will have to be used to deliver broadband for all?
A reader in the (fixed line, pax, Kijoma) broadband-starved county of West Sussex has just sent us this screenshot. It shows that BT estimates the dial-up line in question will get a “typical line speed” of between 750kbps and 2.5Mbps if the subscriber upgrades to broadband.
Our reader says previous correspondence with BT revealed that the a line length of “8.5-9km/DB losses of between 82 and 86 DB”, which probably makes it impossible to achieve those speeds. “I am most impressed with the BET they are obviously going to employ here!” he writes.
More seriously, he adds “Does this flawed data get into BDUK’s/LAs systems? We need to know. This customer is possibly ABOVE the USC (universal service commitment) according to BT, but is only getting 40kb.”
This is not the only flawed data that BDUK or even Ofcom might hold. Bill Lewis of Kijoma has been fighting to have his wireless broadband footprint included in the coverage maps – to no avail. Kijoma provides high speed broadband to parts of West Sussex, including areas served by three of the four BT exchanges in the UK that cannot deliver broadband. West Sussex County Council’s map of the area do not show Kijoma’s footprint.
Everybody involved the the next generation broadband project, including BT, is on record saying that there needs to be a mix of technologies, including wireless, in the local access loop. Why then are existing wireless providers being ignored? Why do the maps not reflect truly what’s available? What other incorrect data are being used to support claims to £530m of taxpayers’ money?
Enough people have raised the incorrect data issue with BDUK, DCMS, Ofcom and the government that for them to ignore it is wilful. We must ask why.
Would it shrink the areas eligible for state-aided funding? If so, in whose interest is that?
Thanks to a reader for sending us this exchange.
Want ubiquitous high speed broadband access on the cheap and still meet the EU’s targets?
Scrap the upcoming spectrum auction, give the 800MHz and 2.6GHz spectrum at stake to Arqiva and let the present and future operators rent it.
In December the East Sussex County Council (ESCC) announced it would add a “provisional” £15m to the £10.64m allocated to it from the Broadband Delivery UK’s £530m kitty for next generation access.
According to the minutes of the meeting, the £10.64m was to ensure coverage of 90% of the population. The council has now ordered a “robust” evaluation of a. what it will cost to take coverage of “superfast” broadband to 90% and b. 100%. It hopes to kick off procurement in late spring.
The East Sussex Local Investment Plan 2011-2014 has some interesting statistics and views that are likely to affect the council’s plans for high speed broadband.
According to the investment planners, East Sussex faces several challenges, among them
- Poor strategic (road and rail) and communication infrastructure
- An ageing population with an associated increasing demand for services
- Inadequate access to services in some rural areas
- Low wages and skills
- Few high earners, most working outside the county
A weak local economy, over-dependence on public sector, and small businesses which have lack of space in which to grow
- Little incentive for businesses to re-locate to, or new businesses to set up in, East Sussex
If ever there was an opportunity to test whether access to high speed broadband could make a positive impact on social and economic circumstances, East Sussex could be that case study. So there is plenty of incentive for the ESCC to go beyond BDUK’s requirement to match its funding.
According to the plan, about 500,000 people live in East Sussex. Even though the population is expected to grow by 33,100 between 2006 and 2026, the average age is expected to skyrocket.
There are some 232,000 houses of which 25,500 are social housing. Some 3.5% or 8,120 are empty, and 5% (11,600) are unfit to live in, making 212,280 households that might be up for high speed broadband, if they could afford it. Upwards of 15% of children (more than 22% in Brighton & Hove) live in low income households.
East Sussex contain a big chunk of the South Downs and the Weald. There are lots of farms and big properties. About 65% of the county is an Area of Outstanding Natural Beauty or a National Park. This makes planning permission hard to get and drives up house prices. About 80% of East Sussex homes are priced above eight times average local earnings.
It is unsurprising then that 15 to 24 year old are leaving the country. Only the wealthy can afford to move there are, so most new settlers are in the 45 to 64 age bracket, having made their money elsewhere. Many of the rest commute to London.
So, what is BT doing about it? A quick trawl of its press releases for East Sussex NGA projects reveals
|13/09/11||FTTC||85000||Baldslow, Bexhill, Brighton Rottingdean, Eastbourne Pevensey, Hailsham, Hampden Park, Lewes, Newhaven, Polegate and Seaford|
|19/10/11||Copper||8800||Newick and Polegate|
|12/12/11||FTTC||450||Eastbourne Pevensey Marina|
BT has so far said it will upgrade broadband to 155,250 houses, 146,500 with fibre to the cabinet (FTTC) or up to 40Mbps (soon to be up to 80Mbps) and 8,800 with less than 20Mbps. That’s 73% of the houses, nicely above its self-imposed target of 66%, or getting close its 90% target, with a little help from BDUK et al.
Of course, we don’t know actually how much it costs BT to “pass a home”. The gross figures (£2.5bn divided by 66% of 27m premises) suggest it’s around £140 per house for urban areas.
So at 40% coverage (all urban) so far ESCC may have to dig deeper just to get to 90%. Or make another plan, if ESCC truly believes the game is worth the candle.
It has been pointed out that the June press release referred to Eastbourne and Hastings. It also said, “The six exchange areas announced today in the South East are Brighton Kempton in Brighton; Cowley in Oxfordshire; Folkestone and Westgate in Kent and Hastings and Eastbourne in East Sussex.” The story has been edited to reflect this. Sorry for any confusion, and thanks to our eagle-eyed readers for noting the error.