Rupert Bear’s sticky paws part 3:News Corp & The Hargreaves IP Review

 As promised, part 3: Covering the period between publication of the Hargreaves Review into Intellectual Property (May 18th 2011) and the government response to the Review (3 August 2011)

Part 1:

Part 2:

 

FM6 = Evidence to Leveson Enquiry  24th May Exhibit FM6

http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM6.pdf   (16.9Mb)

[] indicates redacted text in emails.

FM6 p326  Email Frederic Michel to Rohan Silva (special adviser to David Cameron PM)  see blue highlighted text 

Cc:[]

To: Rohan Silva[]

From: Michel, Frederic

Sent: Wed 29/06/2011 10:35:25 AM

Subject: Thank you

So much we can do together!

Thank you for your time!

– would love to connect with Laura at Francis Maude’s office and come sit down with Francis

– we should sit down with Craig/Rupert to discuss growth/innovation

– Hargreaves review: let’s keep talking re-potential leader

– Shoreditch: we should plan a visit with James and GO

– schools: i should hook up with Rachel asap

– big society: happy to make things happen with Steve

Fred

Frederic Michel

Director, Public Affairs Europe

News Corporation

An important proposal in the Hargreaves Review was the creation of a Digital Copyright Exchange  which would require:

“4.35 In order to achieve the necessary momentum to create the Digital Copyright Exchange, a highly respected figure will be needed to lead its formative stage. The goal should be to establish these new arrangements by the end of 2012.” Hargreaves Review Final Report May 2011

Therefore, “potential leader” makes most sense if this refers to the Digital Copyright Exchange.

FM p327 Email From Frederic Michel to Adam Smith (special adviser to Jeremy Hunt)

To: adamsmith[]

From: Michel, Frederic

Sent: Wed 29/06/2011 12:59:41 PM

Subject: Hargreaves

James and I would like to suggest for Jeremy to meet with []from Lazard who we think would be a great choice to lead the Hargreaves work. Would you like his contact details?

Seeing Giles on Monday on Hargreaves.

Would be great to see the draft doc. whenever you’re ready ….

Fred

“James”  is presumably James Murdoch. “Giles” is Giles Wilkes (special adviser to Vince Cable). Wonder who the man from Lazard was? The eventual appointment in November 2011 to lead the Digital Copyright Exchange work was Richard Hooper, Deputy Chairman of OFCOM between 2002 and 2005.   “Draft doc” must be government response that News Corp met Giles Wilkes on 04 July 2011 to discuss (see Part 2:)

FM6 p334  Email Michel to Smith

To:adamsmith~

From:Michel, Frederic

Sent:Fri 01/07/2011 10:47:39 AM

Subject: Are you sending me draft of Hargreaves response?

FM6 p 335 Email Smith to Michel

To:Michel, Frederic[]

From:Adam Smith[]

Sent:Fri 01/07/2011 10:49:17 AM

Subject:Re: Are you sending me draft of Hargreaves response?

not yet. we’re trying to change it so much it won’t be worth it

On Fri, Jul 1, 2011 at 11:47 AM, Michel, Frederic [] wrote:

FM6 p337 Michel to Smith

To:’Adam Smith’[]

From:Michel, Frederic

Sent:Fri 01/07/2011 10:59:54 AM

Subject: RE: Are you sending me draft of Hargreaves response?

Ah …… ok …. meeting Giles Monday, morning…J ….so whenever you can

From: Adam Smith [mailto :@[]

Sent: 01 July 2011 11:49 [

To: Michel, Frederic

Subject: Re: Are you sending me draft of Hargreaves response?

not yet. we’re trying to change it so much it won’t be worth it

On Fri, Jul 1,2011 at 11:47 AM, Michel, Frederic [] wrote

FM6 p340 Michel to Smith

To:’Adam Smith’[]

From:Michel, Frederic

Sent:Mon 04/07/2011 9:57:46 AM

Subject:RE: Are you sending me draft of Hargreaves response?

Whenever you’re ready to send it…

I will debrief you after our meeting with Giles this morning

From: Adam Smith [mailto:@[] Sent: 01 July 2011 11:49

To: Michel, Frederic

Subject: Re: Are you sending me draft of Hargreaves response? not yet. we’re trying to change it so much it won’t be worth it

On Fri, Jul 1,2011 at 11:47 AM, Michel, Frederic [] wrote:

“Trying to change it so much it won’t be worth it”. What can I say?  The thread above suggests a struggle was going on between DCMS and the IPO, inside BIS,  over the government response.

“The response accepts all ten of Professor Hargreaves’ recommendations. The Government’s goal is to have measures in place by the end of this Parliament that will realise the Review’s vision and deliver real value to the UK economy, and to the creators and users of Intellectual Property (IP).”

Government response to Hargreaves Review  published August 2011

One can only wonder what the response would have been if the News of the World hacking scandal hadn’t broken and made the over-close links between government and powerful business interests so apparent ?

Next post, I’ll try to pull the threads together and produce a summary. The gist. The government response and consultation paper published in December 2011 augur well for copyright reform in the UK. But there is still a long way to go.  So, lobbyists and back channel nobblers- keep your sticky paws off the Hargreaves Review.  This time give copyright reform a fair chance.  

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Pints in Putney: Newscorp, Giles Wilkes and the Hargreaves IP review

update 30/05/2012. Thought I’d better do due diligence and check BIS transparency page   for “BIS special advisers- senior media meetings, July-September 2011”  No declaration for Giles Wilkes.  Maybe Benjamin King and David Fares from News International were wearing IP hats that day and didn’t count as senior media?  

 

Following from my earlier post about the Frederic Michel “- could be dangerous” ,email to Adam Smith just before the publication of the Hargreaves IP Review   here is the thread between Michel and Giles Wilkes, special political adviser to Vince Cable, Secretary of State for Business,Innovation and Skills.  My comments and as(n)ides in italics as usual.

FM6 = Evidence to Leveson Enquiry  24th May Exhibit FM6

http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM6.pdf   (16.9Mb)

Prologue: A pub in Putney- enter Giles ,a sweaty man.

FM6 p 285  Michel to Wilkes

To:Wilkes Giles (MPST MIN) (giles.wilkes@[]

From: Michel, Frederic

Sent: Thur 16/06/2011 10:23:13 AM

Subject: Catch-up

Shall we try to have that pint in Putney soon?

Fred

FM6 p291 Wilkes to Michel

To:Michel, Frederic[fmichel ,@[]

From:Wilkes Giles (MPST MIN)

Sent:Mon 20/06/2011 12:46:06 PM

Subject: RE: Catch-up

We should. Not sure when. Difficult. When I get a moment off in the evening I try to jog. After that, you would not find my company congenial.

But could grab a drink earlier in the evening in Westminster some time?

From: Michel, Frederic [mailto:fmichel

Sent: 16 June 2011 11:23 I

To: Wilkes Giles (MPST MIN)

Subject: Catch-up

Shall we try to have that pint in Putney soon?

Fred

Act1: somewhere in woods of Whitehall between two trees an intriguing  web is spun. But who will be spider and who  fly?

FM6 p293 Michel to Wilkes

To:Wilkes Giles (MPST MIN) (giles.wilkes[]

From:Michel, Frederic

Sent:Wed 22/06/2011 1:06:06 PM

Subject:Hargreaves IP review

Hi

Both Hargreaves and DCMS suggested we come see you to discuss the Hargreaves review,ahead of the publication of the Government’s views.

Could I come see you for 30/45 minutes with some colleagues to go through top-line views in the coming days?

That would be very helpful,

Warm regards

Fred

Note: “Hargreaves” here might not be Professor Ian Hargreaves himself. Michel habitually referred to teams etc as personified by their leader – e.g. the notorious references to “JH” in the Adam Smith/Michel , Leveson Inquiry, emails

FM6 p294 Wilkes to Michel

To:Michel, Frederic[fmichel~

Cc:SPAD MPST[MPST.SPAD@[]

From:Wilkes Giles (MPST MIN)

Sent:Wed 22/06/2011 1:30:50 PM

Subject:RE: Hargreaves IP review

Sure.

Please arrange with[~]who is cc’ed here

G

From: Michel, Frederic [mailto:fmichel@[

Sent: 22 June 2011 14:06

To: Wilkes Giles (MPST MIN)

Subject; Hargreaves IP review

Importance= High

Hi

Both Hargreaves and DCMS suggested we come see you to discuss the Hargreaves review, ahead of the publication of the Government’s views.

Could I come see you for 30/45 minutes with some colleagues to go through topline

views in the coming days?

That would be very helpful,

Warm regards

Fred

Note: “Cc:SPAD MPST[MPST.SPAD[]” who will arrange meeting. Don’t know who this might be but following BIS briefing note template might give some clues.  

FM6 p297 Michel to Wilkes

To: Wilkes Giles (MPST MIN)’[]

Cc:SPAD MPST[MPST.SPAD[]

From:Michel, Frederic

Sent:Wed 22/06/2011 1:32:57 PM

Subject:RE: Hargreaves IP review

Great, Thanks.

Philippa will liaise with~

Fred.

Act 2: Our players meet, but to what end- plot or fair treaty?

FM6 p339 Michel to Wilkes

To:’Wilkes Giles (MPST MIN)[]

Cc:Philippa[], King, Benjamin[]

From:Michel, Frederic

Sent:Sun 03/07/2011 6:45:58 PM

Subject: Our meeting tomorrow

Giles,

Hope all is well.

Unfortunately I can’t make the meeting tomorrow morning but my colleagues from News International [Benjamin King] and from our US team [ David Fares] will pop in to update you on our views re-Hargreaves review ahead of the Government’s response at the end of the month, and also discuss the next steps.

Benjamin has been leading our submission and David works with the studios and other US business units.

Let’s make sure we can get together soon.

Philippa will liaise with ~ tomorrow and fix a breakfast or evening in Putney.

Warm regards

Frederic.

Frederic Michel

Director, Public Affairs, Europe

News Corporation

Act 3. Fond adieus. Plot or fair treaty, who shall ever know?

FM6 p342 Wilkes to Michel

To: Michel, Frederic

Cc: Philippa [],King, Benjamin[]

From: Wilkes Giles (MPST MIN)

Sent: Mon 0410712011 1:28:21 PM

Subject: RE: Our meeting tomorrow

It was a very useful meeting, so thanks to all concerned. This is a complex area and every conversation helps to fill in blanks

G

From: Michel, Frederic

Sent: 03 July 2011 19:g6

To: Wilkes Giles (MPST MIN)

Cc: Philippa; King, Benjamin

Subject: Our meeting tomorrow

Importance: High

Giles,

Hope all is well.

Unfortunately I can’t make the meeting tomonow morning but my colleagues from News International [ Benjamin King] and from our US team [ David Fares] will pop in

to update you on our views re-Hargreaves review ahead of the Government’s response at the end of the month, and also discuss -the next steps.

Benjamin has been leading our submission and David works with the studios and other US business units.

Let’s make sure we can get together soon.

Philippa will liaise with ~ tomorrow and fix a breakfast or evening in Putney.

Warm regards

Frederic.

Frederic Michel

Director, Public Affairs, Europe

News Corporation

 

FM6 p354 From David Fares to Giles Wilkes, Benjamin King

To: King, Benjamin[] Giles Wilkes[]

Cc: Michel, Frederic[]

From: Fares, David

Sent: Tue 05/07/2011 5:13:09 AM

Subject: RE: News Corp meeting

Giles,

It was a pleasure meeting you, thanks indeed for your time.

Best regards,

David

From: King, Benjamin

Sent: Monday, July 04, 2011 12:50 PM

To: Giles Wilkes

Cc: Michel, Frederic ( NewsInt ); Fares, David

Subject: News Corp meeting

Dear Giles

Thanks again for taking the time to meet with us today – it was much appreciated. Attached a brief summary of our thoughts on Ian Hargreaves’ proposals, which may be of interest. If there’s way we can assist ahead of or around publication of the Government response, do get in touch.

Best wishes

Benjamin

Benjamin King

Public Affairs Manager

News International Limited

3 Thomas More Square

London E98 IEX

The end.

One question. Were other parties with an interest in the Hargreaves Review, e.g. Open Rights Group etc, also popping in to see  Giles Wilkes and ??  before the government response to the Review was published at the beginning of August 2011.  Let’s hope so, otherwise it might appear that News Corp had, as Monica Horten wrote,  “privileged access to British policy making on intellectual property

 

For my next post I’ll continue with News Corp interest in the government response to Hargreaves and the Adam Smith/Michel emails. As a taster:

To:adamsmith [] From:Michel, Frederic Sent:Fri 01/07/2011 10:47:39 AM Subject:Are you sending me draft of Hargreaves response?

To:Michel, Frederic From:Adam Smith Sent:Fri 01/07/2011 10:49:17 AM Subject:Re: Are you sending me draft of Hargreaves response?

not yet. we’re trying to change it so much it won’t be worth it

Further reading: 

Background for  Giles Wilkes can be found here.  More information about other  links between the Lib Dems and Michel can be found at

1) Liberal Democrats’ ties with Murdoch aides revealed to Leveson inquiry

2) Clegg adviser helped Murdoch and Michel seek easy win

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Louise, Doomdark and the Lord of Fey.

Seems that MP Louise Mensch is a fan of the old fantasy quest game Lords of Midnight  developed for the ZX Spectrum -yep the string drive special of yore.

Nowt wrong with that, after a hard day’s politicking I’m sure we would all want to escape somewhere where with a press of a button we could defeat our foes.

But what I want to know, and maybe I’m being a bit Freudian here, is -who is this “Lord of Fey who is hard to keep alive”.  Now in the real world of the ongoing Leveson enquiry Louise is a great supporter of Jeremy (I behaved impeccably) Hunt.  Has been a supporter for some time.  Last year I posted about how she and Hunt seemed to be  tangoing DCMS into taking over the Hargreaves IP Review.  

 Wouldn’t be on another fantasy quest would she?

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Uh Oh: Rupert Bear’s sticky paws all over Hargreaves

Whilst the spotlight in Leveson has been on Hunt playing Hamlet “to BSkyB or not to BSkyB” in the shadows are other plots and players.

Going to start with this one- there’s more to come.

FM6 = Evidence to Leveson Enquiry  24th May Exhibit FM6

http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM6.pdf   (16.9Mb)

Fred Michel to Adam Smith page 29 FM6

To:Adam Smith

From: Michel, Frederic

Sent: Tue 17/05/2011 11:10:05 AM

Apparently Hargreaves has just let slip that review will also recommend transposing all the exceptions in the 2001 directive into UK law, and is proposing a vague exception around “adaptability for new technologies” – could be dangerous. We will need to read the embargoed copy closely. I hope you haven’t been leaking selectively to mislead industry… Can we expect a copy shortly?

Fred

Frederic Michel

Director, Public Affairs, Europe

News Corporation

 

reply Adam Smith to Fred Michel p30 FM6

To: Michel, Frederic

From: Adam Smith

Sent: Tue 17/05/2011 11:28:19 AM

Subject: Re:

Calm down! Not selective at all. ! heard him tell the meeting about eu exceptions (parody,format shifting, library archiving) and about need for flexibility in terms of technology.

Remember govt isn’t accepting it all lock stock and barrel.

Not sure when I can send it. People getting twitchy again.

On 17 May 2011, at 12:10, “Michel, Frederic”

wrote:

Apparently Hargreaves has just let slip that review will also recommend transposing all the exceptions in the 2001 directive into UK law, and is proposing a vague exception around “adaptability for new technologies” – could be dangerous. We will need to read the embargoed copy closely. I hope you haven’t been leaking selectively to mislead industry… Can we expect a copy shortly?

Fred

Frederic Michel

Director, Public Affairs, Europe

News Corporation

The AS line “Remember govt isn’t accepting it all lock stock and barrel.” makes me smile. By August that is pretty much what they had done. Or maybe I should rephrase that to “had to do”.

Coming soon: “pint in Putney” Giles Wilkes, SPAD to Vince Cable, and the 04 July Meeting between Giles and ??  and News Corp people Benjamin King and David Fares “to discuss the Hargreaves review, ahead of the publication of the Government’s views.” 

 (Fred had to cry off- probably too busy weaving webs of intrigue)  

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Legal Advice on Fair Use to Hargreaves Review : FOI enquiry

Way back last year when the Hargreaves Review was published I noticed  a little footnote that Prof. Lionel Bently had provided an analysis to the review on “fair use”. No further info given. That set a  two part FOI request in motion.  Part one was for Prof Bently’s analysis – which eventually did get published. The other part of my request was for the legal advice provided to the Review by “government lawyers” – and that dear reader was another story.. Let’s pick it up from the point of my request to the Information Commisioners Office.

19th January 2012 request to ICO for review of IPO decision

Dear Sirs

Please find attached completed 2011 FOIER Complaints form. Also attached file ICO review docs.doc which contains the following:

 1. Copy of information request 05 June 2011

 2. Copy of initial response from IPO and refusal notice 4 July 2011

 3. Copy of request for internal review 30 August 2011

 4. Copy of the IPO internal review decision 23 September 2011

 The request for review concerns the decision of the Intellectual Property Office to withhold information about legal advice given by UK government lawyers to the Hargreaves Review of Intellectual Property. This information was withheld under FOI exemption 42(1).

 I appreciate the importance of Legal Professional Privilege to the efficient working of government. However, after time for reflection, I still feel that in this case the public interest remains best served by the decision of the ECJ in Sweden and Turco V Council and Others cited in the ICO Commisioner’s decision FS50402010 of 20 September 2011

 “In that respect, it is for the Council to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, as noted in recital 2 of the preamble to Regulation No 1049/2001, from increased openness, in that this enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.”

 Yours faithfully

 Peter Carroll

info forwarded to ICO in file  ICO review docs.doc

1. Copy of information request 05 June 2011

 —–Original Message—–

From: pete carroll [mailto:pete.carroll@scibella.com]

Sent: 05 June 2011 18:34

To: foi

Subject: Hargreaves IP review final report – legal analysis provided to panel

Dear Sirs,

 In May 2011 the IPO published the following report “Digital Opportunity – A review of Intellectual Property and Growth An Independent Report by Professor Ian Hargreaves May 2011”

 In section 5.18  it states

 “Evidence considered by the Review on the legal arguments about the feasibility of introducing Fair Use into the EU legal framework and so into the UK is violently diverse. It ranges from those who argue that it could, in effect, be achieved within the terms of current EU law,viii to those who see this as definitively impossible.

 The footnote, viii refers to “viii Analysis provided to the Review by Professor Lionel Bently”

 In the following section 5.19 it states:

 “The advice given to the Review by UK Government lawyers is that significant difficulties would arise in any attempt to transpose US style Fair Use into European law.”

 Could you please provide me with any documents, correspondence or e-mails, transcripts of conversations, minutes of meetings,  relating to:

 a)       The “analysis provided to the Review by Professor Lionel Bently” referred to in footnote viii of section 5.18 of the report

 b)       The ” advice given to the Review by UK Government lawyers”  referred to in section 5.19 of the report

 I realise that it might be felt that this information falls within the exemptions set out in section 35 of the Freedom of Information Act 2000-

 35 (1) (a) the formulation or development of government policy

 35 (1) (c) the provision of advice by any of the Law Officers or any request for the provision of such advice

 However; I would point out that these exemptions in section 35 of the FOI 2000 are subject to the public-interest test.  I would argue that there is a strong public interest in knowing the information, in terms of analysis and advice, provided to the Hargreaves Review about a core issue, fair-use and how it could, or could not, operate within the  UK/EU legal framework.

 This issue was certainly widely covered in the media, where it was reported, repeatedly, that it was not possible to introduce fair use in the UK because it did not “fit” with overriding EU legislation. 

The Hargreaves report itself states:

 “Recommendation 1. Evidence. Government should ensure that development of the IP System is driven as far as possible by objective evidence” 

  The release of the information I am requesting would demonstrate to the public that an evidence-based IP system is, in fact, the government’s intention. 

 Peter Carroll

05 June 2011

2. Copy of initial response from IPO and refusal notice 4 July 2011

 From: foi [mailto:foi@ipo.gov.uk]

Sent : Monday 4 July 2011 12.59

To: ‘pete carroll’

Cc: foi

Subject: RE: Hargreaves IP review final report – legal analysis provided to panel

 Dear Mr Carroll

Thank you for your email dated 6 June 2011 requesting a copy of the analysis provided to the Hargreaves Review by Professor Lionel Bently and the advice given to the Review by UK Government lawyers referred to in section 5.19 of the report and any related documents etc.

I can confirm that the Intellectual Property Office (IPO) holds the information you are seeking. With regard to Professor Bently’s analysis, we are withholding that information at this time since we consider that the exemption under section 22(1) of the Freedom of Information Act applies to it, because it is information intended for future publication.

Section 22 is a qualified exemption so the IPO is required to balance the public interest in releasing or withholding the information.  

The implementation work in the wake of the Hargreaves report is the immediate priority of IPO officials tasked with this work, commanding their full attention and resources.  As the IPO intends to publish the analysis you seek on its website at around the end of July, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing it at this time.

 Having considered the public interest, the IPO’s decision is therefore to withhold until formal publication.

 With respect to the legal advice, we are withholding that information and related internal discussion since we consider that the exemption under section 42(1) applies to it because it is information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. 

In deciding not to supply this information, we have balanced any public interest there may be in the release of the particular information against the public interest in maintaining and applying legal professional privilege and in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.  Given the very substantial public interest in maintaining the confidentiality of legal advice, the argument in favour of withholding this information outweighs any public interest in disclosure in this circumstance.

 We appreciate that this response may be disappointing to you.  If you are unhappy with the way in which your request for information has been handled you may seek an internal review within two months of the date of this letter. Reviews will usually be carried out within twenty working days but if at the end of that time we are unable to respond, we will write to you explaining the reasons and giving you a new date. Such a request should be sent to the address below:

 

Chief Executive

Intellectual Property Office

PO Box 49

Cardiff Road

Newport

South Wales

NP10 8YU

 

or email box49@ipo.gov.uk

 

If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

 

Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire,

SK9 5AF.

 

Telephone: 0303 123 1113

Website: http://www.ico.gov.uk

 

There is no charge for making an appeal.

 

Yours sincerely

<redacted>

Records officer

Intellectual Property Office

Tel: <redacted>

 3. Copy of request for internal review 30 August 2011

 

From: pete carroll [pete.carroll@scibella.com]

Sent: Tuesday 30 August 2011 11.04

To: ‘box49@ipo.gov.uk’

Subject: R: Request for internal review of LPP decision

 Dear Sirs,

 Thank you for your email of 4 July appended below.

 My FOI request was in two parts

 a) Analysis provided by Professor Lionel Bently to Hargreaves Review

b) Advice given to the Review by UK Government Lawyers

 

Professor Bently’s analysis has now been published, as promised, as a submission to the Review:  http://www.ipo.gov.uk/ipreview-c4e-sub-bently.pdf

 Professor Bently & I are both somewhat surprised that his submission was not published, at the time, along with the others. However, I am now satisfied that this part of my request has been dealt with fully. 

 Regarding the second part of my request, advice given to the Review by UK government lawyers, I have given this much thought and tried to inform myself as best as possible about the scope of legal professional privilege (LPP) and the application of the exemption available under section 42(1) of the FOI act 2000. I appreciate that:

 ” LPP is intended to provide confidentiality between professional legal advisers and clients to ensure openness between them and safeguard access to fully informed, realistic and frank legal advice, including potential weaknesses and counter-arguments”

 Source: ICO LPP guidance  http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/legal_professional_privilege.pdf

And also that if the exemption for LPP is engaged:

 “The Tribunal recognised this in Bellamy v Information Commissioner (EA/2005/0023; 4 April 2006), where it said: “there is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest”.

 However, I still believe that in the case of my request regarding the advice given to the Hargreaves Review that there is indeed a powerful justification for, at least, some disclosure of fuller reasoning on why UK Government lawyers advised the Review  “that significant difficulties would arise in any attempt to transpose US style Fair Use into European law.” Therefore, I must ask for an internal review of your decision to withhold all information about the advice given to the Hargreaves Review by UK government lawyers as you consider this information is covered by exemption 42(1) of the FOI act 2000.

 I trust that it would be helpful to your conduct of the internal review if I set out some of my thinking.

 1. Is section 42(1) engaged? Yes.

 2. Which category of LPP is involved Litigation Privilege or Legal Advice Privilege? Legal Advice Privilege (LAP).

 3. Within the legal advice given to the Review was there factual information likely to be in the public domain e.g. reference to, or provision of copies of, relevant UK & EU legislation, published opinions etc? This is a matter for the internal review to decide on. I believe that any such factual information would not be covered by LAP and could be disclosed, although obviously the advice pertaining to such information would be subject to LAP and, subject to the public interest test, could be withheld or redacted.

4. Who was the client to whom the legal advice was supplied- the Review panel members, the panel members and supporting officers within the IPO, the whole IPO? This is a matter for the internal review to decide upon.

 5. Has any waiver of LAP occurred by communication from the client to third parties? Again,this is a matter for the internal review to decide upon. I am aware that under LAP partial disclosure of information does not necessarily mean that privilege is lost but I also note from the ICO LPP guidance that “the partial disclosure may be relevant when considering the public interest in disclosure.”

6. Public interest test. 

I feel that there is a novel factor in play here which is the Government response to the Hargreaves Review recommendation that “evidence should drive policy”

 “To deal with the second concern, the Government will in future give limited weight in IP policymaking to evidence that is not sufficiently open and transparent in its approach and methodology, and we will make it clear where we are taking this view. IPO will set out guidance in Autumn 2011 on what constitutes open and transparent evidence, in line with professional practice.”

Source: http://www.ipo.gov.uk/ipresponse-full.pdf   p3

I realise that the evidence being considered in this part of the response is primarily economic but in the area of Intellectual Property, legal and economic evidence is inextricably interlinked- a point addressed in supporting document J to the Hargreaves Review

Dnes A, 2011 A Law and Economics Analysis of Fair Use Differences Comparing the US and UK, Report for the Review of IP and Growth

 http://www.ipo.gov.uk/ipreview-doc-j.pdf

 I think this presents the IPO with a dilemma. With the publication of Professor Bently’s analysis we now have on one side a open and transparent body of evidence setting out the “flexibilities available to UK law”. On the other we have advice very probably of a quasi-evidential nature, and of equal quality, from the UK government lawyers but because of the application of legal advice privilege it can be, at best, only partially disclosed. In the light of the Government response above, to which body of evidence should most weight to be given in policy making?

Another problem could arise in the coming months with the efficient drafting of detailed proposals for new legislation. The government response to Hargreaves recommendations on copyright exceptions is:

“the Government agrees with the Review’s central thesis that the widest possible exceptions to copyright within the existing EU framework are likely to be beneficial to the UK, subject to three important factors:..”

 Drafting these exceptions may, or may not, involve reference to issues covered by the legal advice given to the Review. Can this advice be made available to those involved with drafting proposed legislation without a waiver of LPP? This point returns to who was the client for whom the advice was prepared and will they be the same people who will be responsible for drafting legislation?

 Also, once drafted and published for consultation, if the legal advice to the Review has been relied on, to what extent can the reasoning behind the proposals be communicated to the public in line with the Government desire for evidence based development of a future IP legislative framework?

I can only say that I think the public interest is best served by the fullest disclosure possible of the legal advice to the Review.

Peter Carroll

Date: 30 August 2011

4. Copy of the IPO internal review decision 23 September 2011

 From: <redacted>

Sent: Friday 23 September 2011 15.31

To: ‘pete.carroll@scibella.com’

Subject: FOI Review

 Attachment : Letter to Mr P Carroll.docx

 Dear Mr Carroll,

 Please see the attached letter in response to your FOI review.

 Kind regards,

 <redacted>

 (Attached letter…..)

 From the Director of Business Support,

 By e-mail,

 23 September 2011

 Dear Mr P Carroll,

 Re- FOI Internal Review.

 I refer you to your e-mail dated 30th August 2011, in which you requested an internal review of the handling of your FOI request dated 5th  June 2011  for the Legal analysis provided to panel Hargreaves Review.

 A thorough review of the handling of your request and the decision to withhold information under Section 42(1) of the Act has been carried out.  The arguments set out in your letter have been considered during the review

 Section 42(1) explains that information will be exempt from disclosure, if the information requested is protected by legal professional privilege. 

 In response to the questions raised in your review request I confirm that the information requested is covered by legal advice privilege and the client for whom the advice was prepared is the IPO.

 It is my assessment that there substantial public interest in maintaining the confidentiality of this legal advice. The argument in favour of withholding this information outweighs any public interest in disclosure in this circumstance.

 The conclusion of the review is that the original decision to withhold the information under Section 42(1) of the Act was and remains appropriate.

 I that realise that the outcome of this review will disappoint you. If you wish to pursue this any further, I suggest that you contact the Information Commissioner at:

The Information Commissioner’s Office,  

Wycliffe House,  

Water Lane,  

Wilmslow,  

Cheshire  SK9 5AF.

Yours sincerely,

<redacted>.

Business Support Director

 which brings us back to the reply from the ICO  

5. 27 March 2012 ICO decision 

By email:  

27 March 2012

 Case reference number FS50431599

Dear Mr Carroll,

 Freedom of Information Act 2000 (FOIA)

Intellectual Property Office (IPO)

 I am writing in relation to your freedom of information complaint against the IPO. The Commissioner has now considered your complaint in detail and his findings are set out below.

 Background

 You made the following request for information to the IPO on 5 June 2011:

 

‘Could you please provide me with any documents, correspondence or e-mails, transcripts of conversations, minutes of meetings, relating to:

 

 a) The “analysis provided to the Review by Professor Lionel Bently” referred to in footnote viii of section 5.18 of the report

 

b) The “advice given to the Review by UK Government lawyers”  referred to in section 5.19 of the report.’

 The IPO responded on 4 July 2011 refusing to provide the information within the scope of part 1 of your request under section 22 of the FOIA (information intended for future publication). It refused to provide the information within the scope of part 2 of your request under section 42(1) of the FOIA (legal professional privilege).

 You requested a review of the IPO’s refusal to provide the information it holds within the scope of part 2 of your request on 30 August 2011. On 23 September 2011 the IPO responded upholding its original decision.

 Your complaint

In your complaint you argued that the public interest favours disclosure of the information the IPO has withheld under section 42(1) of the FOIA.

 In the course of this investigation the Commissioner has taken into account all of the arguments you have made and the arguments made by the IPO, the content of the withheld information and wider documentation relevant to the request including the Hargreaves Review Report[1] and Professor Bently’s evidence.

 Section 42 – The legal professional privilege exemption

Section 42(1) provides an exemption for information in respect of which a claim to legal professional privilege (LPP) could be maintained. This exemption is subject to a public interest test.

 There are two types of LPP; advice privilege and litigation privilege. For advice privilege to apply, the information must be confidential, made between a client and a professional legal adviser acting in their professional capacity, and made for the sole or dominant purpose of obtaining legal advice.

 The Commissioner considers that the advice provided to the IPO by government lawyers was for the sole purpose of obtaining legal advice on the future direction of copyright legislation for the purposes of the Hargreaves Review. Consequently, the Commissioner considers that the information attracts legal advice privilege and that, at the time of the request, the IPO had not waived its privilege. Therefore, the exemption under section 42(1) of the FOIA is engaged and the Commissioner has gone on to consider the public interest test.

Public interest factors in favour of maintaining the exemption

 

The IPO has argued that there is a very substantial public interest in favour of maintaining the confidentiality of legal advice in general and in the specific circumstances of this case.

The Commissioner accepts that legal professional privilege is a well established and accepted convention that protects confidentiality in the lawyer/client relationship, and in the advice sought from and given by legal professionals. He considers that the rationale behind the concept of ensuring frankness between lawyer and client serves the wider administration of justice and there is an inbuilt public interest in the maintenance of LPP.

 The Information Tribunal recognised this in the case of Bellamy v Information Commissioner (EA/2005/0023; 4 April 2006) stating:

 

‘there is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest.’

 The Commissioner also considers that at the time of the request the legal advice was recent and live as the government was actively considering its response to the Hargreaves Review. You made your request in June 2011 and the government’s response to the Hargreaves Review was published in August 2011. This adds additional weight to the inherent public interest in maintaining the exemption.

 Public interest factors in favour of disclosure

 You have argued that there is a novel factor to consider in this case as the government’s response to the Hargreaves Review accepts the recommendation that evidence should drive policy and that this evidence should be open and transparent. You quoted the following:

 ‘To deal with the second concern, the Government will in future give limited weight in IP policy-making to evidence that is not sufficiently open and transparent in its approach and methodology, and we will make it clear where we are taking this view. IPO will set out guidance in Autumn 2011 on what constitutes open and transparent evidence, in line with professional practice.’[2]

You stated that in the area of Intellectual Property legal and economic evidence is inextricably linked and provided a link to a paper that supports this position.

 The Commissioner notes that the IPO has now issued its guidance on what constitutes open and transparent evidence.[3] It is clear from this guidance that the IPO considers that transparent and open evidence used to inform public policy should be clear, verifiable and able to be peer-reviewed. However, he considers that there is an important distinction between evidence used to support public policy and legal advice. He does not consider that the government’s response to the Hargreaves Review or the IPO’s guidance can be read to suggest that legal advice used in the development of policy should be published.

However, the Commissioner agrees with your argument that there is a public interest in disclosure of the legal advice provided to the IPO on which the following statement was based:

‘The advice given to the Review by UK Government lawyers is that significant difficulties would arise in any attempt to transpose US style Fair Use into European law.’[4]

If the advice on which this statement was based were to be published this would improve transparency and allow the public to enter into more informed debate about the future of copyright legislation. This is especially the case as at the time of the request the government had yet to issue its response to the Hargreaves Review.

Notwithstanding the above, the Commissioner notes that there was an opportunity for individuals and organisations to provide evidence to the Hargreaves Review and that a number of respondents took this opportunity to comment upon the viability of fair use, or similar provisions, in the UK. As recognised in the Hargreaves report:

‘Evidence considered by the Review on the legal arguments about the feasibility of introducing Fair Use into the EU legal framework and so into the UK is violently diverse. It ranges from those who argue that it could, in effect, be achieved within the terms of current EU law,viii to those who see this as definitively impossible.’

For example, the evidence provided by Professor Bently is specifically mentioned in the Hargreaves Report and it is clear that the review considered a range of opinions in relation to the introduction of fair use, or similar provisions, in the UK. The Commissioner considers that had this not been the case this would have increased the value in transparency and furthering public debate. However, in the specific circumstances of this case, the Commissioner has taken into account the fact that there have been a number of opportunities for individuals and organisations to contribute to the debate and provide alternative views to those reached by the Hargreaves Review. He also considers that the outcome of the Hargreaves Review makes clear the overall conclusion that was reached on the basis of all of the evidence provided to it, including the legal advice in question. It stated:

 

‘The Review considered whether the more comprehensive American approach to copyright exceptions, based upon the so called Fair Use defence, would be beneficial in the UK. We concluded that importing Fair Use wholesale was unlikely to be legally feasible in Europe and that the UK could achieve many of its benefits by taking up copyright exceptions already permitted under EU law and arguing for an additional exception, designed to enable EU copyright law to accommodate future technological change where it does not threaten copyright owners.’[5]

 Therefore, he does not consider that there has been an overall lack of transparency in terms of the explanation of the evidence that was considered or the conclusions reached in the Hargreaves Review.

Balance of the Public Interest Test

The Commissioner has considered all of the factors outlined above. He has concluded that the public interest in maintaining the exemption outweighs the public interest in favour of disclosure. The inherent public interest in maintaining LPP in this case is afforded extra weight due to the recent and live nature of the legal advice. Although there is a public interest in transparency and enhancing public debate, in the specific circumstances of this case, the countervailing public interest arguments are not strong enough to equal or outweigh the strong public factors in favour of maintaining the exemption.

Next Steps

 

I appreciate that you may be disappointed with the outcome of your complaint. If you have any queries or would like to discuss this matter please don’t hesitate to contact me on the number below.

If you disagree with the outcome of your complaint and would like to appeal to the Information Tribunal, the Commissioner will need to issue a formal Decision Notice in this case. This is likely to reflect the decision outlined above and would not require the IPO to take any steps. Please inform me if you require a decision notice by 10 April 2012. If I do not hear from you by this date your complaint will be closed.

Finally, I would like to thank you for bringing this matter to the attention of the Commissioner.

Yours sincerely,

 <redacted>

Senior Case Officer

Complaints Resolution

Information Commissioner’s Office


[1] Hargreaves, I., Digital Opportunity – A Review of Intellectual Property and Growth, May 2011,  http://www.ipo.gov.uk/ipreview-finalreport.pdf, p 46.

[2] HM Government, The Government Response to the Hargreaves Review of Intellectual Property and Growth, August 2011, http://www.bis.gov.uk/assets/biscore/innovation/docs/g/11-1199-government-response-to-hargreaves-review, p 3.

[3] Intellectual Property Office, Good Evidence for Policy, http://www.ipo.gov.uk/consult-2011-copyright-evidence.pdf.

[4] Hargreaves, I., Digital Opportunity – A Review of Intellectual Property and Growth, May 2011,  http://www.ipo.gov.uk/ipreview-finalreport.pdf, p 46.

[5] Hargreaves, I., Digital Opportunity – A Review of Intellectual Property and Growth, May 2011, http://www.ipo.gov.uk/ipreview-finalreport.pdf, p 5.

6. 10 April  2012 email to ICO

Dear Mr <redacted>

Thank you for your email and attached letter of 27th March communicating to me the Commisioner’s decision. Obviously, I am disappointed that, on the balance of public interest, the LAP of the IPO should be upheld. I was rather hoping that the ECJ judgement on Sweden and Turco V Council and Others ( cited in the ICO Commisioner’s decision FS50402010 of 20 September 2011) might have tipped the balance towards disclosure of “quasi-evidential” legal advice. However, I do not think there would be any purpose in taking my complaint further to the Information Tribunal and therefore we can consider the case closed.

 May I take this opportunity to thank both the ICO and the IPO on the courteous and prompt manner in which this complaint has been handled. I only hope that for both parties that it has not proved a complaint of a vexatious nature but one accepted as intended, a request to clarify where the balance of public interest now lies in an environment of increasing transparency in government policy making in all areas.

 Lastly, I assume that it would now be all right to post the bi-lateral correspondence between myself and the IPO and the ICO covering this case on a blog that I run. I would redact any names (e.g. yourself) to comply with privacy concerns.

Yours sincerely

Peter Carroll

7.  16 April 2012 email back from ICO

Case Reference Number FS50431599

Dear Mr Carroll,

Thank you for your email of 10 April 2012 in relation to your complaint against the Intellectual Property Office.

I certainly do not consider that your complaint was of a vexatious nature and I appreciate the quality of the evidence and supporting documentation that you provided in support of your complaint.

I don’t have any objections to you publishing the correspondence between yourself and the Commissioner in relation to this matter.

This case will now be closed.

Yours sincerely,

 <redacted>

Senior Case Officer

Complaints Resolution

Information Commissioner’s Office

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DDL Centemero. Proposed Italian legislation. More DMCA takedown than one-strike cutting off

There’s recently been a bit of a stir in the twittersphere about a “Ridiculous Italian Copyright Law Proposal”.  

“The Centemero law would essentially make it so that if someone was accused of breaking copyright laws — by anyone, not just the copyright holder — they would be banned from the internet”
http://www.businessinsider.com/italian-copyright-law-proposal-centemero-2011-9?

I live in Italy and do some translation so I thought I’d take a look at the original document.

http://www.camera.it/Camera/view/doc_viewer_full?url=http%3A//www.camera.it/_dati/leg16/lavori/stampati/pdf/16PDL0051750.pdf&back_to=http%3A//www.camera.it/126%3FPDL%3D4549%26leg%3D16%26tab%3D2

Now, I must admit that there is a lot that is ridiculous about Italian politics at present – from bunga bunga to bungled budgets. but I need to clarify that the so called Centemero law is not at all as widely reported – it’s more DMCA take down on steroids.  Before I append a translation let me make it clear, I am not a qualified legal translator – so this translation is for information only and not to be relied on in any legal proceedings etc.. I have added some comments of my own in italics…

OK,  first the heading. English translation in blue text.

CAMERA DEI DEPUTATI N. 4549

PROPOSTA DI LEGGE

D’INIZIATIVA DEI DEPUTATI

Chamber of Deputies No.4549. Draft legislation initiated by deputies

CENTEMERO, PESCANTE, FORMICHELLA, VERSACE,

VIGNALI, BERNARDO, CASTIELLO, DELL’ELCE, DI

CATERINA, FUCCI, GOTTARDO, IANNARILLI, NASTRI,

NICOLUCCI, PILI, PORCU, RAZZI, SCALERA, VELLA

Modifica degli articoli 16 e 17 del decreto legislativo 9

aprile 2003, n. 70, in materia di responsabilità e di

obblighi dei prestatori di servizi della società dell’informazione

e per il contrasto delle violazioni dei diritti di

proprietà industriale operate mediante la rete internet

Amendment of Articles 16 and 17 of Legislative Decree 9 April 2003, No 70, liability and obligations of providers of information society services and the thwarting of the infringement of rights in industrial property carried out by means of the Internet

Presented July 26, 2011

Legislative Decree 9 April 2003, No 70 is the transposition into Italian law of the EU commerce directive  2000/31/CE. Full text available here:

http://www.interlex.it/testi/dlg0370.htm

I haven’t translated the full proposal for now but have done the article amendments in full. Before those though let me just give the start of the proposal:

“ONOREVOLI COLLEGHI ! — La contraffazione a mezzo della rete internet – così come la vendita attraverso questi canali telematici di prodotti la cui commercializzazione è riservata a canali regolamentati (come i farmaci) – con conseguenze pregiudizievoli di estrema gravità sia per i titolari dei diritti di proprietà industriale violati, sia per la sicurezza e per la stessa salute dei cittadini (che anche la contraffazione mette spesso in pericolo, poiché i falsi sono spesso anche pericolosi o sono realizzati in modo non conforme alle prescrizioni sulla sicurezza dei prodotti) sta divenendo un problema sempre più grave, che raggiunge proporzioni di giorno in giorno più allarmanti.”

Honorable Colleagues – Counterfeiting via the Internet is becoming an increasingly serious problem that becomes more alarming day by day.The sale through remote channels of products whose marketing is reserved for regulated channels (such as pharmaceuticals) has prejudicial and extremely serious consequences for both the holders of the infringed industrial property rights ,and for the safety and health of citizens (in that counterfeiting often creates a risk, because the fakes are often dangerous or are made in a manner inconsistent with the requirements of product safety)

 Proposed amendments:

ART. 1.

1. L’articolo 16 del decreto legislativo 9 aprile 2003, n. 70, è sostituito dal seguente:

1. Article 16 of Legislative Decree 9 April 2003, No 70, is replaced by the following:

« ART. 16. – (Responsabilità nell’attività di memorizzazione di informazioni – hosting).

‘ART. 16. – (Responsibility for the activity of information storage – hosting).

– 1. Nella prestazione di un serviziodella società dell’informazione, consistente nella memorizzazione di informazioni fornite da un destinatario del servizio, il prestatore non è responsabile delle informazioni memorizzate a richiesta di un destinatario del servizio, a condizione che detto prestatore:

1. In the provision of a service by an information service provider which consists in the storage of information provided by a recipient of the service, the provider is not responsible for the information stored at the request of a recipient of the service, provided that the said provider:

a) non sia effettivamente a conoscenza del fatto che l’attività o l’informazione è illecita e, per quanto attiene ad azioni risarcitorie, non sia al corrente di fatti o di circostanze che rendono manifesta l’illiceità dell’attività o dell’informazione, avvalendosi a tal fine di tutte le informazioni di cui disponga, incluse quelle che gli sono state fornite dai titolari dei diritti violati dall’attività o dall’informazione, anche in relazione ad attività o a informazioni illecite precedentemente memorizzate dal prestatore a richiesta dello stesso o di altri destinatari del servizio;

a) is not actually aware of the fact that the activity or information is unlawful and, in relation to claims for damages, is not aware of facts or circumstances that make manifest the unlawful activity or information, using for this purpose, all information available to it, including that provided by the owners of rights infringed by the activity or by the information, also taking into account illegal activity or information previously stored by the provider at the request of the same or other recipients of the service;

b) non appena a conoscenza di tali fatti, su comunicazione delle autorità competenti o di qualunque soggetto interessato, agisca immediatamente per rimuovere le informazioni o per disabilitarne l’accesso.

b)Acts immediately when made aware of such facts by competent authorities or any affected party, to remove the information or to disable access to it.

“qualunque soggetto interessato” is probably key to the misunderstanding  that “anyone” could strike out infringing material. In Italian “interessato” has the sense of affected by- having a definable interest concerning- rather like the distinction in the UK between the “public interest” and the “interest of the public in”

2. Le disposizioni di cui al comma 1 non si applicano se il destinatario del servizio agisce sotto l’autorità o il controllo del prestatore.

2. The provisions referred to in paragraph 1 do not apply if the recipient ofservice is acting under the authority or control of the provider.

3. L’autorità giudiziaria o quella amministrativa competente può esigere, anche in via d’urgenza, che il prestatore, nell’esercizio delle attività di cui al comma 1, impedisca o ponga fine alle violazioni commesse ».

3. The judicial or the administrative authority may require that, in a matter of urgency, that the service provider, carrying out activities referred to in paragraph 1, terminate or prevent committed infringements. “

ART. 2.

1. L’articolo 17 del decreto legislativo 9 aprile 2003, n. 70, è sostituito dal seguente:

1. Article 17 of Legislative Decree 9 April 2003, No 70, is replaced by the following:

« ART. 17. – (Assenza dell’obbligo generale di sorveglianza). –

‘ART. 17. – (No general obligation for surveillance).

1. Nella prestazione dei servizi di cui agli articoli 14, 15 e 16, il prestatore non è assoggettato ad un obbligo generale di sorveglianza sulle informazioni che trasmette o memorizza, né ad un obbligo generale di ricercare attivamente fatti o circostanze che indichino la presenza di attività illecite.

1. In providing services referred to in Articles 14, 15 and 16, the provider is not subject to a general obligation to monitor the information that it transmits or stores, or to a general obligation actively to seek facts or circumstances indicating the presence of illegal activities.

2. Fatte salve le disposizioni di cui agli articoli 14, 15 e 16, il prestatore è comunque tenuto:

2.Subject to the provisions of Articles 14, 15 and 16, the provider is still required:

a) ad informare senza indugio l’autorità giudiziaria o quella amministrativa avente funzioni di vigilanza, qualora sia a conoscenza di presunte attività o informazioni illecite riguardanti un suo destinatario del servizio della società dell’informazione;

a) to inform without delay the judicial authority or the administrative authority with supervisory functions , any knowledge of alleged illegal activities or information regarding a recipient of the service of the information service provider

b) a fornire senza indugio, a richiesta delle autorità competenti, le informazioni in suo possesso che consentano l’identificazione del destinatario dei suoi servizi con cui ha accordi di memorizzazione dei dati, al fine di individuare e di prevenire attività illecite.

b) to promptly provide, at the request of competent authorities, information in its possession which enables the identification of the recipient of its services with which it has data storage agreements, in order to detect and prevent illegal activities.

3. Il prestatore è civilmente responsabile del contenuto di tali servizi nel caso in cui, richiesto dall’autorità giudiziaria o amministrativa avente funzioni di vigilanza, non ha agito prontamente per impedire l’accesso a detto contenuto, ovvero se, avendo avuto conoscenza del carattere illecito o pregiudizievole per un terzo del contenuto di un servizio al quale assicura l’accesso, non ha provveduto ad informarne l’autorità competente.

3.The provider has a civil responsibility for the content of such services if where required by a judicial authority or by an administrative authority with supervisory functions, it has not acted promptly to prevent access to that content, to be more precise, if knowing that one third of the content of a service to which it ensures access is of an illegal or harmful character it has failed to inform the competent authority.

4. In ogni caso le esenzioni e le deroghe in materia di responsabilità previste dal presente decreto non si applicano:

4. In any case, the exemptions and exceptions to liability under the this Decree do not apply to:

a) al prestatore che deliberatamente collabori con un destinatario del suo servizio al fine di commettere atti illeciti;

a) A provider who deliberately collaborates with a recipient of its service to commit unlawful acts;

b) al prestatore che metta a disposizione del destinatario dei suoi servizi oggetto del presente decreto, o comunque fornisca o presti a suo favore, anche strumenti o servizi ulteriori, in particolare di carattere organizzativo o promozionale, ovvero adotti modalità di presentazione delle informazioni non necessarie ai fini dell’espletamento dei servizi oggetto del presente decreto, che siano idonei ad agevolare o a promuovere la messa in commercio di prodotti o di servizi ad opera del destinatario del servizio;

b)A provider who makes available to a recipient of its services covered by this decree, or otherwise supplies or gives assistance for their benefit, additional tools or services, in particular of a organizational or promotional character or adopts display methods not required for carrying out services covered by this decree, that are suitable for facilitating or promoting the marketing of products or services by the recipient of the service;

c) al prestatore che non abbia adempiuto al dovere di diligenza che è ragionevole attendersi da esso e che è previsto dal diritto al fine di individuare e di prevenire taluni tipi di attività illecite. In particolare, al fine di prevenire la violazione dei diritti di proprietà industriale, di cui al decreto legislativo 10 febbraio 2005, n. 30, tale dovere di diligenza comprende tra l’altro: l’adozione di misure che consentano di agevolare l’identificazione dei destinatari dei suoi servizi che agiscano nel commercio; l’adozione di filtri tecnicamente adeguati che non abilitino l’accesso ad informazioni dirette a promuovere o comunque ad agevolare la messa in commercio di prodotti o di servizi, in quanto tali informazioni contengano parole chiave che, negli usi normali del commercio, indicano abitualmente che i prodotti o i servizi a cui si applicano non sono originali, usate isolatamente o in abbinamento a un marchio o a un segno distintivo di cui il destinatario del servizio non abbia dimostrato di essere il titolare o il licenziatario; l’adozione di filtri tecnicamente adeguati che non abilitino l’accesso ad informazioni dirette a promuovere o comunque ad agevolare la messa in commercio di prodotti o di servizi la cui descrizione corrisponde alla descrizione di prodotti o di servizi contraffattori, che i titolari dei diritti di proprietà industriale ad essi relativi abbiano preventivamente comunicate al prestatore del servizio; l’esercizio di tali filtri anteriormente alla messa on line dell’informazione; la pubblicazione all’interno del sito del prestatore del servizio, in modo chiaro e visibile, di tale regola di esclusione; la sospensione della fruizione dei servizi dei destinatari di tali servizi che pongono in esame violazioni dei diritti di proprietà industriale per evitare che siano commesse nuove violazioni della stessa natura da parte degli stessi soggetti. Al fine di prevenire la violazione delle norme sulla commercializzazione di prodotti o di servizi soggetti a limitazioni legali nella vendita o nella fornitura, tale dovere di diligenza comprende tra l’altro: l’adozione di filtri tecnicamente adeguati che non abilitino l’accesso ad informazioni dirette a promuovere o comunque ad agevolare la messa in commercio di prodotti o di servizi, la cui commercializzazione è riservata a canali di vendita o di fornitura particolari o richiede la prescrizione medica; l’esercizio di tali filtri anteriormente alla messa on line dell’informazione; la pubblicazione all’interno del sito del prestatore del servizio, in modo chiaro e visibile, di tale regola di esclusione.

c) the provider has not complied with the duty of care which it is reasonable to expect from it and that is expected by law in order to identify and prevent certain types of illegal activities. Specifically, pursuant to Legislative Decree 10 February 2005 No 30, in order to prevent the violation of industrial property rights, this duty of care includes inter alia:

the adoption of measures to facilitate the identification of recipients of its services that are acting commercially;

the adoption of filters that are technically capable of not enabling access to information aimed at promoting or otherwise facilitating the marketing of products or services, such as information containing key words, that in normal commercial use, usually indicate that the products or services to which they that apply are not original, used alone or in conjunction with a trade mark or distinctive description to which the service recipient has not proven that they are the owner or the licensee;

the adoption of filters that are technically capable of not enabling access to information aimed at promoting or otherwise facilitating the marketing of products or services whose description matches the description of counterfeit products or services,which holders of industrial property rights relating thereto have previously communicated to the service provider;

the use of these filters before the information is put online, the publicationon the site of the service provider, in a clear and visible way, of the exclusionary rules, the suspension of the use of the services by service recipients that bring into question infringement of industrial property rights in order to avoid new infringements of the same kind being committed by the same parties.

In order to prevent violation of the regulations related to the marketing of goods or services subject to legal restrictions in their sale or supply, such a duty of care includes inter alia:

the adoption of filters that are technically capable of not enabling access to information aimed at promoting or otherwise facilitating the marketing of products or services whose marketing is reserved to particular sales or supply channels or requires a medical prescription;

the use of these filters before the information is put online, the publication on the site of the service provider, in a clear and visible way, of the exclusionary rules,

5. Le esenzioni e le deroghe in materia di responsabilità previste dal presente decreto lasciano impregiudicata la possibilità di azioni inibitorie di altro tipo e, in particolare, delle azioni inibitorie previste dal codice della proprietà industriale, di cui al decreto legislativo 10 febbraio 2005, n. 30, e dalla legge 22 aprile 1941, n. 633, che obbligano a porre fine a una violazione di diritti della proprietà industriale o intellettuale o ad impedirla, anche con la rimozione dell’informazione illecita o con la disabilitazione dell’accesso alla medesima.

5. The exemptions and exceptions on responsibilities under this decree do not affect the possibility of injunctions of different kinds and, in particular, injunctions under the Code of Industrial Property, Legislative Decree 10 February 2005 No 30, and of the legislation April 22, 1941, No 633, which seek to end a violation of industrial property rights or intellectual property rights or to prevent it, by the removal of illegal information or by the disabling of access to it.

decreto legislativo 10 febbraio 2005, n. 30, is the Italian law covering

Diritti di proprietà industriale

Rights of industrial property

1. Ai fini dei presente codice, l’espressione proprietà industriale comprende marchi ed altri segni distintivi, indicazioni geografiche, denominazioni di origine, disegni e modelli, invenzioni, modelli di utilità, topografie dei prodotti a semiconduttori, informazioni aziendali riservate e nuove varietà vegetali.

For the purposes of this present legislation the expression industrial property comprises trade marks and other distinctive identification, geographical indicators, denomination of origin, drawings and models, inventions, utility models, topography of semiconductor products, reserved company information and new vegetable varieties

 

Posted in Intellectual Property, Italy | 13 Comments

Hargreaves Review of Intellectual Property:Submission to BIS Committee

update 27-05-2012 : latest link to published version on BIS select committee site now seems to be : http://www.publications.parliament.uk/pa/cm201012/cmselect/cmbis/writev/1498/m16.htm

Hargreaves Review of Intellectual Property

Submission to Business, Innovation and Skills Committee

From: Peter Carroll (contact details supplied under separate cover)

Date: 05 September 2011

I am submitting this in a personal capacity.  I am an ex-IT manager,now retired. Since retirement I  been working on a project (Scibella.com) to set up a Current Research Information System (CRIS) covering scientific technical and medical (STM) public sector research in UK universities and Research Councils. Further background to the Scibella project can be found in my submission [1] to the Hargreaves Review [2].

Summary of submission:

I have structured my submission around the Government response [3] to the Hargreaves Review.

  • Evidence based approach. Should apply to online enforcement of  IP infringement – Digital Economy Act 2010. Should extend to legal evidence and opinion behind draft legislation arising from Hargreaves Review.
  • Digital Copyright Exchange (DCE). Public sector research outputs are not just papers published in scientific journals there is also a lot of information about current  research on university & research council websites. The aim of this website information is to “translate & engage” research for envisaged users. At present re-use of this information is restricted to non commercial private research and study. This creates a “pull” model of information flow. Permission to commercially re-use involves many separate negotiations which inhibits the setting up of innovative firms who could “push” the information out to the widest audience. The same applies to the Open Educational Resource materials being developed by universities for on-line education. There is an important role for the DCE so that these materials can be easily and fairly licensed for commercial re-uses. JISC could also play an important  sector co-ordinating role in getting these materials into the DCE as soon as possible.
  • Exceptions to copyright. Exception for quotations (section 30 of CDPA) needs to be extended to accord with EU Infosoc Directive Article 5.3 (d). Gowers Review 2006 recommendation 11 transformative use exception (limited, for now, to research) could be introduced into UK legislation. Clear exemption from definition of works covered by copyright for metadata.

1. Evidence based approach

The Government responses states that:

 

1.1 “To deal with the second concern, the Government will in future give limited weight in IP policy-making to evidence that is not sufficiently open and transparent in its approach and methodology, and we will make it clear where we are taking this view. IPO will set out guidance in Autumn 2011 on what constitutes open and transparent evidence, in line with professional practice.” [3 p:3]

 

1.2 To practice what it preaches this evidence based approach must be applied to the cost-benefit analysis of the impact of Government legislation in the area of Intellectual Property. There is little point in revisiting IP legislation that has already been fully implemented. However, where implementation is still under consideration this would  be of value in establishing the appropriate level of public resource to be allocated [see para 1.5 below].  Therefore, I think this approach should be re-applied to the BIS cost benefit analysis carried out  for the Digital Economy Act2010”  [4].  The £200M a year benefit of the act is based on a key assumption:

“Costs to digital product consumers are not monetised since this content is only available illegally; US evidence indicates that were this cost to be monetised it could outweigh the monetised benefits”  [4: p54]

1.3 Good morality but poor economics. As the Hargreaves Review [2 :section 8.15] noted “money not spent on legal copies is not lost to the economy – it may be spent on other purchases. This is of no comfort to the sector suffering losses, but the effects across the economy will not necessarily be problematic.”

1.4  The Hargreaves Review [2:section 8.48]  concluded about online enforcement in the UK

“At this moment, given our state of knowledge, no-one in the UK could make an informed

assessment of what is the right level of resource for online enforcement in the UK. We can only guess and get on with it, using rigorous evaluation to develop the kind of cost-benefit framework described by WIPO”

1.5 The WIPO framework referred to is:

“Turning to policy, it is optimal for governments to devote a level of public spending on

law enforcement, such that the marginal benefit of fighting IPRs violations equals the

marginal cost of enforcement activity. The marginal benefit includes the welfare effects

outlined in Section 3. The marginal cost includes the opportunity cost of not using scarce

fiscal resources to provide other public goods”  [5: para 66]

1.6 Recommendation:

 

To demonstrate the Government’s commitment to evidence based IP policy re-evaluate the cost-benefit analysis for the Digital Economy Act 2010 in line with Hargreaves Review section 8.48

1.7  However, the need for “open and transparent evidence” is not just limited to economic evidence. In the area of Intellectual Property, legal and economic evidence is inextricably interlinked- a point addressed in supporting document J to the Hargreaves Review [6].  The economic framework for IP arising from the Hargreaves Review will be determined by changes made to UK and EU law.

1.8 Whilst in progress the Hargreaves Review was often called by certain sections of the media “The Google Review”- that it was all about the possible introduction of US style “fair use” legislation in the UK.  In the end the Hargreaves Review [2: sections 5.18-5.19] said:

“Evidence considered by the Review on the legal arguments about the feasibility of introducing Fair Use into the EU legal framework and so into the UK is violently diverse. It ranges from those who argue that it could, in effect, be achieved within the terms of current EU law,(viii) to those who see this as definitively impossible…..The advice given to the Review by UK Government lawyers is that significant difficulties would arise in any attempt to transpose US style Fair Use into European law. It is against this background that the Review has stuck to its Terms of Reference and sought to isolate the particular benefits for economic growth that Fair Use exceptions provide in the US, with a view to understanding how these benefits can be most expeditiously obtained in the UK…….viii Analysis provided to the Review by Professor Lionel Bently”

1.9  I was intrigued by footnote viii and by the “advice given to the Review by UK government lawyers”. So, I submitted a FOI request to the IPO asking for a release of Professor Bently’s analysis and the legal advice to the Review.

1.10  Professor Bently is the Director of the Centre for Intellectual Property and Information Law at the University of Cambridge and a eminent barrister and his  analysis “Exploring the Flexibilities Available to UK Law”  has now been published in full by the IPO  [7].

1.11  Regarding the legal advice to the Review by UK Government lawyers the IPO has refused to release any information as it is covered by legal professional privilege (LPP) and I have now asked the IPO for an internal review of this decision.

1.12 With the publication of Professor Bently’s analysis we now have on one side a open and transparent body of evidence setting out the “flexibilities available to UK law”. On the other we have advice very probably of a quasi-evidential nature, and of equal quality, from the UK government lawyers but because of the application of legal advice privilege it can be, at best, only partially disclosed.

1.13  In the light of the Government response that they “will in future give limited weight in IP policy-making to evidence that is not sufficiently open and transparent in its approach and methodology”, to which body of evidence should they give most weight in policy making?

1.14 Recommendation:

 

That the open and transparent approach to economic evidence set out in the Government response be extended to the fullest extent possible to the legal evidence and opinion behind draft legislation arising from the Hargreaves Review.

2.  Digital Copyright Exchange (DCE)

The Government responses states that:

 

2.1 “The Government will work to ensure that Crown copyright materials are available via the exchange from day one, or as soon as possible thereafter, and will encourage public bodies to do likewise”  [3 :p5 ]

2.2 The outputs of public sector research are not just published scientific articles, patents, IP licensing, or data-sets. There is also a very large amount of “grey literature” about current research published on  research council grants websites & grant databases, university departmental & unit websites, researchers home pages, blogs etc..

2.3 Arecent NESTA-RIN report [8:p14] characterised these research outputs as the “translating and engaging” part of the research cycle :

“involving the envisaged users of the research in actual or potential applications of it, in other

research fields, commercialisation or policy” ..by means of “General articles, web pages, briefings,

public exhibits, presentations” .

2.4 It would seem obvious that the widest dissemination, within and beyond the UK, of this “translate & engage” information would be of great economic value. However,  at present, nearly all of this information is only available under terms & conditions which limit its use to non-commercial private research & study. Re-use for any other purpose is forbidden without “express written consent” – even if you are a non-commercial academic researcher. Getting this express permission, and perhaps negotiating license terms, from over 100 separate universities and institutions is a long and daunting task. From initial experience I know that it is not easy in many cases to find  who to contact.

2.5 This emphasis on non-commercial private research & study seems to me to hark back to a vision of university research as a “club for gentlemen & scholars ” untainted by industrial or commercial concerns.  Times have changed as have academic attitudes but a “pull” model of information flow persists.  If you are a fellow academic in the same discipline you will know who to look for, where to look. There also needs to be a  “push”  model  to maximise dissemination and consequent economic benefits. The best chance for this push model to happen will be commercial incentive to set up innovative firms. These firms will not be set up unless they can easily and fairly license the re-use of “translate and engage” information for commercial purposes.

2.6 The push model based around innovative firms also applies to the high quality Open Educational Resources (OER) that UK universities are creating to support on-line education. To lapse into marketing jargon, “University UK” is a strong global brand as witnessed by the large number of overseas students wishing to study in the UK. The potential world market for “University UK” distance learning is very large but again the role of  innovative companies working with UK universities will be essential.

2.7 The role of the Digital Copyright Exchange in making all this happen, as soon as possible, after it has been set up is vital.  There already exists in the Joint Information Systems Committee (JISC) [9] an organisation with substantial experience in licensing and legal issues, and the development of OER resources, who could coordinate activity across the university sector in placing material into the DCE.

2.8 Recommendation:

In addition to working to ensure that Crown Copyright materials are available via the DCE from the start the Government should prioritise work to ensure that the “translate and engage” & OER  materials from UK university and research councils are also available via the DCE from the start, or as soon as possible thereafter.

3. Exceptions to copyright

 

3.1 The Government responses states that:

the Government agrees with the Review’s central thesis that the widest possible exceptions to copyright within the existing EU framework are likely to be beneficial to the UK, subject to three important factors:

• That the amount of harm to rights holders that would result in “fair compensation” under EU law is minimal, and hence the amount of fair compensation provided would be zero. This avoids market distortion and the need for a copyright levy system, which the Government opposes on the basis that it is likely to have adverse impacts on growth and inconsistent with its wider policy on tax.

• Adherence with EU law and international treaties.

• That unnecessary restrictions removed by copyright exceptions are not re-imposed by other means, such as contractual terms, in such a way as to undermine the benefits of the exception. The Government will therefore bring forward proposals in autumn 2011 for a substantial opening up of the UK’s copyright exceptions regime on this basis..  [3: pp 7-8]

3.2 First, I would draw the committee’s attention to section 2, “Flexibility within Art.5”, of the analysis provided by Professor Bently to the Hargreaves Review [7 :pp 5-11]. This section addresses directly the Government response:

the Government agrees with the Review’s central thesis that the widest possible exceptions to copyright within the existing EU framework are likely to be beneficial to the UK, subject to three important factors” 

3.3 In particular I would draw attention to Professor Bently’s  paragraphs covering copyright exceptions for quotations:

“It is worth noting in particular the breadth of Art 5(3)(d) that permits quotations. This goes well beyond the current definition of ‘fair dealing for criticism or review.’ Expanding the UK defence to cover all quotations (not just those made for criticism or review) would be a very useful amendment…”   [7: para 29 ]

what I would like to draw your attention to here is the mandatory nature of this exception. The international law of copyright requires the UK to adopt a broader exemption than that currently provided by section30.” [7: para 31]

3.4 Section 30 of the Copyright, Designs and Patents Act 1988 [10] provides an exception to copyright for:

“Criticism, review and news reporting…(1)Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement [F1 and provided that the work has been made available to the public]..”

3.5 This section of the CDPA is the transposition into UK law of  Article 5.3(d) of the EU Infosoc Directive [11] which states that an exception applies to :

“(d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose.”

3.6 The critical difference here are the words “for purposes such as” in the EU directive and “the purpose of” in section 30 of the CDPA. The EU directive clearly uses “criticism or review”  as examples of excepted uses, section 30 restricts that exception to the sole purpose of criticism or review.

3.7 Recommendation:

That section 30 of the CDPA be revised to enlarge its scope in line with article 5.3(d) of the EU Infosoc directive.

3.8 Second, the Government response notes that:

“The Government sees the areas where copyright restricts activity to no direct commercial benefit as doubly wasteful: neither new opportunities nor incentive to invest in copyright works result from them.   Nor does the Government regard it as appropriate for certain activities of public benefit such as medical research obtained through text mining to be in effect subject to veto by the owners of copyrights in the reports of such research, where access to the reports was obtained lawfully. We recognise that some publishers view licensing of text mining as a legitimate commercial opportunity; however we are not persuaded that restricting this transformative use of copyright material is necessary or in the UK’s overall economic interest.” [3 :p7]

3.9 I have already set out the public benefits of  wider access to current research materials  on university and research council websites in section 2 of this submission.  I am sure that use of the information in expired vacancy adverts for public sector scientific research posts, as the basis for a CRIS [1:pp 2-3], is a “transformative use of copyright material” in accord with the Government response above.  However, both present EU [11: article 5.3 (a) ] and UK[10: section 29]  legislation restricts the exception for research to a “non-commercial purpose”.  The answer could be to revisit the possibility of introducing recommendation 11 of the Gowers Review[12]:

“4.88 Recommendation 11: Propose that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test.” directly into UK legislation – with, for now, a limitation of the exception to the area of research.

3.10 That this could be possible has been covered both in Professor Bently’s submission [7 :para 45 et sec ]  and my own submission [1: pp 4-5] to the Hargreaves Review.

3.11 Recommendation:

Introduction into UK legislation of recommendation 11 of the Gowers Review 2006 with a limitation of the exception, for now, to the area of research.

3.12 Third, metadata on scientific and other research outputs (researcher name, organisation name, title of work, abstract etc..) has traditionally been excluded from copyright. However, in the light of the recent Meltwater v NLA decision [13] that copyright can reside in a title and very small portions of a text  there is a risk that metadata for scientific and other research could now fall within the scope of UK copyright legislation. This is an area covered in Professor Bently’s submission [7: paras 118-127] and my recommendation follows his paragraph 127

3.13 Recommendation

Amend section 3 of the Copyright, Designs and Patents Act 1988 to state: “Copyright does not subsist in names, titles, items of bibliographical data or metadata.”

References

1. Submission to Hargreaves Review – Scibella

http://www.ipo.gov.uk/ipreview-c4e-sub-scibella.pdf

2. Hargreaves Review into Intellectual Propery & Growth.

http://www.ipo.gov.uk/ipreview.htm

3. The Government Response to the Hargreaves Review of Intellectual Property and Growth

http://www.ipo.gov.uk/ipresponse-full.pdf

4. Digital Economy Act 2010 Impact Assessments April 2010 http://webarchive.nationalarchives.gov.uk/20100511084737/http:/interactive.bis.gov.uk/digitalbritain/wp-content/uploads/2010/04/Digital-Economy-Act-IAs-final.pdf

5. WORLD INTELLECTUAL PROPERTY ORGANIZATION GENEVA

ADVISORY COMMITTEE ON ENFORCEMENT Fifth Session Geneva, November 2 to 4, 2009

ENFORCING INTELLECTUAL PROPERTY RIGHTS: AN ECONOMIC PERSPECTIVE

http://www.wipo.int/edocs/mdocs/enforcement/en/wipo_ace_5/wipo_ace_5_6.pdf

6. Dnes A,2011 ALaw and Economics Analysis of Fair Use Differences Comparing the US and UK, Report for the Review of IP and Growth

http://www.ipo.gov.uk/ipreview-doc-j.pdf

7. Professor L Bently. Exploring the Flexibilities Available to UK Law.  Submission to Hargreaves Review

http://www.ipo.gov.uk/ipreview-c4e-sub-bently.pdf

8. Open to All? Case studies of openness in research

http://www.rin.ac.uk/system/files/attachments/NESTA-RIN_Open_Science_V01_0.pdf

9. Joint Information Systems Committee

http://www.jisc.ac.uk/

10. Copyright, Designs and Patents Act 1988

http://www.legislation.gov.uk/ukpga/1988/48/section/29

11. Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML

12. Gowers Review of Intellectual Property 2006

http://www.official-documents.gov.uk/document/other/0118404830/0118404830.pdf

13. [2011] EWCA Civ 890

http://www.bailii.org/ew/cases/EWCA/Civ/2011/890.html

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