The Gowers review
OUT-LAW Radio, 07/12/2006
We dig deep into the Gowers report and find recommendations for
pricier CDs and a return to hip hop's glory days, plus an update on
Gary McKinnon's extradition case.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW Radio, the weekly podcast that
keeps you up to date on all the twists and turns in the world of
technology law.
Every week we bring you the latest news and in depth features
that help you to make sense of the ever-changing laws that govern
technology today.
My name is Matthew Magee, and coming up on this week's show we
look at how the Gowers review could result in more expensive CDs,
and we catch up with NASA hacker Gary McKinnon for the latest on
his appeal against extradition to the US.
But first, the news.
- UK citizens will face fine rather than sign up to ID card
register;
- seven years for man who sneaked camcorder into cinemas;
and
- ad ban does not breach human rights, says High Court
Hundreds of thousands of people will refuse to sign up to the UK
Government's planned identity register, according to just-published
research. Around 8% of those surveyed said they would refuse to
sign up to the database even if they are fined.
The survey was carried out by polling firm YouGov on behalf of
the Daily Telegraph Newspaper and in a sample of nearly 2000 people
found that a significant proportion were prepared to defy the
Government over the database.
If the figures are extrapolated to the entire UK population of
60 million people they mean that 23.4 million people would oppose
the database and 4.8 million would be prepared to face a fine for
resisting signing up. If just 2% of the country's over 16s refused
to register then the Government would face a one million person
revolt, the Telegraph said.
A man convicted of recording films using a camcorder in cinemas
has been sentenced in the US to seven years in jail. The man was
the first to be charged in a nationwide campaign against video
piracy.
Johnny Ray Gasca was found guilty in 2005 of copyright
infringement. He was also convicted of using a fake Social Security
number and of fleeing his lawyer's custody while awaiting trial. He
represented himself in his trial, which lasted a week.
Gasca said that he did not record the films for profit, but the
prosecution case included diary excerpts in which Gasca wrote that
he earned $4,000 a week through his actions. "it is hoped the
sentence will deter further unlawful conduct and protect the
public," the judge in the case said.
The Communications Act's banning of political adverts does not
violate rights to free speech, the High Court has ruled. An animal
rights pressure group has lost its case, though it may appeal it to
the House of Lords.
Animal Defenders International (ADI) want to be able to
advertise in broadcasts, which is banned by the Communications Act.
It argued that the Act infringes its rights to free speech and
therefore breaches the European Convention on Human Rights.
One of the Judges in the case Justice Ouseley in rejecting ADI's
case said "The necessity for restrictions on political and social
advocacy broadcast advertising outside elections periods has been
convincingly shown."
That was this week's OUT-LAW News.
The long awaited Gowers report was published yesterday. Tasked
with analysing and reviewing the laws on intellectual property by
Gordon Brown, former Financial Times Editor Andrew Gowers came up
with a surprisingly unadventurous set of recommendations. More of a
fine tune than a total rebuild, the Gowers report nonetheless had
some pretty far out tricks up its sleeve.
The headline news was that Gowers said that copyright on
performances should not be extended beyond the current 50 years and
that people should be able to copy their own CDs onto their
computers and MP3 players.
Look closer at that recommendation, though, and something
startling begins to emerge: Gowers is effectively recommending that
CD prices should rise.
The European Copyright Directive says that a country can have a
right to private copying, but that some compensation must be made
to artists. Across Europe that is done by an extra charge on blank
CDs and MO3 players. Gowers says that there should be no levy, and
that, effectively, record labels should up the prices if they want
compensation. Intellectual property expert at Pinsent Masons, the
law firm behind OUT-LAW, Kim Walker explains:
"I think Gowers accepts that it is a blunt instrument and he
says that you know controversially I think he says that the record
companies can effectively get the fair compensation that they are
entitled to for allowing private copying by putting up the price of
CDs while the Directive says that if number of states are going to
allow a private copying exemption they must afford the record
companies the right to get fair compensation and I think Gowers is
saying they would have the right to get fair compensation because
they could just adjust the price of CDs."
There are other possible solutions, though. Kay Withers of the
Institute for Public Policy Research recently told OUT-LAW Radio
that you could have no levy and still stay in line with the
European law:
"There has to be suitable financial compensation. I mean we feel
that suitable financial compensation in this sense is none really
because it is not actually harming the artist."
Perhaps even more radically, though, Gowers entered a debate few
expected him to. He wants the music industry to return to the hip
hop glory days of the '80s when sampling was rampant. Gowers says
that transformative and derivative works must be made legal.
Suw Charman of technology rights pressure group The Open Rights
Group explains.
"The Gowers report recognises how important it is for a range of
different art forms, not just music but they also talk about Pablo
Picasso and T S Eliot and you know being able to sample themes and
motives and segments of prior work is very important to creativity
and as they say the crucial point should be whether transformative
use compromises the commercial interest of the original creator or
offends the artistic integrity of the original creator."
The most obvious use is in music with sampling. Gowers wants the
law to give much more leeway to artists. Kim Walker again.
"It is probably the most interesting suggestion in the whole
report, the boldest suggestion in the whole report in my view in
that it is trying to create really a whole new exemption from
copyright infringement or exception to copyright infringement. So
it is really saying that if you take someone else's work and in a
fair way, whatever that means, you develop it to create a new work
then you are not infringing the rights in the earlier work and you
don't have to get clearance if you do it fairly. In the US where
they have a similar right as I say under their fair use doctrine
you know what is fair has been narrowed over the years so in fact
the right to create a derivative work in particular you know the
most common example is sampling in the record industry you know
that right has been narrowed by the Courts in the US over the years
so in fact the right to sample is very narrow in the US. Gowers
seems to be saying you know he doesn't want it to be a very narrow
right and in the US it is almost now so narrow that you can't
sample without getting clearances, and Gowers seems to be saying he
would like the right to be as it was in the early days in the
US."
This proposal is probably the most radical in his report, and
would transform copyright law and music if it was adopted.
Record labels are happy with the private right to copy, though
not so happy about the lack of a levy. They will oppose the changes
to derivative works with their every fibre, and they also come
under some scrutiny for their own copyright protection methods.
Gowers says that putting digital rights management technology on
to CDs can be confusing and misleading. Sony/BMG famously put DRM
on a release which cause all sorts of trouble for users' computers.
Gowers now wants DRM warning labels to be put on all CDs that carry
the technology. Charman approves.
"That is something that is going to allow the market to allow
consumers to know what they are getting and to know to make an
informed choice about whether or not they want to buy. I think you
know it shouldn't just be discs that are labelled. We need to be
technology neutral in this so it needs to be not just labelling
discs but also labelling downloads. At the moment you can buy what
you think is a CD or you can buy a download and discover the
restrictions once you have handed your money over and it's all too
late."
Gary McKinnon says he has been told that his appeal against
extradition to the US could be heard in a matter of weeks, and that
he could be on his way to America after a January Court case.
McKinnon is the hacker who broke into the US military
and NASA computer systems and claims he saw evidence of alien
life. He recently told OUT-LAW of how he was snatched in the middle
of the night by Police but later released and told he would
probably only face community service.
The US Government got involved, though, and want to extradite
him to the US where he has been called the perpetrator of the
military hack of the century and threatened with up to 70
years in jail.
OUT-LAW Radio caught up with McKinnon to see how his Appeal
against the extradition order is going.
GM: Babar Ahmed who was in front of me in the pipeline for
extradition, he has lost his Appeal so I assume that now he has
gone through that process and I should get my Appeal pretty
soon.
MM: Is anyone giving you any idea of a kind of time frame?
GM: I should think it would either be this month or next
month.
McKinnon has been told that his case will last just two or three
days. He has no automatic right of Appeal after that and can only
request permission to go to the House of Lords. He is not confident
of success in that request.
GM: If I don't win the Appeal, then I can apply for leave to
Appeal to the House of Lords, but that is not an automatic right.
For instance the NatWest Three applied for leave to Appeal to the
House of Lords and were refused it and everyone was gobsmacked
because you know they're hardly petty criminals and it was a very
big important case.
A Romanian, Victor Faur, has just been indicted in the US for
similar alleged crimes to McKinnon's and the US is seeking his
extradition from Romania. McKinnon thinks that Faur could face even
more serious charges than him, and that the security in US sites is
even less secure now than it was when he broke in in 2001.
"There was a conspiracy as well in legal terms. There was more
than one person doing it. If they all dismantled whatever security
mechanisms were in place, and as you know from my experience, there
were little or none. Every year they rate civil and military
installation and security and every year its gets worse and worse.
It is not the leading concern, they want profit as the motive and
continue and operation as the motive. Safety and security always
comes last because they are the highest outlay, the highest cost
outlay."
Gary McKinnon there, with an update on his case.
That's all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you have a legal
problem you would like us to discuss on air? Do you know of a
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Make sure you tune in next week; for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew
Magee for International Law Firm Pinsent Masons.
