Lex Ferenda

Two British events to take note of:

1. The first OpenNet Initiative conference, being held in Oxford on Friday May 18. Free registration, but they’d appreciate you declaring your intention to attend ASAP. I’m going (hopefully).
2. The Open Rights Group (ORG) are having a party on Wednesday April 11 in London. It’s an awareness-raising event primarily, and the centrepiece is this great raffle. Anyone can participate, whether you’re attending the party or not. I can’t make it to the party but it is coming together as a great event…

TV on the train?

The GO train is putting its passengers a little closer to their living rooms by installing TV screens on its rail cars.

The screens are showing news, weather, entertainment and sports highlights, but are designed as an advertising vehicle with the expectation they’ll raise $8 million for the transit authority over 10 years.

GO trains are commuter services in and out of Toronto; they use nifty little hexagon-shaped double-decker coaches on a few different routes.

I’ve seen the ‘infoscreen’ model in great action on the City-Airport Train (the expensive one) in Vienna, and found it quite funky, especially coming from an airport to a city, as it gave the essential information in a very clear fashion.

One innovative thing about the GO plan is that they will broadcast the accompanying audio on the FM band, so you can ‘listen in’, but those that don’t want to listen don’t have to. Am very curious as to how they’re doing this and what sort of regulatory hurdles they had to jump through. And, indeed, what is ‘it’? Essentially closed circuit slideshows with a coordinated-yet-separate low-power FM signal, I guess. It’s complicated by the fact that one of the frequencies they mention (88.5) is already occupied by CKDX (”Foxy“).

Of course, I have an instinctive hostility towards new attempts to bring commercial messages into neutral public spaces. Not least when they are already publicly funded, and the blurb says things like:

With the increasing competitiveness in the television advertising market, it’s key for advertisers to ensure they spend their ad dollars wisely. By offering television advertising in a captive environment of active upscale professionals we can guarantee advertisers are getting the reach they need to increase their bottom line.

Eeugh. And I thought getting on a train was just using a public service to get to work/college. No, apparently you’re getting into a captive environment of active upscale professional. Silly me.

More information on the project and the outline schedule.

I wonder if they could show reruns of the classic(ally awful) Train 48???

After the fuss on Trócaire’s ad (see Eoin’s detailed discussions and hundreds of links: 1 | 2), this month’s batch of decisions from the Broadcasting Complaints Commission (BCC) brings some interesting news. Fairly inevitably, in my view, the ‘Europe Direct’ radio ads were found to have been in violation of the infamous s 10(3) of the Radio and Television Act 1988 (as incorporated in the advertising code policed by the BCC under the 2001 Broadcasting Act). The complaints were made by Patricia McKenna and Anthony Coughlan - both with a long-standing interest in this area (McKenna is a Green MEP and campaigned against every European treaty; she also was the person behind the McKenna case on public funding of referendum campaigns; Coughlan is an old reliable of European campaigns and also went all the way to the Supreme Court regarding party political broadcasts and referendum campaigns - the poor BCC was the other party in that case! (Coughlan v BCC).

A key case behind the Trócaire controversy was Colgan v IRTC (’pro-life’ advocacy on a radio ad); and lo and behold, the BCC opens its weighing up of the submissions with

In assessing this complaint the Commission has paid particular regard to the decision of the High Court in Colgan v. I.R.T.C. [2000] 2 I.R. 490.

and thus we know where this is going.

The Commission tries to draw a line between political and non-political:

The Commission is of the opinion that the EU can be considered a political ideal and therefore, advertisements directed in favour of, or promoting, such ideal may be considered to be political. However, informational advertisements not directed in favour of, or promoting, such ideal, may be considered not to be political.

(Any thoughts on how this framework would affect Trócaire’s original ad?) In any event, even with the ‘informational’ opt-out, it’s still a far-reaching principle.

Applying that framework, the BCC finds that three of the ads (in a series of nine) were OK (’Team Europe’ speakers available, protections under environmental law and food safety standards), but the other six weren’t (€55 bn received by Ireland, Euro means value for money, EU aid to other countries, Erasmus student exchange, etc). And included in the six we find the radio ad that I heard first, and spat out my tea over:

“Did you know that telephone calls and airfares cost less now than they did 15 years ago? European Union legislation has created more competitive markets and forced down the prices of airfares and telephone calls.”

Apart from the appalling understanding of legal and economic theory, this was hardly ever going to survive scrutiny under s 10. The case of the Commission wasn’t helped by Commissioner McCreevy having said that the campaign would “show the benefits of EU membership”.

In fact, I think the Commission played this one fairly badly from start to finish. The original tender states that the project was for

the broadcast of a series of radio advertisements in all licensed local radio stations to highlight the Europe Direct information facilities

whereas clearly, the final text of the ads went much further than that, and tried to throw in some ear-catching advocacy on the wonders of the EU as a lead-in to ‘highlighting’ the information facilities.

So, six months (!) after the complaints, and five months after the campaign finishes, we find out that the ads shouldn’t have been broadcast. And one might ask - what’s the point of that? The same tender document indicates that the Commission paid €360,000 for this particular run (the tender was just for Ireland, although other projects existed across Europe). The ad agency made its money. The radio stations sold their time. The Commission got its message across without any interruption or interference.

If the content was so harmful as to be a violation of the requirements of s 10, what is the remedy? Surely both Commissions (Broadcasting Complaints and European!) have some explaining to do, given the thousands of listeners who have now heard this powerful but illegal message? I have many, many problems with section 10 (not to mention with the communications strategy of the EU) but this sort of situation makes a laugh of the legislation. A once-off campaign is run, and six months later it’s decided that the campaign was in violation of the law. And the justification for the law is the protection of the sensibilitites of the listeners.

Tell me this: if the statements of the Europe Direct project were so objectionable, should we assume that the State has failed in its duty to protect its citizens from the horrors of political advertising?

Between this, and Trócaire, and the various fusses over political advertising, and Michael D’s suggested amendment, my question is simple. Is it not time to scrap s 10(3) and to come up with something that actually works, with clear definitions of ‘political’ in the legislation and some measure of predictability for the listener, broadcaster and advertiser alike?

My application to participate in the 2007 summer doctoral programme (in Internet studies) co-organised by the Oxford Internet Institute and the Berkman Center for Internet and Society (Harvard Law School) has been accepted.

The programme takes place in Boston this July. This year’s timetable isn’t out yet, but you can get an idea on how the whole thing works from the 2006 schedule and list of participants.

Chomsky meets comedy.

(Removed video as it’s too wide: follow the link instead. Apologies)

Source: What We Call the News (Jibjab)

The Information Commissioner, Emily O’Reilly, has issued some suggested amendments to the Freedom of Information Acts.

In particular, I am happy to see the recommendation that:

The Act should provide for a refund of the ‘internal review’ fee or application fee paid to the Information Commissioner, as appropriate, where the original decision of the public body is successfully appealed at ‘internal review’ or appeal to the Information Commissioner.

The current fees are €75 and €150 for internal and external appeals - unnecessarily high in the first place, but offensively so when it is a successful appeal!

It’s a short document, without too much jargon. Well worth reading, and hopefully food for thought for the next Government….

A few weeks ago, I put out a call, under the heading of Internet-related Legal and Policy Issues in Ireland. I’m looking for people (bloggers or non-bloggers, lawyers or (especially) non-lawyers, techies or non-techies) to write a few words (or produce a presentation, podcast, whatever!) on a particular proposal for law reform that you’d like to see in Ireland (and this can include EU law, where appropriate). Unfortunately, I’ve been too busy and badly organised to follow up on it properly. So here we go again…

A few people emailed or messaged me about it, and Eoin has now written the first contribution:

• Fair Use: Recalibrating The Balance In Fair Dealing
  (Eoin O’Dell / Senior Lecturer in Law, TCD / cearta.ie)

Will you join this list? Just email me (macsithd at tcd dot ie), link to this post, or leave a comment. This is inspired by Lessig’s six proposals-in-progress; if it goes well, I’ll set up a separate blog/site to publish and discuss the proposals.

1. Did anyone else hear our beloved Tea Shock kvetching about the other parties “getting their policies off the Web” (or words to that end)? Newstalk had it on Saturday morning, from the Friday night Ard Fheis proceedings, but it hasn’t appeared in the transcripts or anything. It was quite surreal.

2. Get remixing. It’s in … de national interest.

3. Gráinne Kenny (Europe Against Drugs), who is to common sense as Mary Whitehouse was to freedom of expression, has a new triumph. She’s arguing that because Brian Cowen appeared on stage with a clip from Chelsea Dagger (watch it here) by The Fratellis, Fianna Fáil are sending a pro-drugs message. She tells us that a different section of the song uses the phrase “gave me gear” and calls for … an apology. (I want some of what she’s taking). She adds that they should have used Handel’s Messiah instead. Full story, great response here from the Arse End. (Maybe FF could take advice from Ireland’s newest PD, Frank McNamara, whose Liveline appearance today was hilarious).

However, I have now analysed the lyrics of the song, and can now exclusively reveal Fianna Fáil’s five promises for the next election. (Is there any truth in the rumour that new slogan The Next Steps is the name of the boyandgirlband that the Cabinet are forming?)

1. Mandatory sentence of one year for knife offences (”And it’s one for the Dagger”)
2. Removal of VAT on women’s shoes (”Well you must be a girl with shoes like that”)
3. Solving labour market problems through family reunification schemes (”Bring yer sister over here”)
4. New laws on ID verification to curb crime (”I said tell me your name”)
5. Cooperation with Russian businessmen in order to revitalise Irish sport (”Chelsea Chelsea I believe”)

John Naughton’s always enjoyable Sunday column in the Observer deals with copyright and parody this week. More specifically, he writes about the Flash animation of Tom Lehrer’s Elements Song (go watch it), which he’d blogged about earlier this week. I am a fan of Lehrer - I spent quite a lot of money on the comprehensive “The Remains of Tom Lehrer” boxset some time ago - but I hadn’t seen the animation, and thus seized on it and sent it on to many others..

Anyway, back to today’s story. Naughton’s article, (The very model of a modern creative society? I don’t think so (blog reference) takes the song and animation as the starting point for a quick gallop through the background to the song and finishing up with a discussion on present-day creative culture. See, Lehrer’s song took the tune from I Am The Very Model of A Modern Major-General (Gilbert and Sullivan, Pirates of Penzance). And of course, the clever Flash programmer/designer took the whole thing and added pretty pictures. Copyright lawyers’ ears start to prick up at this point, of course. Naughton (rightly) criticises the extention upon extension of copyright terms, and argues that this ultimately stifles creativity. (Lessig promises a presentation arguing that “Congress should carve a robust exemption to the law for non-commercial remix. Commercial use of such remixes should be regulated by a baseline statutory license.” Looking forward to seeing that).

It’s hard to stand on the shoulders of giants if you have to get the giant’s agent’s publisher’s lawyer(s) to sign for it in triplicate first. So this is a timely reminder. And in that spirit…

• Other attempts at adding graphics to the Elements Song: 1, 2, 3, 4, not to mention performances at talent shows (1, 2), a performance in Dutch and a weird, slow anime version.
• A directory of (mostly text) parodies of the Major General
• A great animation of the original (created by a student for a Flash class - an example of what I called the second side of GooTube last week (here)
• “I’ve written a self-referential Major-Gen’ral parody” *yes, it’s a parody of parodies*
• Ill-fated TV show Studio 60 on the Sunset Strip (last mentioned here) gave it a go to, with “The Very Model Of A Modern Network TV Show” (lyrics). Amusingly there’s no GooTube version of it other than this, which is the original audio set to a series of clips from (of all things) Battlestar Galactica. Not convinced about the clips but the song is great.

Finally, on reading Naughton’s column over coffee this morning (from Co-op, incidentally, bought the last time I came through Holyhead; why can’t they sell their stuff here instead of Tesco?), I immediately thought of Lobachevsky (studio version | live version), Lehrer’s ditty on plagiarism. (Tagging Eoin so he can come and tell his Lobachevsky story). And Naughton updated his post accordingly. Great minds, etc.

The by-now-standard outbreak of weekend silly season:

On tech:

• Linux is a girl, apparently
• Microsoft or die

Eurovision:

• UK: Flying The Flag (For You). Like Steps without the musical ability, Carry On without the humour, or Rock Hard Hallelujah without the rock, the hard or the hallelujah. Awful.
• Israel: the already legendary Push The Button. Look out for the guy in the Ireland shirt at 1:15.
• Finland: Leave Me Alone. Like last year, lots of guitars and hair, but no masks this time out.