Note: I will be speaking at this event on the post-Leveson debate and the regulation of content on the Internet. So if you want to know my views on the whole ‘news-related material’ and ‘OMG regulating tweets!’ controversy, this is where I’ll give them (and follow up here on this blog with a summary).
The Future of Press Regulation in Scotland
The EU MEDIADEM project is hosting a workshop on Tuesday 26 March 2013.
The expert committee chaired by Lord McCluskey has been exploring the implications of the Leveson Report for press regulation in Scotland. This workshop will examine the findings of that committee, as well as the various models of press regulation, such as a Royal Charter, that have been proposed post-Leveson. Among the expert speakers at the workshop will be members of the McCluskey committee, representatives from the press and academics working in the field.
The workshop will also consider a number of findings and potential ‘gaps’ in the Leveson Report that have attracted rather less media attention to date, notably – data protection, statutory recognition of the public interest in investigative journalism and the regulatory implications of media convergence. Speakers will briefly introduce these topics before opening the floor to what we hope will prove to be a lively discussion.
The workshop will take place in the Ken Mason suite, Old College, South Bridge, Edinburgh EH8 9YL from 4pm – 6pm, followed by a wine reception.
The event is open to the public and we invite students, academics, journalists, civil servants, representatives from civil society organisations, the legal profession and members of the public to join us in engaging with these topical issues. Places are limited, so please confirm attendance with the administrator for the conference, Ms. Yolande Stolte. For further information call: 0131 650 2094.
News, blog posts, etc
Lisa Campbell, ‘Is Netflix just a novelty?‘ (Broadcast 14 February 2013). Given my interest in VOD (primarily how it is regulated but to get there requires understanding the market), the last few weeks have provided much to think about. I can’t decide whether to be impressed at the Netflix coup of launching House of Cards as an all-at-once release or cynical about how its press releases were parroted by some in the press. I think both. Anyway, the coverage in Broadcast does look at it from a number of different angles. (Thought I will return to although I’ve probably said it before: if the standard for being covered by EU audiovisual media law includes being ‘TV-like’ subject to interpretation in a ‘dynamic’ way, does this sort of move make a difference?)
Jeremy Phillips, ‘Save our hyperlinks! Paws for reflection as Profs Opine‘ (IPKat 15 February 2013). Commentary on the intervention of academic group the European Copyright Society (does it have a website? cannot find) in a very important case on hyperlinks, Svensson. The case is before the Court of Justice of the EU shortly and takes up a question much loved by IT textbooks more or less since they started to exist: is a link one of the acts restricted under copyright law? If so, then the consent of the author of the target page may be necessary – but the consequences are significant.
Claire Porter, ‘Google ‘flaw’ puts users’ details on display‘ (News.com.au 16 February 2013). Another tricky story about apps and privacy; this one is about the Google Play store. Worth noting that there is a bit of discussion about the way the story has been reported (and amended) – see e.g. here. Original link via Slashdot.
David Streitfield, ‘Tech Industry Sets Its Sights on Gambling‘ (New York Times 18 February 2013). Discusses the implications of any change in the law on online gambling in the US for social networks and for the casual gaming sector. Also mentions the interesting issue of gambling and Diablo.
William Turvill, ‘News agencies’ fear over impact of copyright law proposals‘ (Press Gazette 20 February 2013). It looks like the lobbying against the proposed implementation of the Hargreaves Review is well underway now. I think there is a fair point to be made about the constitutional problems (the typical, pernicious turn to secondary legislation in place of proper parliamentary scrutiny), although the substantive arguments tend to the alarmist. For example, I can see why the photographer groups who were critical of orphan works proposals in the past are sceptical about extended collective licensing. Less obvious to me is why that opposition extends to the long-overdue proposals on parody. Perhaps there’s just general opposition. We’ll see. Given that some of these recommendations are still overdue from Gowers 2006, it would be a shame to get stuck at this stage..
Speaking of parody: Kris Erickson, ‘Evaluating the Impact of Parody on the Exploitation of Copyright Works: An Empirical Study of Music Video Content on YouTube‘ (Bournemouth University for IPO, 2013). Fascinating attempt to measure the consequences of protecting (or not protecting) parody. Via Rebecca Tushnet.
And more on copyright: Lee Edwards, Bethany Klein, David Lee, Giles Moss, and Fiona Philip, ‘Framing the consumer: Copyright regulation and the public’ (2013) 19 Convergence 9-24 (£). Multi-disciplinary perspective on attitudes to copyright, with a particular interest in downloading (other articles in the same issue also explore the theme of attitudes and IP)
News, blog posts, etc
European Commission, ‘EU Cybersecurity plan to protect open internet and online freedom and opportunity‘ (press release, 7 February 2013). Marking the release of a new strategy and proposed Directive (download both of them here) on this topic. The interesting bit about this is how it’s framed – legally speaking it’s an internal market measure (not crime!); strategically, it follows up on the many comments about ‘trust’ in the Digital Agenda documents of the last couple of years. While most of the operative provisions of the Directive are about national authorities for infrastructure and cooperation between them, there is an interesting (proposed) obligation for member states to regulate ‘market operators’ in terms of security and also notification of breaches. (Incidentally, is this category of ‘market operator’ a new one? It has two sub-categories – information society services ‘which enable the provision of other’ ISSes (examples in an Annex are cloud computing platforms, app stores, search engines, social networks), and operators of certain types of critical infrastructure. Art 14 doesn’t apply, in essence, to telephone/mobile/broadband providers, because the electronic communications directives already occupy the field. (It also doesn’t apply to certain players in the much-maligned electronic signatures field – although I read that exclusion as being broader than those entities contemplated in the 1999 Directive). (The ‘open internet’ etc language of the strategy and press release is slightly overstated, I think).
John Brodkin, ‘Wi-Fi “as free as air”—the totally false story that refuses to die‘ (Ars Technica 8 February 2013). This is most curious. The (interesting and potentially significant) work of the FCC on what to do with UHF ‘white spaces’ – spectrum formerly used or left as a buffer for TV broadcasting but becoming available for other uses – has been of interest in IT law for some years now. Then seemingly from nowhere, a normal development in the regulatory process became the basis for an article about free wifi. This is not to say that white spaces and Internet access are unconnected; clearly, it’s one of the reasons that people beyond spectrum gurus talk about it. (I wrote about it in passing in this 2009 article, in section 5.5). But the licensing process does not deliver a free service by any means (even if, as is being discussed, the regulatory model would not include a license fee for spectrum use). Nor has anything particularly interesting happened in recent weeks – as Brodkin’s deconstruction points out, the interesting stuff either happened a few years ago (when the opening up started) or will happen in the future (if new services are launched).
Simon Fodden, ‘Edwin Mellen Press’s Curious Case‘ (Slaw 10 February 2013). A comment, with plenty of links, on the developing (and worrying) story about the huge defamation claim (the applicant seeks the equivalent of over £2m!) against a librarian (who wrote some quite critical things about a publisher, informed by his knowledge of the field) and his university employer. I would certainly not have anything to do with this publisher as a result of its actions in this case (whatever about the underlying allegations themselves!).
Alexander Hanff, ‘The murky world of privacy advocacy‘ (10 February 2013). A new blog and a rollicking start, with a detailed analysis of corporate funding for tech-related NGOs. It’s about time. Given the field I’m working in, I’ve seen quite a few of these organisations (and indeed, their close cousins, the consultant reinventing themselves as an NGO/think-tank with no membership, no membership and often nothing to add). I think the post by Hanff demonstrates a very honest attempt to understand the weaknesses of the lobbying system and reminds us all to think about the motives as well as the contents of interventions.
‘Virtual currency and virtual property revisited‘ (Technollama 11 February 2013). An overview of recent developments on virtual £££ and IP and other things, prompted by a piece in Forbes which mostly about virtual property). See also this nice PBS video on Bitcoin, etc.
Nina Mendelson, ‘Should Mass Comments Count?’ (2012) 2 Michigan Journal of Environmental & Administrative Law 173 (SSRN). This is a response to the author’s earlier work (and a debate about it), but reading the article covers much of what before quite neatly. The issue is a controversial one – how, when public consultation happens, to deal with different forms of participation (particularly one-click or template methods).
Michael O’Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34′ (2012) 12 Human Rights Law Review 627-654 (£, link). The author of this article was the rapporteur work on this General Comment and discusses the comment as well as some of the cases and stories it relied upon. Watch out for the interesting discussion of article 19 and emerging technology, too.
E Tarantino, ‘A simple model of vertical search engines foreclosure’ (2013) 37 Telecommunications Policy 1 (£, link). The new volume of this journal (mix of law, business, economics, etc) starts off with one of the topics of the year, competition law and search engines.
I am pleased to invite proposals to present papers in the Media and Communications subject section at the annual conference of the Society of Legal Scholars, which has the theme of “Britain & Ireland in Europe, Europe in Britain & Ireland” and takes place at the University of Edinburgh (3rd-6th September 2013).
If you would like to present a paper in this section, please send me your proposal (consisting of title, details of the author(s), and a provisional abstract or description) by 8th March 2013. Decisions will reach you by 22nd March 2013. My email address is here.
The media and communications section falls in the first half of the conference (Group A: 3rd & 4th). There are four 90-minute sessions available with two (perhaps three) speakers per slot.
Given the theme of the conference, I intend to facilitate one session on EU media and communications law. Please indicate if you would like your paper to be considered for this panel. However, papers need not be on the conference theme at all.
Academic papers are invited on any area of media and communications law, including (but not limited to):
- the regulation of broadcasting (in the UK, Ireland and/or elsewhere)
- defamation and reputation, including proposed legislative changes
- privacy / breach of confidence
- freedom of expression and information in the context of media and
- communications (for example, content regulation)
- telecommunications law and policy
- media ownership and pluralism
- responses to the report of the Leveson Inquiry
- competition and the media and communications industries
- the laws, practices and codes affecting journalism (e.g. contempt of
- court, subterfuge, court reporting, recognition/status of journalists)
- the control of marketing, advertising, and sponsorship
- contract and rights issues affecting the media and communications sectors
- (for example, television coverage of sporting events)
- universal design / access in relation to communications
- language and minority rights and the media
Please note the following important information:
1. Speakers are permitted to present more than one paper. However, if you are offering more than one paper to this Conference, please say so when you submit your proposal. This is to enable better planning of the programme.
2. Those presenting papers will be expected to provide a final abstract of their paper for the paper bank (on the SLS website). At the very latest, this will be required by the end of July.
3. There will be, as usual, a prize for Best Paper; a full paper must be uploaded by 5pm 26 August 2013 and not be published, accepted or under consideration elsewhere, in order to be eligible. Further information and full regulations can be obtained from the Society.
4. You are also reminded that all speakers and delegates will need to book and pay for the conference in due course.
I look forward to receiving proposals. Please feel free to forward this call to your colleagues and to appropriate mailing lists, and to contact me if you wish to discuss a proposal before you submit it.
Double edition! At the end of January, I was caught up in the excitement of the official launch of CREATe. I was taking notes on laptop and paper, so more to follow on that soon.
News, blog posts, etc
Eric Goldman, ‘17 USC 512(f) Is Dead–Lenz v. Universal Music‘ (Technology & Marketing Law Blog 25 January 2013). Goldman discusses the latest decision in the Lenz case (the infamous ‘kid dancing to Prince‘ video and how it was taken down at the request of the record label). He reports on the way in which section 512(f) of the DMCA (misrepresentation in takedown notices) has been read in a narrow fashion by the court and argues that it will have little purpose in the future. This is interesting (as is his neat point that because a lot of takedowns now happen outside of the DMCA process, it’s already becoming irrelevant) – for me, having argued that the EU should apply its ‘groundless threats’ approach to notice and takedown to come into line with the DMCA, it’s a warning to draft that suggestion more carefully.
Mike Madison, ‘Coulton, Glee, and Copyright‘ (Madisonian 28 January 2013). On a theme of legal and other considerations – this is an article responding to a scandal which I confess had escaped me (involving Glee!), about a legal issue I’m more familiar with ‘covers of covers’. For the interest of non-US readers – this is a particular feature of US copyright law where a ‘cover version’ can be the subject of a compulsory licence. (Actually – as discussed in the post – this isn’t always the solution, as there can be negotiation or going through the Harry Fox Agency instead). However the situation here (the rights of B in its cover version of A’s composition against C’s cover version of A which is derived from B’s) may stretch the effectiveness of that solution (and, as Madison talks about in the second half of his post, suggest questions about the purpose of the law and about the ethics of the situation.
‘WhatsApp breaches privacy laws‘ (CBC News 28 January 2013). You know I like stories about apps. This one is about one of the success stories of last year, WhatsApp (instant messaging). As the CBC story explains, the Privacy Commissioner of Canada (along with equivalent authorities in the Netherlands) has investigated a bunch of issues regarding the service and privacy. Some were resolved through changes to the operation of the service, but one major continuing breach was noted – the requirement to grant access to full address books in order to use the service. The full report is here.
Liat Clark, ‘WTO grants Antigua right to launch ‘pirate’ site selling US media‘ (Wired UK 29 January 2013). This story, widely reported during this period, is about Antigua’s success before the World Trade Organisation (some time ago now – see case file DS285) in its criticism of US violation of world trade law in respect of the regulation of online gambling. As suggested for a few year now – but now getting more likely as the measure has been approved – it proposes to use the WTO mechanism of trade retaliation, because the US has failed to implement the binding decision of the dispute settlement process. The US is professing shock and dismay. However, as a strong proponent of free trade (and indeed the sanctions associated with the WTO process), I’m sure that an understanding can be reached. Remember: the US took the case to an appeal and lost, and arbitration has also been pursued.
Jason Del Rey, ‘YouTube Set to Introduce Paid Subscriptions This Spring‘ (Advertising Age 29 January 2013). There’s been a flurry of stories in 2013 about how to build a model of charging for video-on-demand; this story explains the proposal to identify selected channels and charge a monthly (and possibly PPV) fee. Answers on a postcard – will this, if it succeeds, encourage broadcaster-managed non-archive VOD (e.g. the ‘catchup’ bit of 4od, for example) to try and build a charging system – and if so, is it Spotify-style or micropayments per programme? (I say non-archive VOD because there is a relatively clear mixed economy emerging for archive VOD with various forms of charging and ad support)
Kevin Chao, ‘Mobile Kills the Console But Advances the Gaming Industry‘ (Wired 31 January 2013). Is this finally the year of mobile gaming? Lovely stats here and a framing of the issue as being about reach, engagement and monetization. (There is however an ongoing and very significant issue in the UK – and no doubt elsewhere – about monetization and mobile, the role of mobile network operators vs (e.g.) Facebook credits vs other models and the role of PhonePayPlus (regulates premium rate calls and texts which is one of the ways the charge can be set) – see the very perceptive market study for that very organisation.
Bob Tarantino, ‘What the *BLEEP*? Coarse Language in Radio Broadcasts‘ (Entertainment & Media Law Signal 31 January 2013). Round-up of Canadian broadcast standard decisions on language and radio. (On that note, I noted subsequently how the New York Times reported the well-deserved Grammy success of Jay-Z & Kanye West as being for ‘___ in Paris’, and the awkward pacing of the bowdlerised broadcast version of the new UK no. 1 single, Thrift Shop; compare the editing on this page (short silencing of the offending part making the result ‘This is ___ing awesome’) with what actually went on air in the chart show (looping, making the result ‘This is aws-aws-awesome’), here at 2h54m)
Josh Halliday, ‘YouTube study shows children ‘three clicks away from explicit material’‘ (Guardian 5 February 2013). Oh dear. Apparently if you find a video aimed at children and then click and then click and click again you end up at a less suitable video. Traumatic I’m sure, but has anyone figured out a way to prevent that without making ‘related videos’ completely unworkable? Say a video has 20 ‘similar video’ links, then by the third click we are at up to 8000 possible videos – and by click five it’s over three million possibilities. See also Six Degrees of Separation, etc.
Adrienne Jeffries, ‘Why Amazon wants its own currency‘ (The Verge 5 February 2013). I was reminded about The Verge by a student recently – just in time for this piece on e-money, with a nice approach to the practical as well as legal or technological reasons to adopt a particular model of payment.
Patrick Wintour, ‘Peers pass low-cost arbitration law for victims of press defamation‘ (Guardian 6 February 2013). Somewhat overtaken by events since, but this was a tricky development in the post-Leveson story – specifically, adding in one bit of the recommendations to the Defamation Bill. Although I’m not convinced by this approach, I still hold to the view that the Defamation Bill needs to be properly linked up with the Leveson settlement. I appreciate that some people have waited a long time for defamation reform, and that there is work that needs to be done…but its changes will be more legitimate and sustainable if they form part of the new approach to press regulation (particularly as many of the Bill’s changes are specifically defended as pro-press).