ORG policy update/2015-w48

This is ORG's Policy Update for the week beginning 23/11/2015

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National developments

Scrutiny of draft IPB to be rushed through Committee stage

The deadline for the Joint Select Committee tasked with pre-legislative scrutiny of the draft Investigatory Powers Bill has now been agreed and published, following the addition this week of seven members of the House of Lords to the six MPs already appointed from the House of Commons.

The Committee is expected to report on the 300-page draft Bill by 11 February 2016. The Investigatory Powers Bill will be one of the most significant pieces of legislation made by this Government, however because of the Parliamentary recess over Christmas and the New Year the Committee will have very little time to scrutinise the long and intricate draft Bill, hear evidence from witnesses and produce their report. The tight schedule will limit the amount of expert witnesses they can invite to give evidence.

The schedule has been criticised by Lord Strasburger who is on the Committee, as well as by other MPs and civil liberties groups, for failing to give enough time for effective scrutiny and for going back on the word of the Home Secretary, who has repeatedly stated that the Bill would not be rushed through Parliament.

Court of Appeal refers DRIPA case to CJEU

The Court of Appeal has referred to the CJEU questions about the Data Retention and Investigatory Powers Act legal case and the scope of the CJEU Digital Rights Ireland judgment. The referral comes after the Government appealed against the High Court decision that DRIPA is inconsistent with European law, after a legal challenge brought by MPs David Davis and Tom Watson, in which Open Rights Group intervened. In reaching its decision, the High Court applied the CJEU Digital Rights Ireland judgment, which found the EU Data Retention Directive unlawful.

The Court of Appeal took the provisional view that in Digital Rights Ireland the CJEU did not intend to set out specific mandatory requirements of EU law with which national legislation must comply. It declined from delivering judgment to this effect, however, in order to avoid a further appeal to the Supreme Court which would likely end in a referral to the CJEU. The Court of Appeal therefore referred two questions to the CJEU:

  • whether the CJEU in Digital Rights Ireland intended to lay down mandatory requirements of EU law with which the national legislation of Member States must comply?
  • whether the CJEU in Digital Rights Ireland intended to expand the effect of Articles 7 and/or 8, EU Charter beyond the effect of Article 8 as established by the ECtHR?

UK IPO abandon private copying exception?

The 1709 blog has reported that the UK Intellectual Property Office will not pursue reviving the quashed private copying exception, which allowed individuals to make copies of their personal, legally held copies of works for private, non-commercial use without infringing copyright. The exception meant that individuals who made back up copies of music, films or other works, or "format-shifted" their copies to other devices, were no longer acting unlawfully.

The exception was brought in last year but the statutory instrument was quashed by the High Court in July 2015 because of an inadequate consultation process. It was still open to the Government to conduct a more thorough consultation process, but the recent CJEU Reprobel decision may have made it too complicated to pursue legislation that complies with European law in this area. The CJEU judgment acknowledged that fair compensation must be given to rights holders for uses of their work that fall into a category of exemption created by Member States through national legislation.

Without a private copying exception, many individuals who legally own copies of music, films and other works will be acting unlawfully when they copy them onto their computer, cloud storage, or media device, despite there being little evidence of harm to the rights-holder. Enforcing copyright over this area is very difficult and rights holder organisations have previously stated that they would not take anyone to court for this kind of personal copying, which they accept in practice. Rights holders seem to be reserving their position for times when they can monetise this copying, whether that is through levies on media, or looking for license fees for instance from cloud services, but this results in an area of copyright law that is effectively unregulatable, risking the repute of the law in general.

There are also implications for the music distribution industry, including streaming and cloud services, who may need to amend their policies to avoid enabling infringement.

Freedom of Information Commission consultation receives high numbers of submissions

The Freedom of Information Commission consultation closed this week. The Commission was set up to review the Freedom of Information Act, particularly in response to this year's Supreme Court judgment on the release of Prince Charles's correspondence with ministers, which ruled that ministerial veto of FOI requests could only occur in restricted circumstances. The Chairman of the Commission, Lord Burns, has reported that they have received over 30,000 submissions to the consultation - a large number that demonstrates the public's concerns about changes to the legislation.

More than 100 civil society organisations, including Open Rights Group, signed the Open Government Network's evidence submitted to the Freedom of Information Commission. It argues against an absolute exemption for policy deliberations and a blanket exemption for risk assessments. It also argues that ministerial veto should not allow the executive to overrule the courts, that the benefits of the Act justify the costs to public authorities, and that to charge for requests would be detrimental to transparency.

The Commission are now analysing the submissions and plan to invite selected parties to give oral evidence in January.

Parliamentary Debates and Questions

Question on TPP

Lord Lester of Herne Hill asked about discussions the Government have had with negotiating parties to the Trans-Pacific Partnership Agreement (TPP) about safeguarding freedom of expression in its intellectual property provisions.

Baroness Anelay of St Johns, Minister of State for the FCO responded that there had been no discussions because the UK is not a party to the trade agreement.

Question on the cost of implementing the draft IPB

Conservative David Davis MP asked the estimated cost of reimbursing communication service providers under the draft Investigatory Powers Bill for the first ten years if an Act came into force.

John Hayes, Minister of State for the Home Department, responded with a holding answer that the estimated cost for the retention of Internet connection records would be £174.2m.

Question on the technical consultancy for the draft IPB

David Davis MP asked what technical consultancy was provided when writing the draft Investigatory Powers Bill and the cost of it.

John Hayes responded that the Home Office uses technical expertise from within the civil service and from external sources, as well as consults with academics and industry, in the preparation and implementation of legislation but that it is not possible to quantify how much of this was specifically related to the draft Bill.


Google transparency report shows over 1m URLs evaluated for de-listing

Google's latest transparency report shows that the search engine received 349,351 requests for the removal of links after the CJEU Google Spain ruling in May 2014. The ruling confirmed what has been referred to as "the right to be forgotten", meaning that individuals can request that search engines remove links with personal information about them where the information is "inaccurate, inadequate, irrelevant or excessive".

The transparency report shows that these requests have led to 1,237,861 URLs being evaluated for removal, with 42.1% of these actually resulting in de-listing. The report also gives examples of some of the requests they have received and the outcomes of these requests, and lists the sites that have been impacted by the requests the most.

European Commission VP outlines copyright reform plans

Andrus Ansip, Vice-President in charge of the Digitial Single Market, discussed the future of copyright reform in the EU in a recent speech. He said that the aim of the reforms is to widen access to cultural content online, and he specifically highlighted cross-border portability of online content as a focus. He indicated that the Commission would be seeking closer harmonisation on exceptions to copyright in Member States and better access to online services from other EU countries to reduce piracy levels.

The European Commission's draft framework on copyright reform is due to be published in full in two weeks.

ORG Media coverage

See ORG Press Coverage for full details.

2015-11-26 – Motherboard - Even the Food Standards Agency Could Access UK Surveillance Data Under New Bill
Author: Joseph Cox
Summary: Jim Killock quoted on the dangers of overreach if too many Government agencies have access to surveillance data as a result of the draft Investigatory Powers Bill.

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