This article was originally published on Open Democracy, as a part of a week-long series on the future digital freedom guest-edited by Index

The digital age has inevitably shaken the concept of copyright to its core. When you have “digital” content, you always have the “human readable” format and you also have the digital expression of the copyrighted material translated by computers into bits — the ones and zeroes. As a result there is a degree of inevitable copying of the work in question. “Digital” means copying, in other words.

Similarly, networks must make temporary copies to function. So, “network” means copying.

Computers make copies in order to process and display information. Therefore “computer” also means copying. As a result, the growth of computers accessing content over digital networks means either reinventing information and communications technologies or re-inventing copyright to some extent.

Unfortunately, it has taken a painfully long time for this fairly simple realisation to dawn on many of the analogue industries that had grown too comfortable to grab the opportunities that the digital revolution offers. One of the best examples of this dogged refusal to accept the most basic concepts of digital technologies was the debate surrounding the copyright status of temporary technical copies created by computer networks.

In 1999/2000, publishers and the music industry ran an energetic lobbying campaign against a copyright exception for incidental network copies that, “do not interfere with the normal exploitation of the work” by the copyright owner.

The European Publishers’ Council (EPC) warned in 2001 that “unless we have Parliament’s amendments [to prohibit unauthorised temporary copying] or something similar in effect, we do not have the ability to authorise any kind of copy, regardless of its economic significance, and thereby lose our control over illegal, piratical distribution of our works.”

The logic of the publishers was somewhat more subtle and more dangerous than it sounds. If every copy in an internet provider’s network would be a copyright infringement, the provider could not function without prior authorisation. Providers would be liable for copies made in the transmission of legal/authorised content and doubly liable (for the copy and the facilitation of the infringement) for illegal/unauthorised content.

If the amendments in question had been adopted, European Internet companies would have had no option other than to monitor, delete, censor and restrict their customers in every way that the publishers considered appropriate for fighting against copyright infringement — as well as increasing prices by demanding royalties for legitimate content. Of course, 1999/2000 was a lifetime ago in internet years and things have moved on in the meantime.

Or have they? In 2012, the Austrian High Court has referred the “kino.to” case to the European Court of Justice. One of the questions asked in that case is: “are reproduction [sic] for private use and transient and incident reproduction permissible only if the original reproduction was lawfully reproduced, distributed or made available to the public?”

The referral attempts to re-open the question of making internet companies independently liable for copyright infringement in relation to every unauthorised file that passes over its network. So, we are back in 2000, with a threat that internet companies could be forced into a “gatekeeper” role as a privatised police force.

An unwise ruling from the European Court of Justice would speed up an already problematic trend that is fuelled by efforts to use internet companies as private enforcement “tools” in order to protect copyright in the online environment. Even though both ACTA and SOPA failed, their proposals on the enforcement of copyright through “voluntary”arrangements with any or all internet intermediaries live on. The US-led OECD “Communiqué on Principles for Internet Policy-Making”[pdf] adopted in June 2011 talks obscurely of norms of responsibility that enable private sector voluntary co-operation for the protection of intellectual property.

It somewhat less obscurely reflects an active choice to avoid references to the right to a fair trial and due process of law, choosing instead to refer to “fair process” — which sounds like both, but means neither. This practical implementation of such a policy can be seen in efforts of the United States “IP Enforcement Coordinator”, to exploit the global reach of US companies to take “voluntary” punitive actions against foreign online services considered to be breaching US copyright rules. The “voluntary” measures taken against Wikileaks also give a taster of where this policy is heading. Payment service providers blocked payments to Wikileaks while Amazon withdrew hosting services.

Amazon pulled hosting services from Wikileaks in 2010 after pressure from the US government

This increasing pressure on intermediaries to meddle with content is happening at a particularly inauspicious time. Internet access providers are increasingly demanding the right to interfere with the functioning of the open internet (i.e. undermining the concept of network neutrality). The core value of the internet for free speech is the “any-to-any” concept whereby any part of the network can (broadly speaking) communicate unrestricted with any other part of the network.

This is now under threat from the privatised enforcement measures demanded by some policy-makers from internet intermediaries that are increasingly finding commercial advantages in making such interventions.

Suddenly, we end up confronted simultaneously with all the worst aspects of policy-development over the past fifteen years. We have courts questioning the most fundamental elements of the networked environment — the “right” of network providers to make the transient copies that are essential to the functioning of the Internet — the argument that we already had thirteen years ago.

Layered on top of these existential questions, we have policy-makers tinkering with the most fundamental legal principles of a society that is based on the rule of law, seeking to replace the regulation of free speech and communication by laws and courts with terms of service and the whims of internet access providers, hosting providers, domain name registrars, domain name registries, search engines, payment providers and advertising networks.

And layered on top of this, we have internet access providers raising their own existential questions about the viability (from their perspective) of the core concept of the internet – the  ”any-to-any” principle.

Joe McNamee is EU advocacy co-ordinator at European Digital Rights

The post Getting copyright right appeared first on Index on Censorship.

This article was originally published on Open Democracy, as a part of a week-long series on the future digital freedom guest-edited by Index

Threats to digital freedom are growing just as the number of people accessing the internet is taking off, with millions more likely to join the digital world through mobiles and smartphones in the coming years.

The range of challenges is wide: from state censorship, including firewalls and the imposition of network or country-wide filters, to increasing numbers of takedown requests from governments, companies and individuals, corporate hoovering up of private data, growing surveillance of electronic communications, and criminalisation of speech on social media.

The rapid growth of threats to our digital freedom, in democracies as well as authoritarian regimes, means that the next few years could prove to be a watershed period determining whether the net remains a free space or not. Defending our freedom online means taking action now — beginning with understanding the nature of the threats and who lies behind them.

Governments send mixed messages
In democracies such as the US, UK, Sweden, India or Brazil, governments and politicians will often make stirring calls to defend digital freedom, emphasising that fundamental rights to freedom of expression and privacy apply online as much as off. But faced with temptations, such as the growing technological ease of mass population surveillance — from mobile phones to internet usage, web searches and social media chat — too many governments in democracies are starting to look at the sort of mass gathering of communications data that previously only authoritarian regimes would consider.

This leads to strange contradictions in government policy stances. In the UK, the government has temporarily withdrawn its proposed “snoopers’ charter” (the Communications Data Bill) in the face of swingeing criticism from an MPs’ scrutiny committee and from wider civil society. The Bill in its proposed form would have represented the most extensive mass surveillance of a population’s activities in the digital world of any democracy.

Yet at the same time, the UK along with the US, Germany and many other European countries has stood firm against attempts by China and the Russia, with some support from an array of other countries, to introduce top-down global control of the internet. Instead the UK government, along with many other (though not all) democracies, has argued for the current more “multistakeholder” model where no one body, country or group controls the net. The Indian government wobbled to a disturbing extent on this before refusing to go along with China and Russia at the major international telecoms summit in Dubai last December, in their push for this top down control.

Countries such as China and Iran have, unsurprisingly, been in the vanguard of those trying to build firewalls, block websites, and in myriad ways limit, control and monitor their population’s use of, and access to, the web. Yet the number of countries limiting the internet in some way has grown sharply in the last few years. Some of the limits introduced may seem unimportant, such as the Danish government having a country-wide internet block on their population accessing gaming sites in other countries (not for censorship reasons but to preserve the Danish monopoly on this profitable business). But the more the internet is filtered at network or country level, the less free it becomes.

There will always be arguments why a particular filter is necessary — to tackle child porn, to protect children and young adults from legal adult porn, to tackle crime and terrorism, to stop offence. Filtering and blocking sites always run the risk of over-blocking, of hiding not stopping a problem, and of being used for reasons beyond those stated.

Unless governments stand up for free speech, there can be segments of the public who demand limits on speech that undermine free expression as a fundamental right. One key example of this is the growing sensitivity of many people to offence. Yet there is no right not to be offended, and one person’s offence is another’s honest argument or piece of creative art. In the UK and India, we have recently seen arrests and prosecutions for supposedly offensive comments or photos and other postings on social media (in the case of these two countries relating to the common root of a 1930s English law that criminalised ‘grossly offensive’ phone, and then electronic, communications). There is now growing concern and debate about this criminalisation of mostly harmless social media comment. In the UK the director of public prosecutions Keir Starmer has issued interim guidelines in an attempt to rein in the growing number of such prosecutions.

Corporations as censors
Another disturbing part of this growing set of threats to our web freedom is the role played by corporations. Many web hosting companies and internet service providers state their support for fundamental rights, including free expression, while insisting that they also have to obey the laws of countries they are in. Google and Twitter have led the way in publishing transparency reports showing the number of takedown requests and user data information requests they have received from different governments.

But companies can become complicit in censorship if they take content down too readily in the face of public or government complaints — avoiding the risk of court cases or libel suits, playing safe. Companies such as Facebook or Twitter also set their own terms of service which define what is and is not acceptable usage and behaviour on their platforms. Perfectly normal perhaps — just like a club sets the rules of behaviour of its members.

But when the club, in the case of Facebook, is a billion strong, and its terms of service dictate what types of images and language are and are not acceptable, moreover dictating that anonymity is not allowed, then these are the sorts of constraints on free expression that are usually the preserve of governments to decide — governments that can be held accountable by their citizens (in democracies) and challenged by civil society, in the courts and through the ballot box.

The retention and commercial use of increasingly large amounts of individuals’ data from their internet activities has also sparked an extensive and vital debate about privacy. Privacy online is very often closely intertwined with free expression online: if someone is monitoring what you do or say or gathering it up and exploiting it commercially, that can be a major chill on free speech.

Whether and to what extent there should be a “right to be forgotten” is one part of this debate. Given the pervasive nature of the web, actually deleting individual data is becoming increasingly difficult. At the same time requests to delete individual data from news reports, for instance, is a sort of censorship of the historical record which would be highly undesirable.

Digital freedoms closing down

There are a wide and growing set of threats to our digital freedoms. But there are positive trends too. The rapid, intense and so far successful fight back against various forms of extensive imposition of copyright controls (ACTA, PIPA, SOPA and others) shows this is not a one-way street.

Even in regimes like Iran and China, many ordinary citizens have found ways to evade the censor, to widen their ability to communicate and access information. Governments can be challenged — at least in democracies — if they go down the route of mass surveillance or criminalisation of social media comment. Defending our digital freedom means becoming active, engaging with the arguments, making the case: bad decisions and laws can be stopped, limited or reversed. It is a national and an international debate — and the debate is now on.

The post Gathering clouds over digital freedom? appeared first on Index on Censorship.