Friday, September 28, 2012

IPO Admits Censorship Overreach in Consultation Response

The ongoing saga with the UK Intellectual Property Office has taken a few steps forward, since I last talked about it. The situation at present is that they have admitted that some of the redactions were improper, and defended others. Details on what and why follow....

So, I hadn’t shared this with the wide world yet, but I’ve had some progress with my dealings with the IPO and their censorship engine. Last Friday (only a few days later than I had been promised) I got an email saying that they’d reconsidered things, and decided to include all but 4 points. Here’s the email (using the numbering from the rebuttal statement I submitted 6 weeks prior)
Subject: RE: Data from consult-2011-copyright-respond
Date: Fri, 21 Sep 2012 09:02:09 +0100
From: Hamza Elahi <XXXXXXXXX>
To: 'Andrew Norton' <[email protected]
After the redactions we made to your consultation response, you sent us a document (attached) querying those redactions.
We have now fully considered this in consultation with our lawyers and have decided:
1. To readmit 1-14.
4. To keep 15, 16, 17 redacted. It was felt that the comments made here did not qualify as fair comment.
5. To readmit 18, 19, 20.
6. To keep 21 redacted. It was felt that the comments made here did not qualify as fair comment.
7. To readmit 22.
My apologies for the delay in responding.
Your revised consultation response will appear on the IPO website shortly.
Best regards
Hamza Elahi 
Policy Adviser, Hargreaves Review Implementation, Intellectual Property
Office 020 7034 2813
Interested in following Hargreaves Implementation?
Subscribe to updates at
I'm at the point where I'm not even surprised that he's apparently redacted his own points 2 and 3...

Now, Contrary to what has been said, the updated response STILL isn’t on the site (as of this being published) almost a week later. But let’s break down what’s been allowed, and what’s not.

Here’s what they objected to, and didn't consider fair comment marked in red. Incidentally, one part (marked in green) was approved.

33 When, if ever, would a collecting society have reasonable grounds to treat members and non-member rights holders differently? Please give reasons and provide evidence to support your response.
They always have a reasonable ground to treat members and non-members differently. They should not collect for non-members work, and should not intimidate the public into licenses ‘just in case’ some of their members work is used. However, Collection societies seem to treat non-members as members for the purposes of collecting money.

34 Do you have any specific concerns about any additional powers that could accrue to a collecting society under an ECL scheme? If so, please say what these are and what checks and balances you think are necessary to counter them. Please also give reasons and evidence for your concerns.
I have significant concerns over the current powers such groups have. As stated before, they need a comprehensive audit and restructure, before they can even gain peoples trust or respect. At present, many consider them to be in the same category as low-class debt-collectors, the same kind you see on BBC Rogue Traders or Watchdog, and for the same reasons; underhand tactics, demanding money unnecessarily, and attempting intimidation to bring in funds.

44 What do collecting societies do well under the current system? Who benefits from the way they operate? Please explain your response and provide evidence for it.
As noted in the answer to 22 above, what they do best is intimidation, lies, and deception. Those that benefit from their methods of operation are the groups/organisations that get the major shares of the payouts and the company itself. Evidence is listed above in 22.

65 Do you agree that the imposition of a statutory code should be subject to review? How long should such a code be in place before it is reviewed? Please give reasons for your response.
That would depend on the circumstances of the imposition. However, the saying ‘fool me once, shame on you, fool me twice, shame on me’ should be heeded. They are already getting away with significant abuses, and if, after a code, they continue, they should not get a THIRD chance to abuse their position.

The rest of the redactions, listed previously are acceptable to them now. What’s funny is they’ve said that claims of intimidation, deception, and malpractice “did not qualify as fair comment” in their opinion, but, they admitted in EVIDENCE OF INTIMIDATION, MALPRACTICE AND DECEPTION.

They admitted a phrase about it being a bullying experience, after sourcing the British Chamber of Commerce’s business survey finding the PRS ‘intimidating’("aggressive" and "threatening" are the words the Chamber picked out in their press release, certainly sounds like intimidation to me.) You can’t say ‘ok we’ll accept your 14 points of intimidation, bullying, deceptive practices and deceit’ then go ‘you can’t SAY they do that though, we don’t think that’s fair comment’. It's absolutely barmy!

Fair comment (or as it's now known in the UK, "honest comment") requires a believe that the statement is true based on the facts known to them. I know my statements are true, however they do not believe that my statements are true, or that they're my honest belief, because they know differently, even after presenting evidence to back up my claims? It's an 'odd' interpretation of law to say the least.

What’s even funnier, is that earlier this week Techdirt reported on a white paper, detailing problems with collecting rights organisations around the world. Funnily enough, it’s a collection of… intimidations  deceits, malpractice, deception, fraud, and other criminal acts. It’s quite an interesting read. While most of the cases were known to me at the time of the submission, I only picked out those that were less controversial  or done with, to avoid this very rigmarole.

Such cognitive dissidence must have a reason behind it. There’s two ways to find it out. I *could* file a lawsuit (either claiming I’m being libelled by the statement that accompanied the release as it damages my professional standing; I could also file for an Article 10(1) violation of the ECHR) or I could file a freedom of information request with the IPO to try and find out what was discussed about

I went with the latter. Of course, I can still go with the lawsuit if need be.

I'll let you all know what happens when it happens. And in the meantime, I upgraded the timeline to something with a bit more ‘pizzazz’


  1. This is so ridiculous.

    I cannot imagine any agency in the United States redacting public comments. There people are used to crazy statements, so you can say almost anything. The real trick is even to get heard.

    Your comments aren't crazy, of course, they're just summary opinions of widely held views, with an emotional value element.

    But how is one supposed to give 3rd party sources for statements like "intimidation", "abuses" or "low-class debt collectors"?

    It's a cumulative belief based on complex evidence, a belief that will never be shared by diehards, but does put forward a view. The very fact that you have the view, whether or not you can prove it to the satisfaction of a given reader, is important information in the public process. If you don't put forward good evidence, it will simply be less convincing. But even a bare statement of opinion will persuade some readers, because of their own independent knowledge. Your opinion might help them interpret their knowledge. Or not. But presumably the battle of ideas can't take place unless the ideas are expressed. So such comments should be allowed.

    Indeed, I think third party sources are meant for actual facts, not evaluations, opinions, or emotions.

    I thought everyone knew this, but apparently in Britain these days, at least from what I read in the papers, virtually anything critical or negative is considered defamatory.

    So you are stuck with public monitors who act like fussy schoolmasters.

    Now -- I wonder if it is still more restrictive on the Continent. I always assumed English-speaking countries had better speech freedoms. But I can't tell, even though I live on the Continent.

    I do know one thing -- in Germany they are really fond of saying things that are negative and critical, so it can't be illegal.

  2. Actually, I did have evidence and 3rd party sources for 'intimitation', and 'debt collectors'. I misesed it from the initial submission, but put it in the letter about the redaction that prompted this decision. It was a survey of 2000+ members of the British chamber of Commerce, who found the majority of their members had found them acting in that way, and prompted the head of that group to write to the government about it, back in 2009.

  3. Still, the monitors should not be evaluating the strength of your argument while vetting the submission for legal issues. That is a completely backwards idea of what public comment is all about. They're not supposed to judge substantive issues. Even an unargued case should be admitted.

    I appreciate your ability to dig up public documents that support the use of these words, but what gave those 1000+ Chamber members the right to check off the "low-class debt collector" box on their survey form? Surely that tick mark is defamatory without proper sourcing in turn?

    If the survey is a private communication (not enough audience to be libel), what allows the Chamber head to repeat the assertions publicly?

    But I just can't escape thinking that comparing industry protagonists to low-class debt collectors -- or even asserting that many others share this view -- is too vague and, frankly, too mild for any reasonable person to consider it defamatory.

    Your monitors have simply mixed up "sour and ill-mannered" (in their view not mine!) with "defamatory". They've confused some clubroom manners with the rules of public debate.

    In any case, best of luck. I picked up the story through Techdirt.