UK Government Watch

After pressure from Open Rights Group supporters over the last week, the Government has just published its proposed changes to copyright law.

The new laws will finally give us the right to parody and legalise personal copying of our digital media. We're also seeing important changes allowing non-commercial research to carry out text and data mining.

The laws should come into force on 1st June but we're not done yet. MPs and Peers first have to approve them.

Back in February 2011 we made an important submission to Professor Ian Hargreaves' Review of Intellectual Property. Professor Hargreaves then published recommendations on copyright that the Government accepted and were the basis of the changes that they published today. Despite promising to bring the changes in, the Government were very slow to make the reforms. In November last year ORG wrote to them urging them to get a move on. Lord Younger replied in December promising them in the New Year to come into force this April.

But again, the reforms were slow in coming. So over the last week ORG supporters sent over 350 unique emails to Vince Cable and Lord Younger demanding that they publish the changes to copyright.

Parody

The parody exception is fairly simple. The draft law itself is only two pages long! It says that using a work for the purposes of carcature, parody or pastiche does not infringe copyright in the work. It also makes clear that contracts can't be written to make using a work for parodic purposes an infringement of copyright.

• Under current legislation, parody can only be made lawfully by obtaining permission from the rights holder
• Amendment : Parody,caricature and pastiche are legalised under 'fair use'

Personal copies for private use

The personal copies exception is a bit more complicated. It will finally allow you to make back up copies of music, films or ebooks you have purchased or been gifted. That doesn't include computer programmes though. You can also convert your files to another file format or to play on a different device. And you can make personal copies of your files in the cloud.

There are limitations on the copying. For example, you cannot pass these copies or the original files on to another person. And you can't make any commercial gains from making the copies either.

The new legislation brings in restrictions on rightsholders or vendors imposing technical or contractual measures to stop you from making private copies. This is one area where we'll be looking for greater clarity on how to interpret the new law.

• Under current legislation, consumers are not allowed to make a private copy of a work they have purchased
• Amendment : Private copies from one device to another are allowed on items owned by consumers
• Making copies of streamed or borrowed works is still not permitted
• Making copies of owned work, for friends and family, is not allowed
• If you want to sell the original work and have made any personal copies, they must first be deleted.

Quotations

• Under current laws, quotations can only be used for news, criticism or review
• Amendment : The use of quotations will not constitute copyright infringement if it is under 'fair dealing' and the original source is acknowledged

The government is supporting calls for harsher penalties for internet insults. Justice Secretary Chris Grayling has backed Conservative MP Angie Bray's demands for changes to the law.

According to the Evening Standard , Grayling agreed that the legislation needed to be tightened to protect victims from malicious comments being directed at them via social networks such as Twitter and Facebook.

Offences under the Malicious Communications Act currently only carry prison sentences that are no longer than six months, because such cases are heard at magistrates' courts. The proposed amendment to the Criminal Justice Bill, which will be discussed in Parliament on Thursday, could change that, presumably by allowing Crown Court scale punishments.

Comment: If we want to live in a society without offence we will live in a society without free speech

27th March 2013. See  article from  indexoncensorship.org

Kirsty Hughes, CEO of Index on Censorship, said:

Index is deeply concerned at the government's apparent intention to deepen the criminal penalties for grossly offensive communications sent through the internet or social media. Just last year, the then Director of Public Prosecutions Keir Starmer put out a very sensible set of guidelines to limit the number of arrests for social media posts that may be offensive to some but did not constitute a criminal offence. Now we are going backwards. Offence is a subjective concept and if we want to live in a society without offence we will live in a society without free speech.

Offsite Comment: Free speech will suffer if politicians get tough on offensive tweets

27th March 2013. See  article from  theguardian.com by Robert Sharp

Thanks to online abuse, MPs may be about to remove our right to be offensive. But giving offence is a vital part of democracy

...Read the full article

These are good times for British film fans. The UK is lucky to have some of the best DVD labels in the world ( Arrow , the BFI , Masters of Cinema , Odeon , Second Run , Second Sight , Nucleus...) producing essential releases of that cater for every taste.

But this golden age could be coming to an end, courtesy of some well-meaning government legislation. From May, the way home video material is classified is changing: material that is currently exempt from classification will have to be vetted by the BBFC.

The Department of Culture, Media and Sport (DCMS) decided that the best way to stem the tide of tabloid claims of pop video filth is to tighten up BBFC ratings. And they came up with some new and expensive regulations.

The main change is that any documentary material that contains clips of things that might be considered unsuitable for children will no longer be exempt from classification. So any DVD extra (an interview, for example) that contains a clip from the main feature will have to be scrutinised again. A single use of the word 'fuck' is enough to put the work in 12 rated territory and hence need expensive vetting by the BBFC.

A 90 minute film on DVD/Blu-ray will set you back £ 615 plus VAT, according to the fee calculator on their website. No big deal to the major labels but potentially calamitous for the knife-edge economics of the independent sector. It was Marc Morris, of Nucleus Films who first sounded the alarm about these changes and he offers a case study of the impact they'll have on industry.

The documentary Video Nasties: The Definitive Guide proved a big hit, but parts of the material, particularly the framing documentary were exempt from classification. Morris estimates it would cost between £ 6,000- £ 7000 more had the documentary been made after the new law comes in.

Alan Byron, MD of Odeon Entertainment notes:

The economics behind collector's releases will now dictate that extra features are reduced and more vanilla editions will appear.

It goes without saying that all this was pushed through without consulting any of the labels it affects -- and there's been virtually no communication from either the DCMS or BBFC to explain that the changes were even happening

 Francesco Simeoni of Arrow Films concurs:

The new legislation has serious implications for niche labels, says . Our audience is very much on an international level and so we must compete with territories that do not have to contend with such costs. Whether we choose to include content for our releases has a whole new set of financial considerations which means we are at a significant disadvantage to our competitors.

...Read the full  article

Comment: Not Exempt from criticism

20th March  2013. From Stuart

We know all this, and it's not as bad as this article is making out. The BBFC podcast explains in great detail about scrapping the E certificate, and it's not about suffocating the industry. It's about informing the public about what the contents are in the DVD which some viewers might find objectionable, which gives them a choice on whether to watch it, or not.

This is not the 80s, the Whitehouse/Ferman days are long gone.

Offsite Comment: Extras Tax

21st March  2013. See  article from  huffingtonpost.co.uk by film director Pat Higgens

I haven't had any argument with the BBFC for a long time.

Until this week, when they announced a potentially catastrophic change to their policy.

Not catastrophic to the big boys, of course. Not catastrophic to the Harry Potter s or Star Trek s of this world. As usual, shit rolls downhill towards the guys at the bottom.

In fact, this change of BBFC policy would probably be unnoticed by everybody except small independent distributors and the filmmakers whose films are distributed by them.

Filmmakers like me.

...Read the full article

Patrick Rock, a Thatcherite who served as special advisor to UK Prime Minister David Cameron who played an influential role in the Prime Minister's national Internet censorship plan, has been arrested for possession of images depicting the sexual abuse of children .

The National Crime Agency is conducting forensic analysis of the computer networks at the Prime Minister's office/residence, Number 10 Downing Street.

This week, the following letter was sent to a number of MPs and Lords, to raise concerns over the planned rape porn legislation.

This was sent on behalf of Sex & Censorship and an alliance of other sexual freedom campaigns: Backlash , Consenting Adult Action Network , Campaign Against Censorship  and the Sexual Freedom Coalition .

We write to express grave concern regarding S16 of the Criminal Justice and Courts Bill which will extend the existing ban on extreme pornography (S63 of the Criminal Justice and Immigration Act). This section is poorly defined. It will have the unintended consequence of criminalising the possession of material that depicts consensual sex, bondage and power-play fantasies common to millions.

Pornography of all kinds has become much more accessible since the Internet has become available to the general public. In that time, the prevalence of sexual abuse has not increased in the United Kingdom and may have decreased. It is simplistic & mistaken to suggest that pornography is a cause of violence against women. Correlation is not causation. Serious academic studies of pornography and sexual violence (1) show that increased availability of pornography is, in fact, associated with less violence and abuse.

Fictional and consensual portrayals of submission and domination are a common and popular sexual fantasy, as recently illustrated by the Fifty Shades of Grey novels. Indeed one of the largest surveys ever undertaken in Britain (2) indicated that nearly a third of us have fantasies about elements of forced sex, with approximately 2.2 million men and women having violent sexual fantasies. With around 90% of men and 60% of women viewing pornography, and with so many enjoying fantasies of this nature, the danger is that this poorly defined legislation will have a huge impact.

The Bill's Impact Assessment suggests that the number of cases cannot be predicted. When extreme material was criminalised (by S63(7) CJIA 2008) government ministers predicted there would only be 30 cases a year, but the reality was very different. In the last year for which the MoJ has provided data (2012/13), there were 1,348 prosecutions. Given that the number of people who enjoy material that features sexual bondage and power-play is so high, we fear government will create thousands of new sex offenders, most of whom will be entirely harmless law-abiding citizens.

There is also a problem with government guidance for the public and prosecutors. Just prior to the enactment of S63(7) CJIA 2008, in response to reservations, the House of Lords was promised that meaningful guidance would be issued to explain those categories that were difficult to define. This never happened. In fact prosecutors were so unsure of the meaning of the law that there have been some trials of material which we are confident Parliament never intended. For example, the prosecution of barrister Simon Walsh, a former aide to Boris Johnson, whose legal practice had included investigating corruption within British police forces. His career in public life was ruined by a prosecution. It was rejected by a jury after 90 minutes deliberation. Prosecutors failed to prove that images depicting consensual sex acts between him and two other gay men were extreme .

The prosecution also threatened the reputation of the Crown Prosecution Service as an impartial public servant by showing that gay men risked having their lives destroyed in court over intimate acts which were consensual, safe and commonly practiced within the LGBT community. Bad laws do not harm only the individuals prosecuted; they also harm the institutions tasked with enforcing them, and increase even further the costs of the justice system to the taxpayer. This proposed law will also traumatise large numbers of women and men by having their private sexual fantasies examined and shamed in public.

It is therefore vital that S16 of this Bill be refined to limit the scope of the ban to images that are produced through real harm or lack of consent. Fantasy portrayals of forced/power-play sex are too commonly enjoyed to be reasonably subject to prohibition.

We appeal to you to refine this legislation. We also ask to be permitted to put detailed evidence to Parliament at the committee stages. Finally, we ask if you would be willing to host an event in Parliament, at which representatives could speak, so that members of both Houses can better understand what is at stake.

References.

1. Pornography, Public Acceptance and Sex Related Crime: A Review: 2009: Milton Diamond 2. British Sexual Fantasy Research Project: 2007. ISBN 978-0-713-99940-2

The Department for Culture, Media and Sport looks set to bring a new law into effect on 6th April 2014. The law will remove the current blanket exemptions for music, sports, religious and educational videos.

Videos that would be U or PG rated will continue to be exempt but videos that would be rated 12 or higher now need to be censored by the BBFC before they can be legally sold in the UK.

The mechanism to predict whether videos require censorship is provided by a long list of content that would likely trigger at least a 12 rating. If none of the triggers apply then the video need not be submitted.

The changes are applied via a Statutory Instrument meaning that it doesn't require debate in parliament.

The draft bill was as follows but it is possible that changes were made after a public consultation

The  new regulation amends Section 2 subsections (2) and (3) of the Video Recordings Act 1984:

Subsection (2) of the current Video Recordings Act reads

(2) A video work is not an exempted work for those purposes if, to any significant extent, it depicts--

• (a) human sexual activity of acts of force or restraint associated with such activity;
• (b) mutilation or torture of, or other acts of gross violence towards, humans or animals;
• (c) human genital organs or human urinary or excretory functions;
• (d) techniques likely to be useful in the commission of offences;

This will be replaced by

The Video Recordings Act 1984 (Exempted Video Works) Regulations 2014

(2) A video work is not an exempted work for those purposes if it does one or more of the following-

• (a) it depicts or promotes violence or threats of violence;
• (b) it depicts the immediate aftermath of violence on human or animal characters;
• (c) it depicts an imitable dangerous activity without also depicting that the activity may endanger the welfare or health of a human or animal character;
• (d) it promotes an imitable dangerous activity;
• (e) it depicts or promotes activities involving illegal drugs or the misuse of drugs;
• (f) it promotes the use of alcohol or tobacco;
• (g) it depicts or promotes suicide or attempted suicide, or depicts the immediate aftermath of such an event;
• (h) it depicts or promotes any act of scarification or mutilation of a person, or of self-harm, or depicts the immediate aftermath of such an act;
• (i) it depicts techniques likely to be useful in the commission of offences or, through its depiction of criminal activity, promotes the commission of offences;
• (j) it includes words or images intended or likely to convey a sexual message (ignoring words or images depicting any mild sexual behaviour);
• (k) it depicts human sexual activity (ignoring any depictions of mild sexual activity);
• (l) it depicts or promotes acts of force or restraint associated with human sexual activity;
• (m) it depicts human genital organs or human urinary or excretory functions (unless the depiction is for a medical, scientific or educational purpose);
• (n) it includes swearing (ignoring any mild bad language); or
• (o) it includes words or images that are intended or likely (to any extent) to cause offence, whether on the grounds of race, gender, disability, religion or belief or sexual orientation, or otherwise.

These Regulations do not apply in relation to any supply of a video work which was first placed on the market before [6th April] 2014

The Criminal Justice and Courts Bill has been published and includes a section extending the definition of extreme porn to include depictions of non-consensual sex.

S63 CJIA 2008 will be extended to include rape material, but the definition looks to be so wide that it might include the majority of bondage related material.

This is the crucial bit: -

Clause 16 will extend CJIA 2008 S 63 (7) legislation by inserting provisions which include: -

16(2)C: after subsection (7) insert---

(7A): An image falls within this subsection if it portrays, in an explicit and realistic way, either of the following: -

(a). an act which involves the non-consensual penetration of a person's vagina, anus or mouth by another with the other person's penis, or

(b). an act which involves the non-consensual sexual penetration of a person's vagina or anus by another with a part of the other person's body or anything else, and a reasonable person looking at the image would think that the persons were real.

(7B): For the purposes of subsection (7A): -

(a): penetration is a continuing act from entry to withdrawal;

(b): vagina includes vulva.

16 (3): In section 66 (defence: participation in consensual acts): - a. before subsection (1) insert---

(A1): Subsection (A2) applies where in England and Wales: -

(a): 5a person (D) is charged with an offence under section 63, and

(b): the offence relates to an image that portrays an act or acts within subsection (7)(a) to (c) or (7A) of that section (but does not portray an act within subsection (7)(d) of 10that section).

(A2): It is a defence for D to prove---

(a): that D directly participated in the act or any of the acts portrayed, and

(b): that the act or acts did not involve the infliction of any non-consensual harm on any person, and

(c): if the image portrays an act within section 63(7)(c), that what is portrayed as a human corpse was not in fact a corpse, and

(d): if the image portrays an act within section 63(7A), that what is portrayed as non-consensual penetration was in fact consensual.

My reading of this is that it is for the defence to prove that that any act was consensual. If it looks non-consensual (and a large proportion of bondage material will be interpreted that way) then the person found to be in possession of such material will have to prove that the act was in fact consensual.

The Impact Assessment

There is an impact assessment which provides more information, but some of it is misleading (for example 1. the justification is said to be the desire to reduce violence against women and 2. an inference might be drawn from the 1 case that is believed to have been prosecuted in Scotland). The reality is that in England thousands of people have been caught out by S63(7) and thousands more will now fall foul of the new law.

Page 7 of the IA suggests that there will be some protection but I can't see any: -

28. There are minor risks that anti-censorship groups could see this step as an infringement on private consensual sexual activities, for example staging consensual acted rape scenarios. However, we intend to provide a limited defence to address some of these concerns. Alongside this the measure is likely to be well received across Parliament and a range of women's rights groups in particular.

29. We also intend to make available for the purposes of the images covered in the extended offence, the existing defence for participants possessing images of themselves, provided that no harm was caused to any participant, or if harm were caused, it was harm which was and could be lawfully consented to.

Sex education videos used in schools are to be given age ratings for the first time amid evidence that growing numbers of concerned parents are pulling their children out of classes.

From February, the government will scrap a regulation which exempts sex education videos from age classification. So for example, the BBFC will decide whether sex education videos are PG rated and so suitable for primary school. If the depictions of sex in the videos are anything more than implied and the language is goes beyond mild references and innuendo , they will be effectively banned from primary school.  Also schools will be told to send parents letters detailing the content of sexual education videos before they are shown in class.

The new policy follows 'outrage' over a sex education video made by Channel 4 called Living and Growing . The video included a segment for eight year olds showing a naked cartoon couple chasing each other around a bedroom with a feather before having sex. Another segment, aimed at children from five, asked them to name the body parts on a drawing of a naked man and woman.

Ed Vaizey, the culture minister, said:

Ensuring children are protected from inappropriate content in the best way possible, is vitally important. The new classifications will mean that children are better protected from harmful content and parents will have the information they need to make confident decisions about whether certain DVDs are suitable for their children to watch.

The BBFC will be given the powers after a consultation found that teachers were concerned that growing numbers of parents, particularly from ethnic minority backgrounds, are pulling their children out of sex education classes. The consultation, conducted by the BBFC, also assessed parent's concerns about Channel 4's controversial Living and Growing DVD, which was shown in thousands of schools. Teachers said that the feather duster scene, in which a cartoon couple chased each other, conveyed a message that sex is fun and something for children and teenagers to be excited by .

David Austin, the head of Policy at the BBFC, said:

We hope to help schools and help parents find out more about the content of sex education videos before their children see them. What we haven't tended to look at [in the past] is sex education videos for younger children.

There was a lot in the [Living and Growing] video that was suitable. There was one with a cartoon with a woman straddling a man having sex, there was another of a man chasing a woman with a French tickler.

Parents didn't like that, and the company has started selling an edited version.