A new group is being formed to promote open digital standards, starting with a declaration regarding the importance of digital standards being truly open.

Part of Digistan’s effort to promote understanding, development, and adoption of open digital standards implies a clear definition of what “open” implies in standards terms. Accompanied by a list of conformant open standards, this has the potential to be used as an equivalent of the opendefinition.org Open Knowledge Definition or the freedomdefined.org Free Cultural Works definition

However the current approach looks different and consists of “metrics” to assess relative “openness”. It’s early days and not immediately clear how this will work - can standards score negative points for unclear status on patent grants, or RAND terms? Surely positive criteria for openness in a metric would, taken as a whole, constitute an open definition? The creators hope that this approach by transcending debate about a single definition of open standard, the project will promote informed discussion about the value of standards in a way that encourages users to participate.

It’s also not clear to what extent Digistan’s interest will be focused on open formats for data and digital media, and how far that will reach out to “standards” in general - which might help simplify the debate over “one definition”. As open standards are the cornerstone of a viable free software approach to open data, an effort to produce a clear open definition that different interest groups can agree on and rally around would be welcome.

Among the founders of Digistan are some FFII representatives and, interestingly, Andrew Updegrove, the standards consortium lawyer and blogger whose writings were a deep mine of useful information about the OOXML controversy. Collectively they are asking people to sign up to their Hague Declaration in support of the following (less the preamble):

We call on all governments to:

1. Procure only information technology that implements free and open standards;
2. Deliver e-government services based exclusively on free and open standards;
3. Use only free and open digital standards in their own activities.

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It seems that OFCOM recently noticed the Internet and decided that some kind of public service intervention was necessary beyond BBC online’s existing offering. Projecting a budget of 100M, they embarked on a consultation process led by Andrew Chitty of ‘convergent media’ production company Illumina Ltd.

The room at OFCOM’s London Bridge offices was populated with execs from Yahoo, Google, and various Internet Service Providers (ISPs) as well as institutional players like the British Film Institute and the BBC. I think I was the only person there not representing a large corporation of some sort. I worked out what my civic duty was going to be when the ‘creative’ director at Wanadoo suggested that the PSP’s 100M budget should be given to the telcos and ISPs for their wonderful PSP-like job of carrying peer to peer network traffic, and nobody batted an eyelid. I spent the rest of the day desperately clawing the discussion back to what the ‘public service’ bit could mean.

While reading through the consultation website and skimming the full consultation document, I was pleasantly surprised to see that heavily watered-down mention was made of non-restrictive IP models:

“…it is unlikely that restrictive IP models will maximise public value in a way which is consistent with the overarching thesis of the paper, namely that new forms of public value can be found in the participatory media environment which are distinct from those in the traditional world of linear broadcasting.”

Whew! For the first few pages I really wasn’t sure we’d even get that far.

Reading through the wordy reiterations of the BBC and OFCOM’s mission statements in relation to one another and the Internet, I was also pleased to see a mention (however vague) of the Creative Commons concept.

Unfortunately, this is diluted in a load of projects bunched together in the ‘already-out-there’ section: . The strange groupings of web sites there set my alarm bells ringing, headlining narrowly UK-focused, mostly government-funded sites of dubious popularity and quality while relegating Wikipedia and Flickr to footnotes in the ‘other links’ section of the ‘User Generated Content’ category alongside (bizarrely) Ebay and the Human Genome Project.

In this blurry segue into a list of web sites, it became clear that the decision had already been made to turn the PSP into a funding agency that gives money to people to make British ‘new media projects’ - presumably with the overarching aims of ‘educating’ and ‘entertaining’ the ‘public’.

What I was really hoping for was a bit of strategic thinking: thinking that might actually recognise that the Net and the emerging universe of electronic devices that people use to communicate, create and use networks, and on which people build their own platforms is an infrastructure, not a fairground.

I was glad to see that one comment I’d made about these sites had made it into the report:

“What we see now are the equivalents of the 19th century end-of-the-pier zoetropes and nickelodeons, but somewhere in there is the new cinema”.

What a pity that it hadn’t been understood at all.

Deep breath.

‘Cinema’ is not a project. It is a complex and interlinked infrastructure, that was only allowed to develop because of the difficulty Edison Laboratories would have had in patenting the Kinetoscope in Europe. This was partly because Edison had borrowed from prior British inventions. In fact, it was two British inventors: Birt Acres and Robert Paul who extrapolated the Kinetoscope into the first 35mm camera - which they never managed to patent effectively. This didn’t stop a war raging over patents - led by the Pathe Freres company in Europe and Edison’s Motion Picture Patent Company (a.k.a. the ‘First Oligopoly’) in the US, patenting and controlling technological development, owning cinemas and developing monopolies throughout the industry. The judiciary of the US - through public interest patent-busting and anti-trust suits - finally broke the First Oligopoly in the early 1910’s, only for others to form, consolidating the power of the Film and global mass media industries in Hollywood as the Independent Studios and their star system emerged in the 30’s, leading to intense vertical integration of the whole film industry.

The British Government’s attempted intervention in this consolidation process was the 1927 Cinematograph Films Act, which put a quota on British Films being shown in UK Cinemas - leading to overproduction of low-quality low budget ‘quota-quickies’ in the run up to WWII, which put the final nail in the coffin of the British Film Industry. It’s been interestingly pathetic since then.

So the question is not which of these ‘projects’ is the next cinema? The question is - what underlies these projects? Who are the Edison Labs and Pathé Frères, MGMs, Paramounts, Foxes, RGOs and Loews of the Net? Who is defining and owning and shaping how the Net is used, understood and extended?

These days, it looks like the search engines. The Googles, the Yahoos, the information associators who have a semantic stranglehold on the Web and increasingly on other parts of the Net. This is not to mention the infrastructure owners: the DNS demagogues, the backbone bonapartes, the people who can hit the ‘off’ switch or start metering access to their network territories.

But what could a Public Service Publisher do about this? Surely it’s in the public interest to address the fact that the infrastructure we’re all using to do business, publish, and socialise online is dangerously similar to Cinema’s vertically integrated Hollywood-centric oligopolies?

Clearly, the PSP is going to do absolutely nothing:

“A further key role for the PSP would be in ensuring that search mechanisms for its content - and conceivably for all public service media content - become as efficient as possible. This would never extend to the development of a search engine, but it would involve working with search engine specialists and the major global and local players in search to establish tagging and discovery mechanisms to facilitate this.”

It sounds like we’re going to help them tighten the stranglehold they already have.

I’m not suggesting for a moment that we should be developing some kind of national search engine like the disastrous French ‘Quaero’ project. As online publishing and metadata usage becomes more sophisticated and widespread, the roles of the search engines will change - their original role of keyword indexing and ’scoring’ websites will be made less necessary by the improved semantic coherence of data on the Net - a.k.a. the ‘Semantic Web’.

But that technical development won’t necessarily loosen their grip. Using their existing market positions the search engines are working hard to consolidate their indexes, page-association ranks, user profiles and acquiring as much high quality data (scanned books, geodata etc.) as they can to insure their long-term market centrality. In an industry where innovative companies could once become giant killers overnight, they know that their ownership of what you could call the ‘means of association’ will have to be complete and coherent if they are going to protect their advertising revenues.

My response to the PSP consultation, emailed to the organisers soon afterwards doesn’t yet appear on the empty ‘responses’ section of the site. For the record, this is what I thought the PSP could do about this at the time:

• Researching and advising on best practice in metadata, exchange and archiving standards.
• Researching and advising on best practice in legal preservation and maintenance of publically funded IPR.
• Producing and maintaining high quality free educational materials for groups and individuals in how to publish their video/audio/text online and archive it well enough for it not to contribute to the uncatalogued backlog.
• Investing in open source software and shared IPR projects that are consistent with and facilitate the above goals.
• Research and develop systems for traversing, searching and making inferences from data generated by the aggregation of all this published material, and make that data, and those queries available via open APIs.

The last point is the crucial one: public interest in maintaining a lively and innovative environment on the Net would be served best by helping to build less centralised search and discovery systems, and making the data underlying those systems, and the systems themselves available to all (irrespective of nationality) using Public Domain licenses.

This would not be a project the PSP would have to start from scratch. There is already an inspiring and powerful world-wide movement to which they could add welcome legitimation and support. This was the final plea I made to the consultation group:

“Please, please *please*, don’t lets reinvent any wheels. There are some great projects and initiatives out there, mostly organised along very ad-hoc and non-institutional lines. If this PSP idea can be kept human-scale at the edges, can be smart and careful in how it invests money and time in things, it could become part of an existing international ecology of open source publishing platforms, advisory organisations and citizen-publishing initiatives.”

However, I’m sorry to say it looks to me like the PSP outlined in the OFCOM report isn’t just going to reinvent the wheel, it’s going to be a tax-payer funded factory for reinvented wheels. What I didn’t understand until yesterday, 25th January 2007, was who would be running the factory.

After fuming over the newly published PSP report, I went to see a presentation by the author Andrew Chitty from Illumina Ltd. at an ‘InSync’ event called ‘Rights will make you Rich?’ organised by Frank Boyd at 01zero-one in Soho: the centre of the UK Film Industry, such as it is.

Andrew Chitty’s presentation was about how the recent Communications Act (2003), which grants IPR rights to independent TV production companies, rather than to the commissioning broadcasters could be mirrored in agreements he, as a Vice Chair of PACT (the UK’s media industry lobby group) is negotiating with the publically funded BBC.

He also talked about how if a similar arrangement could be made with the putative PSP, it’s 100M jackpot could be used to part-fund projects to which independent production companies like Illumina Ltd. would then own international IP rights.

The last thing I heard him say, nodding complicitly to his BBC comissioner in the front row was ‘maybe this one will land us all on that private Greek island’. Then the red mist came down and I vaguely remember lashing out verbally in the ensuing debate before leaving to spare myself total apoplexy.

It is hardly surprising that the PSP report would be so skewed to the interests of the media industry lobby groups. After all, with the UK advertising and media industry in a recession - that structural change and viewer-group fragmentation onto the US-dominated Internet may make permanent - the public purse must look increasingly tempting.

What is so infuriating about this stitch-up is that it completely misses the real commercial opportunities in public service models on the Net.

The infrastructure of the Net as an offshoot of US federally-funded and therefore Public Domain defence research became a common carrier on which millions of businesses, supported by the universe of Free and Open Source software have been built. The disproportionate reach that creative entrepreneurs could have using this common infrastructure gave birth to the Yahoos and the Googles that are now beginning to enclose parts of it.

Sadly, it seems the PSP outlined in Andrew Chitty’s document will be producing a remake of the 1927 Cinematograph Films Act, funding the struggling UK film and TV industry to produce a quota of parochial ‘new media projects’, the IPR to which they may then exploit world-wide.

The challenge for the PSP, totally missed by this consultation, lies in addressing the strategic concerns of the Net as a global and national infrastructure; exploring and protecting the educational, commercial and societal possibilities of what ‘public service publishing’ might mean in this new context.

Saul Albert 26/01/2007

The opinions expressed above are not necessarily representative of the OKFN.

Many thanks to Rufus Pollock, Paula le Dieu, Gordon Joly, Nick Fry and Becky Hogge for great feedback, corrections and suggestions on drafts of this response.

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There are some down sides - 40 acts are not covered at all, law is only guaranteed included up until the end of 2001, and the data only has history of changes back to 1991 (details on status here).

Worse, from the point of view of OKF, the copyright/licensing situation is still not good. Now the data is free as in beer, can we have it free as in speech as well please? (More details on the Statute Law Database in my previous post on the subject)..

Even so, it is a fantastic new resource, and congratulations to everyone involved in creating it. Meanwhile, make sure you don’t bear armour, you maintain the dykes on the edges of your property, and you don’t write blank cheques.

Update: 2007-01-10 Thanks to the enquiries of Nick Holmes it has been confirmed that the original copyright notice was a mistake and the database will be fully open, available for anyone to use and reuse under the standard terms of the PSI click-use license. Hurrah!

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Where Next

The immediate point to make here is that on the issues we care about that the compromise allows for national law makers to exercise a lot of discretion on how they implement the Directive. From our point of view this means there’s plenty to fight for at the national level as INSPIRE will need to be ‘transposed’ into each national law. Any optionality is another chance to obtain more ‘open’ legislation as well as an opportunity to make the case for the social and commercial benefits of open geodata.

How Did We Do

All in all I think the campaign has been a tremendous success. Ok, so we didn’t manage to achieve a total u-turn in European geodata policy but

(a) We can do that next time

(b) Though not perfect, INSPIRE is an improvement over the status quo (non-open/unfree geodata is currently the norm across Europe)

What we did achieve with a campaign that was zero-budget, entirely dependent on spare bits volunteers’ time, and only started when the directive was already at second reading was:

1. A petition that was signed by over 7000 citizens from across the EU

2. Letters to MEPs and national ministries making the case for open geodata along with personal contact with many of the parties involved (MEPs, civil servants etc). This will stand us in good stead in the future and likely had some impact on the compromise that was eventually reached.

3. The dissemination and analysis of a large amount of information about what was happening (particular credit to you here Benjamin Henrion)

4. Link ups with other campaiging groups such as the UK’s freeourdata

So, all in all, I think there plenty to be proud of which should give us heart as we prepare ourselves to take the campaign on to the national level.

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This article about the Statute Law Database describes the ongoing story of a 13 year old government project to make consolidated UK law freely available. However, it has a worrying copyright status. Scroll down to the section “Free access to the laws that bind us?” and read the copyright notice on the pilot website. It isn’t clear yet exactly what restrictions on reproducing our laws the government will make using copyright, but it doesn’t look good.

It seems strange that we have to lobby and campaign to make the law of the land open knowledge. But it looks like we have to.

(Further information: Read the article linked to above, this article by Heather Brooke in the Guardian, and an earlier one in The Times)

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Thankfully, as had been hoped given the rapporteur’s line, the vote went well and we now need to focus on demonstrating to national governments the commercial and social benefits of freer access to state-collected geodata.

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Brazil earlier today mentioned a 3-step test for the public interest. We would like to point out Mr Chairman that such a test has already been put forward in the form of the recently released Adelphi Charter on Creativity, Innovation and Intellectual Property. This was produced, after extensive consultation, by a drafting committee consisting of distinguished academics, artists, and Noble Laureates under the auspices of the Royal Society of Arts. Principle nine of the charter states:

In making decisions about intellectual property law, governments should adhere to the following rules:

• There must be an automatic presumption against new areas of intellectual property protection, extending existing privileges or extending the duration of rights

• The burden of proof in such cases must lie on advocates of change.

• Change must be allowed only if a rigorous analysis clearly demonstrates that it will promote people’s basic rights and economic well-being.

• Throughout, there should be wide public consultation and a comprehensive, objective and transparent assessment of public benefits and detriments.

What does this mean in the relation to the draft treaty under consideration here?

Firstly, that the burden of proof lies squarely on those seeking new rights: on the broadcasters (and for webcasting: on webcasters). Secondly it means we should ask, for each area in which new rights are granted by the current treaty, what is the evidence that the benefits, for society as a whole, outweigh the costs.

In particular we should ask: What evidence is there that existing instruments, such as the Rome and Brussels convention, are insufficient to ensure adequate investment in broadcasting?

We should also ask: Has a thorough examination been conducted of the costs created by these new rights? For it is inevitable that the grant of any intellectual property right - which, let us not not forget, is at base a monopoly - while conferring benefits on some must impose costs on others. In this case those ‘others’ include:

• Existing rights-holders who may find that another exclusive right has been created that overlaps with their own.

• Innovators and producers of electronics hardware who now find their design decisions constrained by the need to comply with TPMs mandated by broadcasters.

• The general public who may find their access to material restricted particularly for archival and educational purposes.

To conclude: If new rights are to be granted clear evidence must be provided that the benefits to society, as a whole, outweigh the costs. Such evidence must not consist solely of the views of a narrow section of the possible stakeholders but be based on wide public consultation and a rigorous, transparent, and objective assessment. Where such evidence is lacking for a particular right the decision is straightforward: we should not grant it. Thank you for your attention.

[For more on the Broadcast Treaty see http://drn.okfn.org/taxonomy/term/32]

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Funding research and development for new drugs and treatments as well as the transfer of existing knowledge around the globe is essential to improving healthcare in the twenty-first century, especially for those in developing countries.

However the current global innovation system for healthcare, heavily based on TRIPs and ever stronger intellectual property rights, is in crisis, failing to deliver, not only for developing countries but also, increasingly, for high-income nations. As a solution to this growing problem the Medical Innovation Convention proposes a new, more efficient, approach to incentivizing and producing medical innovation.

Financing Medical Innovation: The Economics

To understand the issues surrounding the funding of medical R&D it is necessary to look at the economics very briefly. In economist’s jargon R&D is a public good, that is, what is produced by a single group or individual may be used by all. This suggests that if unregulated there would be very significant under-provision of R&D as all participants would have an incentive to do nothing and simply ‘free-ride’ on the efforts of others. For example if a new vaccine costs a $100 million to develop but can be produced for almost nothing everyone will hope that someone else will bear the cost of the research at which point they get the vaccine for free.

Thus to organize an optimal level of spending on R&D it is necessary to have some way of stopping this free-riding. There are two main approaches:

1. Coordinate contributions. For example through government funded research that is paid for by all taxpayers.
2. Create monopolies in innovations using intellectual property rights such as patents. By making an innovation excludable patents allow its owner to force users to pay thereby providing for a means to recoup the costs of development.

Both systems are currently used throughout the world, for example in the US the National Institute of Health (NIH) spends approx $27 billion a year while at the same time almost all new clinical drugs are patented and sold at monopoly prices. The problem is that the patent monopoly system, embedded as it is into the WTO TRIPS agreement, has come to dominate discussions of drug pricing and medical R&D at an international level. This is problematic because:

Marketing monopolies are … inefficient. Only a small fraction of the high prices is reinvested in research and development, and most of this on non-innovative ‘me too’ products for chronic diseases that afflict high-income patients [it is estimated that about 10-15% of drug sales goes back into to R&D]. Very little private R&D is invested in basic research, public goods such as the Human Genome Project (HGP) or Medline, the development of vaccines, or higher priority medicines, such as new treatments for malaria. Higher IPR protection for products is also associated with a number of other problems, including excessive secrecy and anti-competitive barriers to follow-on innovation.

The massive investments in marketing medicines protected by patents and other exclusive rights are not only wasteful, they are also often associated with inappropriate use of products arising from fraudulent or unethical practices that skew the evidence and incentives that determine which medicines are prescribed. [Love and Hubbard 2004]

The Medical Innovation Convention

The Medical Innovation Convention proposes solving the free-rider problem by coordination instead of by monopoly IP rights. The Convention sets out a scheme by which each signatory country commits to do a set amount of medical R&D per year (dependent on wealth). In this way the Convention seeks to decouple the end, funding of R&D, from the means by which this achieved. For example in the current draft a country could meet its R&D commitments by, among other methods, buying patented pharmaceuticals, government or charitably funded work, and innovation ‘prizes’.

To give an example of what this flexibility means consider a hypothetical country named Kanukatai. Let us suppose that the calculated contribution rates are: 15% for patented medical products, 85% for innovation prizes and 100% for direct government spending (these numbers are intended to reflect the proportion of money spent that actually results in R&D). Suppose also that the Kanukataians spend $1 billion on patented medical products, and their Government allocates another $1 billion in prizes and another $1 billion in direct research. Then the Kanukatai will have spend a weighted total of $2 billion on medical innovation. This would then be compared against their obligations under the Convention and any net position resolved in a suitable manner (for example contribution to a central fund).

The convention also attempts to deal with the skewed priorities of current healthcare R&D. It seeks to provide a method by which projects with high public returns but low private ones will be funded. This is done in in a subsection relating to, so-called, ‘priority’ medical research which seeks to target currently underfunded areas such as vaccine development, open public databases and research tools, and the preservation and dissemination of traditional medical knowledge.

References and Further Information

love_ea_2004 Make Drugs Affordable: Replace TRIPs-plus by R&D-plus; Love, J.; Hubbard T; Bridges June 2004 http://www.ictsd.org/monthly/bridges/BRIDGES8-6.pdf

mic Medical Innovation Convention; Current working drafts of the Medical Innovation Convention (also known as the ‘Big’ treaty) may be found at http://www.cptech.org/workingdrafts/rndtreaty.html

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