A Statement To The UK Intellectual Property Office On The Question Of Defamation In Sections Of The Response To A Pubic Consultation Submitted 21 March

2012.

Andrew Norton Norton P2P Consulting 13th August 2012

General Statement
In dealing with allegations of libel in the UK, there are no hard-and-fast defences that nullify a claim, only affirmative defences should such a claim be made. In expressing concern over potentially libellous statements made by myself in the consultation on Collection Societies, submitted in March 2012, the IPO has asked me to clarify statements if I have additional supporting evidence. As the author of those statements, I stand 100% behind them, and am willing to fight any such defamation claims which may be raised. However, the IPO has raised concerns over they themselves being targeted in a defamation suit for my statements, as publisher. Under Godfrey v Demon internet Services, non-removal of a statement when informed of the potentially libellous nature would likely result in a claim of libel also being entered against the IPO. This appears to be compounded by Bunt v Tilly & Ors, where knowledge of potentially defaming content may imbue the publisher with liability for same. As such, the position (and the expressed concern) of the IPO is acknowledged. The majority of the claims made are based on supporting evidence that was included in the submission. The majority of evidence was more than a year old, and thus can no-longer be subject to libel claim itself, (section 4A(a) of the Limitation Act 1980). As a result, the referenced works can be considered non-defamatory, if from 2010 or earlier. As an affirmative defence, fair comment is recognised in libel cases. Branson V Bower (2002) stated The comment must be upon facts truly stated. A commentator must not deliberately distort the true situation. Comments made are indeed based upon truly stated facts, and includes the facts in context in the many of the specific cases. The rest of the cases refer mainly to earlier stated evidence. Additionally, Lord Diplock stated in summing up to a jury in Silkin v Beaverbrook Newspapers Ltd. and Another (1958) Would a fair-minded man holding strong views, obstinate views, prejudiced views, have

been capable of making this comment? If the answer to that is yes, then your verdict in this case should be a verdict for the defendants.
My view is that any fair-minded man, having read the evidential links provided (and especially after the additional evidence provided in this document) would reach the same conclusions. While the question of malice can be raised, and would indeed defeat a defence of Fair Comment, in Albert Cheng v Tse Wai Chun (2000), Lord Nicholls of Birkenhead NPJ noted To summarise, in my view a comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. As noted above, I stand solidly behind the views communicated both here and in the consultation response. The intent of the response was to inform and to raise awareness of well reported actions that Norton P2P Consulting response to UK IPO On consultation response redaction issues Page 2/15

were already publicly known, and to ensure these actions were noted and recorded in association with the public consultation. There is then the question of Qualified Privilege. This allows for potentially defamatory statements to be made between parties, when there is a mutual interest between them, and there is a proven duty to impart and receive them. Thus, statements made in my response and sent to the IPO would be covered under Qualified Privilege. No defamation claim would thus exist, were the response sent to the IPO, and never publicly published. This is because as the IPO you would definitely have a shared interest with myself in the opinions and actions of Collection Societies, and as a Government Body, it would be my duty to impart them to you. The question then arises if qualified privilege extends to the publication of consultation submissions. If the matter of mutual interest to the public and the IPO is the view on collection societies given in open consultation, and it would be your duty to impart this, as a responsible government body, especially in light of its impact on matters of legislation or policy. There is a duty to inform the public of evidence when formulating policy, especially when it is involved in the policy-making process. This is indeed parallel to the Reynolds defence (from Reynolds v Times Newspapers Ltd.), where a journalist has a duty to publish an allegation even if it turns out to be untrue. While this has not been tested in a court of law to my knowledge, those I have consulted can find no reason why it would not succeed as a defence. For the purposes of limitations; the unedited, complete response was first published and made 1 accessible to the public on March 22, 2012. This situation where content in the public interest may be subject to defamation claims (spurious or otherwise) would appear to have been recognised as a problem. Section 4 of the proposed Defamation Bill (HC Bill 51 2) would appear to address this very issue and allow it as a responsible publication on matter of public interest. Indeed this takes the Reynolds defence mentioned above and expands it, removing ambiguities about applicability as a defence. It would be hard to see how publication of consultation responses would not be encompassed by this section. The passage of this bill is expected before the of Additionally, Article 10 of the European Convention on Human Rights may apply, as a restriction on imparting information and ideas, by public authority. While protection of reputation (per the second part) is an allowable basis for restriction, attempting to protect the already scarred and/or damaged reputations of collecting societies (as evidenced by the well-publicised cases listed here) by redacting justified public comment, would amount to a disproportionate interference with freedom of expression. As a closing note, where references are made to a statement being defamatory, it refers to it being actionable under the English law of defamation.
3

1 2

http://www.ktetch.co.uk/2012/03/consultation-response-to-uk-ipo.html http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0051/cbill_2012-20130051_en_2.htm#pb2-l1g4 3 http://conventions.coe.int/treaty/en/Treaties/Html/005.htm

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Specific Points at Issue

For the clarification of the assertions listed and redacted, I shall deal with each in order and reference. First of all, the response to question 22, broken down by point. 1) In the past few years, there have been reports of UK Collection societies calling up small businesses, and threatening them if they hear music in the background (http://www.techdirt.com/articles/20090202/0128383597.shtml), The initial source linked there goes to Techdirt, a well-respected independent news site, that deals 4 with these topics. It sources a link to the Times Online however; it is now behind a paywall. It was 5 also referenced by DigitalJournal where they quote the British Chamber of Commerce as feeling increasingly hounded by the PRS and regard the PRSs [sic] tactics as money grabbing. Evidence strongly supports the statement as being substantially true, and thus not actionable. 2) carollers, charities (http://torrentfreak.com/charity-forced-to-pay-copyright-police-so-kids-cansing-071209/) have been targeted for fees This piece references a news piece by the newspaper-owned site, WiganToday.net, a production of Johnston Publishing, Ltd., and adherent to the PCC codes of practice (which includes accuracy). It features direct quotes by those affected, and references the facts having been made public on the radio, and at the Manchester Chamber of Commerce. In addition, the article quotes a representative of the PRS directly, who does NOT dispute the facts. In addition, the nearly five years in which the pieces have been published have resulted in no defamation claims against the publications that I am aware of. Given they have admitted the facts are as claimed, and have not sought to protest the portrayal as misleading in that time period, the suggestion that it be defamatory is not supported by the facts. 3) as have schools (http://torrentfreak.com/uk-copyright-cops-target-kids-schools-communitycenters-081015/). The piece there links to several sources, again all reputable news organisations, but the specific story 6 was from the Clydebank post where it references an after-school club, where the TV and CD player were put off-limits after a visit from the PRS. Again the PRS were contacted for comment, and they th did not dispute the facts before, during, or after publication on 15 October 2008. Since the Clydebank Post has almost certainly got a wider circulation than IPO Consultation responses any defamation claim would have been made at the time of contacting, or publication. In this, (and other cases presented here) as the same claims have already been published in a wider circulation to the public. As a result, even an actionable defamatory statement would almost certainly incur only de minimis damages or similar.

4 5

http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/music/article5581353.ece http://www.digitaljournal.com/article/265883 6 http://www.clydebankpost.co.uk/articles/1/29471

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Additionally, schools in Ireland were targeted by the Motion Picture Licensing Company, for licenses to play DVDs. It turned out, after consulting with the Irish Patent Office, that they had breached the 2000 Copyright Act 7 by attempting to collect money for licenses without registering. It was, again, 8 9 reported in multiple places, not just in the UK , but even in Germany .

4) Even people who sing to themselves have been targeted because theyre doing so at work (http://news.bbc.co.uk/2/hi/uk_news/scotland/tayside_and_central/8317952.stm) The referenced article by the BBC clearly states that the PRS *DID* threaten her with fines because she was singing at work. That they later decided that they were wrong only emphasises the point that was being made, that licences are often demanded when they should not be. In including this source link, I took care to choose one that had the full story, including the acknowledgement by the PRS that their demand was unreasonable and without basis. Further, that they later apologised for their actions could be considered a clear admission of fault. Had I wished to just cover the threat, I had other 10 11 12 sources I could choose, including the Daily Record , The Sun , and the Daily Mail . Again, the statements made in the consultation response are clearly supported by factual evidence and the admission of the PRS themselves (including the admission that they were over-reaching), and thus the inclusion of it would not, and could not be actionable through defamation. 5) and lets not forget their targeting of employers like Kwik Fit (http://news.bbc.co.uk/2/hi/uk_news/scotland/edinburgh_and_east/7029892.stm) Again, this is a widely published source referring to the well-publicised case between Kwik Fit and the PRS over music licenses. The case is listed as Performing Rights Society Ltd. against Kwik-Fit Group 13 Ltd. in the Scottish court system . As such, the fact claim, that PRS has targeted employers like Kwik Fit for licenses is substantiated by the associated supporting evidence as factually accurate, and further substantiated by the court document listed here in addition to a quick reference guide by the law firm 14 Pinsent Masons . Such facts presented are thus well known and in the public domain, and strongly supported by both Kwik Fit, and PRS (by virtue of being involved in litigation on the topic) and thus cannot by any serious or objective measure be deemed libellous. In addition, as a fair and accurate report of proceedings in public before a court anywhere in the world, this would be protected by qualified privilege, under Section 15 of the Defamation Act 1996. 6) and even the police (http://torrentfreak.com/police-chief-faces-high-court-anti-piracy-action120608/).

7 8

http://www.ispai.ie/legal/ie/2000-cr-act.pdf http://www.timesonline.co.uk/tol/news/world/ireland/article4882658.ece 9 http://www.inside-digital.de/news/10363.html 10 http://www.dailyrecord.co.uk/news/scottish-news/prs-threaten-gran-with-four-figure-bill-1039280 11 http://www.thescottishsun.co.uk/scotsol/homepage/news/2682878/Shop-gran-Sandra-Burt-needs-licence-totrill.html 12 http://www.dailymail.co.uk/news/article-1220423/Corner-store-worker-told-stop-singing-works--pay-licence.html 13 http://www.scotcourts.gov.uk/opinions/2007CSOH167.html 14 http://www.out-law.com/page-8537

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The referenced story refers to This is Lancashire 15 and its story on the topic. It directly mentions a writ attempt by the PRS against Lancashire Police, and its Chief Constable. There are further details, 16 including specifics from both sides, in a Lancashire Evening Post piece where both sides openly admit that the PRS is targeting the Police for license fees. Thus the statement has been admitted as factual by all parties referenced (and additional evidence of the factual nature would be available via the High Courts records if desired). As the truth has been admitted by both sides through involvement of the courts, this is not an actionable statement. In addition, as it also involves fair and accurate reporting of the actions of a court (specifically referencing a high court writ), aspects are again non-actionable due to qualified immunity as noted above. Interestingly, PRS will not charge for a license under certain circumstances , when music is publicly performed. This is done, at PRS discretion (their characterisation), and clearly shows that licensing is purely at the decision of the PRS. 7) Incidentally, The EU Court of Justice just ruled that in cases like these, there are no fees to pay (http://euobserver.com/871/115621#.T2cCyGfYteQ.twitter) The idea that a reference to a decision by a court could be in any way defamatory boggles the mind. Had the vague statement been made that The ECJ said PRS claims like these are all crap, and left it at that, then there would be the possibility of defamation, as the courts did not say that. However, the statement says just ruled that in cases like these, there are no fees to pay is substantiated and clarified by the included link, which even directly quotes the ruling as saying the patients of a dentist visit a dental practice with the sole objective of receiving treatment, as the broadcasting of phonograms is not a part of dental treatment. Which is applicable to the previously references cases where people dont use corner shops, police stations, or car repair centres for their choice of music. The statement is thus clearly substantiated by the evidence provided in the associated link. This is a very longwinded way of saying that this is clearly a fair and accurate reporting of proceedings in public before a court anywhere in the world, and thus is covered by qualified privilege. 8) Nor are abuses confined to UK collection societies. The term abuses might be considered prejudicial on its own, until the entirety of the previous paragraph (points 1-7 above) is taken into consideration. The ruling in 7 shows that legally, PRS has a questionable case at best in its pursuit of licenses. In 4 above they admit that they over-reached and apologised for their actions, which can easily be construed as an abuse, and an admission. In these contexts, the statement is clearly supported by the evidence, and would be a reasonable and justified conclusion.
17

15 16

http://www.thisislancashire.co.uk/news/2336965.print/ http://www.lep.co.uk/news/local/music-police-move-to-ban-force-stereos-1-74006 17 http://www.prsformusic.com/users/businessesandliveevents/musicforbusinesses/pages/doineedalicence.aspx# 8

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9)

Spanish group SGAE has been fined in the past for gate-crashing private events in the hunt for licensing fees (http://elpais.com/diario/2008/12/08/sociedad/1228690805_850215.html Spanish).

Has SGAE (Sociedad General de Autores y Editores) been fined for entering private events in an attempt to collect licensing fees? Yes. The Spanish data protection agency fined SGAE 60,101 for violating the privacy of a couple getting married in 2005, at La Doma, San Juan de Aznalfarache, 18 Seville. This was widely reported in Spanish media . As such, the fact that a fine was levied is easily verified as true (and if you contact the Spanish data protection agency, they will confirm the issuance of the fine in 2007), and thus the statement is not in any way libellous. In addition, as it is a report of actions undertaken by a government agency, it will also be covered by qualified privilege. 10) Belgian group SABAM wanted truck drivers to pay licenses because of the radios in their cabs (http://torrentfreak.com/copyright-police-want-truck-drivers-to-have-licensed-cab-music110327/) This was, again, a fact well reported in the Belgian press 19 and had the point responded to by 20 members of the Belgian government . Again, the statement made in the consultation is substantiated by the facts as truthful, and thus no claim of defamation would be pursued. 11) while they have also been caught out by one TV show claiming royalties for music that they not only dont represent, but which never existed.(http://torrentfreak.com/music-royaltysociety-collects-money-for-fake-artists-bathroom-equipment-and-food-110308/) This event was well publicised by the tech-media at the time, and the TorrentFreak article above provides a good English language translation (since the author of that piece is Dutch) but the raw 21 22 video footage, as aired on the EEN TV station in Belgium is available on the networks website Any claim would fail due to the overwhelming direct evidence provided in this episode. 12) Of course, the prize for showing how badly Collection Societies work has to go to GEMA, a Germany agency. Sonys CEO of international business, Edgar Berger gave an interview recently where he noted that GEMAs greed was costing them millions in YouTube licensing alone. Sony artists are blocked in Germany, and the reason, according to Berger is Its not because of us. You must direct this question to the German collecting agency GEMA; they licensed the copyright very restrictively. (http://www.welt.de/wirtschaft/webwelt/article13881492/Das-Internet-muss-frei-sein-nichtumsonst.html)

18 19

http://www.elmundo.es/elmundo/2008/12/07/cultura/1228662714.html |Spanish http://www.demorgen.be/dm/nl/996/Economie/article/detail/1241389/2011/03/25/Sabam-sluit-akkoord-metTransport-en-Logistiek-Vlaanderen.dhtml | Dutch 20 http://www.standaard.be/artikel/detail.aspx?artikelid=1937V2RP |Dutch 21 http://en.wikipedia.org/wiki/E%C3%A9n 22 http://www.een.be/programmas/basta/sabam-en-de-makro-artiesten | Dutch

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Die Welt is a mainstream German newspaper with a circulation of over 200,000 (a similar level to the Guardian) who published an interview with Edgar Berger and BBC News. The transcript linked above contains the following clear statement from Mr Berger We have licensed our content to market participants. You must direct this question to the

German collecting society GEMA, licensed the copyright very restrictively. We have thus lost millions in sales. This practice is the way with one of the main reasons why the digital music business in Germany is less pronounced.
The statement in the consultation response thus accurately portrays, and attributes statements made by Mr Berger, to the limits of translation. Thus Mr Berger has no actionable claim in regards to the reprinting of this statement. As Sonys CEO of international business, he is clearly in an unmatched position to correlate data regarding international performances and income from various sources. As such he can be considered an expert in the topic, with access to financial data that is not in the public domain. I have taken reasonable care to check attribution of the statement, and have no reason to believe that Mr Berger would make an actionable statement to a major news organisation. Nor am I aware of any claims of defamation, or steps to have the comments removed from the public record. As such it should qualify as an innocent publication. Additionally, The statement referenced was an opinion of loss, that was fair and honest, and the repetition of it is certainly in the public interest in this case. Thus it also qualifies as fair comment. Finally, as Sony is an international organisation, and Mr Berger was speaking publicly on behalf of the company, giving information to the public, it could be considered that it would be a statement of qualified privilege subject to explanation or contradiction (Schedule 1, section 9(1)(c) of the 23 Defamation Act 1996 ) 13) GEMA has even blocked noted copyright scholar Lawrence Lessigs recent TEDtalks video How the law is strangling creativity in Germany hows that for irony? (https://twitter.com/#!/lessig/status/180351028854661121) The tweet above is by noted scholar and law professor Lawrence Lessig included in the tweet is a link to an image showing the video in question being blocked by GEMA. Again the assertion in the consultation response is supported by the facts, including direct evidence included in the provided link; and I am hard-pressed to see how any sort of defamatory statement could be construed from what was written.
24

Now on to the subsequent redacted sections. 14) [Q30] Its a bullying experience for those that do not want to be part of their way of business, or who want to start out but have a contrary idea.

23 24

http://www.legislation.gov.uk/ukpga/1996/31/schedule/1 http://en.wikipedia.org/wiki/Lawrence_Lessig

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A 2009 survey of businesses undertaken by the British Chamber of Commerce (BCC) found that companies had a very poor view of the PRS. Over half rated their experience with them as poor or very poor compared with 6% rating good or very good. Comments submitted with the survey often included the words aggressive and threatening and one company said We don't require a licence but they don't seem to take no for an answer. 25 This would strongly support the assertion of bullying, which led the BCC to write to the thenCommunications Minister, Lord Carter on the subject. This link was accidentally omitted from the original consultation response. As for those with a contrary idea, A strong indication is that the PRS website misrepresents facts (and may do so internally as well) to try and license people who wish to avoid paying money to the PRS. 26 For instance, the PRS website defines public domain as A Musical Work or Sound Recording is in the Public Domain when the copyright has

expired. From the date that the copyright expires it is not controlled or owned by anyone. In the UK the songwriters copyright lasts for 70 years after their death (musical works) and the recording artists copyright lasts for 50 years after their death.(Emphasis mine)
If however, we refer to a source that is supposedly more knowledgeable about copyright than PRS (such as, say, the IPO) they have a different term length. Sound recordings are generally protected 27 for 50 years from the year of publication. . Such ignorance of basic facts (essential for their business), presented publicly, can only be taken as an example of sheer ignorance or of an attempt to mislead to expand license gathering operations. The surveys and statements clearly substantiate the sentence as submitted, along with enough concern for a business organisation to publicly issue statements and contact ministers over the conduct of PRS. While the statement was not sourced adequately in the initial consultation, with these additional clarifications, it is clear that the statement was not only justified, but fair comment, based on objective evidence provided both here, and in previous examples already cited. 15) [Q30] intimidate A company that was referred to as threatening and aggressive (see point 14 above) may well be considered intimidating. It is also a fair description of activities that can be described as man walks

into a building. Demands money for license. Threatens expensive legal action and fines if license fee not paid. Such cases are well documented above, and elsewhere, and thus intimidate is a term a
fair-minded person would probably agree with in the context of these actions. 16) [Q43] At present, many consider them to be in the same category as low-class debtcollectors, 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.
25

http://bcc.system7.com/zones/policy/press-releases_1/performing-rights-society-requires-urgentreview-says-bcc.html 26 http://www.prsformusic.com/users/recordedmedia/glossary/Pages/default.aspx 27 http://www.ipo.gov.uk/c-basicfacts.pdf

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The abovementioned survey by the BCC (point 15), and point 1 would support this claim. Rogue Traders and Watchdog often cover companies that act poorly in customer services, are aggressive, and/or charge excessively/unnecessarily. They are have also covered companies that have attempted to operate without the required government licenses (eg Corgi/Gas safe), and point 3 covers this very thing. The aforementioned examples are examples of this, and thus the comparison is appropriate. The statement is justified as being the opinion a fair-minded person might have when presented with the information. 17) [Q44] As noted in the answer to 22 above, what they do best is intimidation, lies, and deception. As noted in the statement, there are references to the examples given in question 22, now reproduced above as points 1-13.For specific references to intimidation, I refer you to points 1 and 15, for lies refer to point 4, and for deception, point 11 is fairly damming. While these are specific examples, the list in Q22 was not intended to be all-encompassing or exhaustive, but solely illustrative of a greater trend, again, reinforced by the BCC survey. 18) [Q44] Those that benefit from their methods of operation are the groups/organisations that get the major shares of the payouts and the company itself. Collecting societies have a long history of collecting royalties for music not represented by them (see 11). Additionally, a clear-english explanation of the methods used to determine royalty pay-outs was given in 2002 by Tom Flint in the publication Sound on Sound 28. He notes that royalties are calculated (with the exception of BBC Radio 1) using random sample-checks. Thus a song that was played every hour, except during sample time would receive no royalty credit at all, while a song that was ONLY played during sample time, would receive a significant royalty credit. It was a method that was preferential to big artists that got constant play, while ignoring smaller artists that did not get played during the sample time. Additionally, if the smaller artist is not a member of PRS, the royalty fee that PRS (incorrectly) collected would be distributed to the major artist, or kept by the company.
29 While the method of royalty calculation has changed slightly since then, to include more stations , the statement is an accurate representation of their past business practices, and was in force at least 30 31 until 2009, by the accounts of some . The deduction rate for administrative costs is also quite high, and supports the claim that the company is enriching itself (as does the rather large 23.8M in payroll for 2010)

Further, there are threshold amounts which artists are required to achieve before payment is sent. In 32 2006, the threshold amounts were raised by PRS with the effect that payments for artists earning smaller amounts may be significantly delayed. Meanwhile the amount is sitting in the PRS accounts, accruing interest which is not paid to the artist in question, but mingled with general funds.

28 29

http://www.soundonsound.com/sos/oct02/articles/diylabel2.asp https://www.prsformusic.com/creators/memberresources/PRSforMusicroyalties/prsroyaltysources/radiolocaldigi talinternet/Pages/radiolocal.aspx 30 http://routenote.com/blog/prs-performing-rights-scam/ 31 https://www.prsformusic.com/SiteCollectionDocuments/Membership/PRS_admin_rates.pdf 32 http://www.prsformusic.com/creators/memberresources/PRSforMusicroyalties/minimumpayments/Pages/prsmi nimumpayments.aspx

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Additionally, the references to GEMA earlier (12 and 13) show that some collection societies are not actually interested in the best wishes of the regular artists. When one of the major music publishers has problems with the collection society, that should indicate a significant problem, and a cautionary tale of collection societies over-reaching, and not looking out for the best wishes of the performing artists they claim to represent. Im fairly certain that Prof. Lessig is not represented by any collection societies, and thus the authority of GEMA to dictate rates and control distributions (point 13) and publications is questionable. As such the basis of the statement is fully justified by the evidence provided and would be a reasonable opinion of a fair-minded man presented with these facts. 19) [Q48] To expect to give companies with such bad reputations excessive time to leisurely change their practices into one that is acceptable to society is hardly fair, especially when these same companies demand instant compliance with their wishes. The full question asked if a year was enough time to put in place a code of conduct. Codes of conduct are only as effective as the collective members desire to adhere to them. Any company that had an interest in a code of conduct would have self-implemented one by now. Likewise with any company that has such poor public relations and has had its conduct brought to ministerial attention, would have introduced such a code already. That they have a bad reputation already has been previously established. That collection societys demand instant (or near-instant) compliance with its demands is also not in question. Thus the question of why a code of conduct should take a year to develop and put into practice is a reasonable one. A code of conduct should be put in place by government regulators and enforced strictly, and with the same time limits Collection Societies expect of others. Here it can only be considered a fair comment in relation to the prior references. 20) [Q49] Such societies are seen by many artists as unprincipled, only looking to rake in as much money as possible (see Sony & GEMA earlier). A society that starts to act in a responsible manner, would start engendering public trust and not be met with suspicion and disgust when out representing its members. This statement was again lacking in citations, and thus caution was perhaps warranted. However, the artist opposition to collection societies has resulted in the formation of organisations such as Younison. 33 The complaints listed in the Younison call for action () clearly support the statement above that artists consider such societies as unprincipled or wanting to maximise income; as does the earlier references to Sony and GEMA (12 and 13). The second statement is a natural conclusion from the first, and evidence already presented. It is a natural logical conclusion, and one that is supported by the nature of questions 48 and 49 (among others) which were enquiring about implementing a code of conduct. If there were no issues over the conduct of Collection societies, such a code would not need to be raised, or questioned. 21) [Q65] 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.
33

http://www.younison.eu/about

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Again, this is a natural conclusion that any fair-minded individual would come to after being exposed to the facts. Such societies have had many documented issues of abuse, intimidation, and attempting to collect where they may not have had any rights to do so. The first abuse is therefore a reference to the actions already documented, actions to which there have been little-or-no consequences, hence the term getting away. Any abuses which take place under the year proposed to bring the code in (a period when they know what will not be allowed, but is permitted then) would be the second abuses. To then question at a later date the requirement of a statutory code would be to invite dismantling or defanging of the codes, and a third chance to abuse things. That Collection Societies abuse their permission is an unquestioned fact, both in the evidence presented here, and though further evidence which can be discovered with minimal additional research. Indeed, perhaps the IPO office should conduct a consultation into the conduct of collection societies, as part of the code of conduct process, allowing members of the public, businesses and artists the ability to provide first-hand accounts of interactions with these organisations. 22) [Q106] Universal Music Group (UMG) The redaction here is rather bizarre, and shows an overly-paranoid approach that seems to have completely missed every technology news source in December. That UMG was responsible for the takedown of the video is not now, nor has it ever been in question. UMG openly admitted to the takedown in public statements, in legal filings, and the very takedowns themselves clearly and publicly stated that UMG the one taking the action. Ive already sent separate sources for this separately 34 but I am repeating here for completeness. UMGs statement that they can take down the video where it states:
35

"...Universal argues that its takedown is not governed by the DMCA in the first place. In a statement supporting Megaupload's complaint, CIO Kim Dotcom had stated "it is my understanding" that Universal had invoked the DMCA's notice-and-takedown provisions. But UMG says Dotcom got it wrong: the takedown was sent "pursuant to the UMG-YouTube agreement," which gives UMG "the right to block or remove user-posted videos through YouTube's CMS based on a number of contractually specified criteria." In other words, when UMG removes a video using YouTube's CMS, that might be a takedown, but it's not a DMCA takedown. And that, UMG argues, means that the DMCA's rule against sending takedown requests for files you don't own doesn't apply."
That references US court filings by UMG and also noted in a letter sent to YouTube by a UMG 36 lawyer and of course, the takedown notices specifically mentions infringement. Email received from YouTube 12/12/2011 3:41 PM

We have disabled the following material as a result of a third-party notification from UMG claiming that this material is infringing:
34
35 36

Email to Hamza.Elahi@ipo.gov.uk dated 2 August 2012

http://arstechnica.com/tech-policy/2011/12/umg-we-have-the-right-to-block-or-remove-youtube-videos/ http://ia700808.us.archive.org/26/items/gov.uscourts.cand.248875/gov.uscourts.cand.248875.14.5.pdf

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P diddy feat kanye west,chris brown - Megaupload song http://www.youtube.com/watch?v=EWeYXVezepE Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to prevent this from happening, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube's copyright policy, please read the Copyright Tips guide. If one of your postings has been misidentified as infringing, you may submit a counternotification. Information about this process is in our Help Center. Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material was disabled due to mistake or misidentification may be liable for damages. Sincerely, The YouTube Team
More sources include Time 37, CNET 38, and WIRED39. Clearly, it's well established that UMG was behind the takedown, they admit it in legal filings. Corroboration from all the players in the case in fact, along with many major news sources, removes any potential or possible doubt that this could in any way be considered libellous. As also noted multiple times previously, as court documents significantly prove the case, regardless of fair comment, this comment would be considered qualified privilege. While this is the smallest redaction, its also the longest response purely because it was by FAR the easiest to source, both from primary and secondary sources. Ten seconds with the search engine of your choice using the term megasong takedown provides numerous entries that clearly state Universal Music Group was responsible, fully sourced and attributed.

37

http://techland.time.com/2011/12/16/youtube-apparently-gives-universal-music-group-direct-access-to-videosfor-easy-removal/ 38 http://news.cnet.com/8301-1023_3-57344570-93/mystery-surrounds-universals-takedown-of-megauploadyoutube-video/?tag=txt;title 39 http://www.wired.com/threatlevel/2011/12/universal-megaupload-video/

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Conclusion
The redaction of Universal Music Group is what has led to a significant questioning of the entire redaction. There is an online phenomenon known as the Streisand effect 40 (), where the attempts to hide or remove information has the unintended consequence of actually promoting and publicising the information more widely. I track the public viewing of my consultation responses as seen on my own site. In 4 months, it has had more reads than any other consultation response I have authored since the initial Digital Britain Consultation in 2009. In addition, hundreds have read my piece explaining what was redacted, and 41 thousands more have heard about it through sites like Techdirt who ran news stories on the redaction, and brought public question of the impartiality of the IPO on this topic. The reason they ran the piece is because they were aware of the facts discussed, and the truthful nature of them. The evidence document, as noted in that article, asked for sources and links and these were provided. That such evidence was removed despite being factual (as reinforced in points 1-13 above) is questionable. However, once it had been done, any supporting evidence for all but one of the subsequent redactions (14-21) is now missing, and such statements would appear to be un-sourced speculation, and potentially defaming (although still probably covered by Fair Comment without the supporting evidence being published). Yet, with the context of the references included (as well as the omitted source for point 14, a mistake for which I take full responsibility) the statements can be appreciated in context, and would be understood to be fair criticism by any fair-minded man. Additionally that several points were removed despite being clear examples textbook definitions in the case of points 7 and 22 of qualified privilege also raises the question over the competency of the IPO counsel that raised concerns over libel, It also fuels speculation that the consultation was a whitewash, where no serious criticism of Collection Societies was to be permitted, and were any to be received, it was not to be made public. Finally, the redaction listed in point 22 also elicited significant questions as to motive, as the matter was extremely public, extremely easy to source and verify. Said redaction made no sense when it was first explained, and the sheer wealth of supporting evidence and easy verification elicits less satisfaction with the provided reason with every subsequent re-examination. Furthermore, I do take strong objection to part of the covering notice on the publication of responses.

in the course of reviewing the responses received, it became clear that a small number of respondents had advanced criticisms or inappropriately criticised the activities of others in the sector. The Government has now carefully reviewed the submissions to establish any potentially defamatory material and has redacted any inappropriate or defamatory comments.
40 41

http://en.wikipedia.org/wiki/Streisand_effect http://www.techdirt.com/articles/20120729/02544819867/uk-government-censors-copyright-consultationsubmission-about-how-awful-collection-societies-are.shtml

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The purpose of a consultation was understood to be a fact-finding enterprise, seeking input, experiences and judgements from the public-at-large. If criticism is not intended or permitted concerning the very subject matter of the consultation, then the point or merit of the consultation is questionable at best. Worse, to talk of inappropriate criticism and openly state that you have redacted any inappropriate comment undermines the consultation and turns it into a fraudulent waste of money. If the redacted inappropriateness restricted to personally abusive phrases, or to sections that were completely off-topic (such as responding to a question on collection societies by talking solely about unicorns) it would be understandable. However, to strike out sourced statements that deal with the topic-at-hand is clearly unacceptable. In addition, I still have not received any answer to the question I asked during the telephone call on August 2 2012, asking about procedures should I find any clams or assertions in the consultation responses that were demonstrably false. Is there a procedure, or a contact point for submitting this? In addition, should the discovered errors be significant in nature, would they lead to a re-examination of the IPOs response, or is it a case of its done, we have moved on? This is a very important point and one that is essential for moving forward with quality legislation, rather than crony legislation; where laws are based on factual evidence, and not the sham of democratic participation covering backroom deals made through private means. It is a topic that I, and my friends and colleagues around the world (which includes an increasing number of elected politicians) feel strongly about. While there is certainly a means of abuse, through a constant trickle of corrections and discoveries, may I suggest an alternate method that could be investigated for the future in an attempt to alleviate this? That of separating publication of responses from that of the government response, by publishing submissions with soon after receipt (as, for instance, practiced by OFCOM); allowing for public peer-review and permitting time for errors to be pointed out before the governments response is drafted (which would still be at the same point as before, the submission publications would just be moved forward significantly).

I hope this deals adequately with any lingering concerns that the UK Intellectual Property Office has concerning my consultation submission and its potential for libel actions; and I look forward to seeing the uncensored version published swiftly by your office. If you have any further concerns, or need further clarifications, evidence or legal references, do not hesitate to get in touch.

Andrew Norton Norton P2P Consulting

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