I want to pay more tax too

Some of the ‘super rich’ in the US are beginning to ask publicly why it is they pay so little tax.  For those of us less rich, but still with above average salaries, perhaps we should be asking the same.  In the UK the effective rate of tax is 32% for those on average pay and 40% for those on high pay, hardly a progressive system.  Yes government, please tax the super rich more, but tax me properly too.

I have just have read Stephen King fantastic article “Tax Me, for F@%&’s Sake!1 where he joins Warren Buffett in questioning why he, as part of the super rich, does not pay more tax.  He does give to charity, but argues that that this is not the same as paying tax, which is crucially abut citizenary.  This all falls out from statistics that show the richest in the US end up paying a far smaller percentage of their income than the average citizen.  Effectively King argues that the issue here is not about entitlement or rights, but responsibility.

King is talking about the super rich in the US and similar statistics in the UK show the richest 10% paying only marginally more taxes than the poorest 10%, and certainly less than the average tax payer.

However, the same arguments also apply to those who are not super rich, but on the better end of the income scale —  including me.

In recent years I have cut my income substantially by choosing to work part-time in order to (try to!) do more personal research, still some of my income falls into ‘higher rate’ tax — so by that measure I am well off2.

You might think that being in the higher tax threshold means you pay a lot more tax; after all the basic rate tax in the UK is 20% and the higher rate is 40%.  You might think that, but think again!  Even without tax avoidance measures used by the very rich or the fact that the poor tend to end up paying more indirect taxes such as VAT (purchase tax) and duty (on alcohol and fuel), still my marginal rate is only slightly higher than that of basic income.  I pay an effective marginal rate of 40%, but those on lower income in reality pay 32%, not the 20% that it says ‘on the tin’.

The reason for this is National Insurance.  For those not on the UK, this is an additional tax, started in 1911 and expanded in the 1940s to pay for health, pension and other welfare provision — just as you might take out a private health insurance, or pension, national insurance was intended to be a sort of pooled insurance arranged by government.  However unlike private insurance, it has always been redistributive — the rich pay more, but do not get proportionally higher benefits.

In the UK since the Thatcher years, but continued by subsequent Labour governments, there has been a gradual shift from ‘in your face’ income tax, to less visible taxes, notably National Insurance and VAT.  In 1978 National Insurance was at 6.75% (on income over a lower threshold) and the standard rate of VAT, paid on most basic goods and services you bought in shops, was 8%3.  Currently the equivalent figures are 12% for National Insurance and 20% for VAT.  That is the combined effect of these less visible taxes has more than doubled from 14.75% in 1978 to 32% today4.  Because these are flat rate taxes, they hit the poor as much as the rich.

However, it is worse than this first appears.  National Insurance has a maximum cut off point.  Above a certain point, you pay no more National Insurance … and crucially this point cuts in just before higher rate tax starts.  This means that in one’s pay cheque if you are earning an average wage you pay 32% of every additional pound in tax, whereas if your income is higher, over £40,000 or so, you pay 40%.

I’ll say this again, as it always seems unbelievable — in the UK, without any additional measures to reduce tax liability, the real difference between basic rate and higher tax is just 8%.

If then the person earning £15,000 buys a basketful of ordinary VAT goods, out of the 68p they have left they pay over 13p VAT, whereas the person with £50,000 income out the 60p in the pound they have left pay an additional 12p.  Adding the effect of VAT that makes the effective total rates of tax on an ordinary shopping basket at 45.6% for basic rate tax payers vs 52% for those on higher income.  In fact, even this is a little of a simplification, as some goods are zero rated (principally food) and some have additional duties (principally alcohol and fuel), but in fact this tends to make things worse as typically richer households have spending patterns that have a lower proportion of VAT and duty.

Like the US, the UK system is not progressive; so with Stephen King I say, “I want to pay more tax5.

In particular, take the lid of National Insurance, make me pay full National insurance on all my income.  At a conservative estimate this would be equivalent to the revenue of 5% VAT6 — if we all paid full NI, then either spending cuts could be less draconian, or the VAT rate could be cut by 5%, either of which would have a dramatic effect on those at the bottom of society for whom the pressing problem is not getting the best offshore tax break, but finding the next meal.

  1. Which he wrote in April, so I am a bit behind![back]
  2. Although you do have to be careful in using higher rate threshold as meaning ‘well off’, as the UK system is incredibly family-unfriendly.  Because tax is on an individual not household basis, if a couple earn £20,000 each they pay very little tax, but if one is not working — in particular if engaged in full-time child care — and one is earning £40,000, then that is heavily taxed.  This anomaly became apparent recently when the government proposed removing child-benefit, one of the few universal benefits, from those where one of the parents is paying higher rate tax. Strangely, when it comes to welfare benefits households become the unit! [back]
  3. See UK Tax History for historical rates of National Insurance and VAT.[back]
  4. See HM Revenue & Customs site for current NI and VAT rates.[back]
  5. And yes, I know that I can give to charity and indeed do tithe through Charities Aid Foundation and make other payments, but, as King argues, that is NOT the same as paying taxes.[back]
  6. I recall doing the calculations for this when the new government put up VAT some years ago, it was hard to get detailed figures for higher rate tax earnings, but made this estimate based on lower bounds of various brackets.[back]

open data: for all or the few?

On Twitter Jeni Tennison asked:

Question: aside from personally identifiable data, is there any data that *should not* be open?  @JenT 11:19 AM – 14 Jul 12

This sparked a Twitter discussion about limits to openness: exposure of undercover agents, information about critical services that could be exploited by terrorists, etc.   My own answer was:

maybe all data should be open when all have equal ability to use it & those who can (e.g. Google) make *all* processed data open too   @alanjohndix 11:34 AM – 14 Jul 12

That is, it is not clear that just because data is open to all, it can be used equally by everyone.  In particular it will tend to be the powerful (governments and global companies) who have the computational facilities and expertise to exploit openly available data.

In India statistics about the use of their own open government data1 showed that the majority of access to the data was by well-off males over the age of 50 (oops that may include me!) – hardly a cross section of society.  At  a global scale Google makes extensive use of open data (and in some cases such as orphaned works or screen-scraped sites seeks to make non-open works open), but, quite understandably for a profit-making company, Google regards the amalgamated resources as commercially sensitive, definitely not open.

Open data has great potential to empower communities and individuals and serve to strengthen democracy2.  However, we need to ensure that this potential is realised, to develop the tools and education that truly make this resource available to all3.  If not then open data, like unregulated open markets, will simply serve to strengthen the powerful and dis-empower the weak.

  1. I had a reference to this at one point, but can’t locate it, does anyone else have the source for this.[back]
  2. For example, see my post last year “Private schools and open data” about the way Rob Cowen @bobbiecowman used UK government data to refute the government’s own education claims.[back]
  3. In fact there are a variety of projects and activities that work in this area: hackathons, data analysis and visualisation websites such as IBM Many Eyes, data journalism such as Guardian Datablog and some government and international agencies go beyond simply publishing data and offer tools to help users interpret it (I recall Enrico Bertini, worked on this with one of the UN bodies some years go). Indeed there will be some interesting data for mashing at the next Tiree Tech Wave in the autumn.[back]

Status Code 451- and the burning of books

I was really pleased to see that Alessio Malizia has just started to blog.  An early entry is a link to a Guardian article about Tim Bray‘s suggestion for a new status code of 451 when a site is blocked for legal reasons.

Bray’s tongue-in-cheek suggestion is both honouring Ray Bradbury, the author of Faranheit 451, and also satirising the censorship implicit in IP blocking such as the UK High Court decision in April to force ISPs to block Pirate Bay.

However, I have a feeling that perhaps the satire could be seen, so to speak, as on the other foot.

Faranheit 451 is about a future where books are burnt because they have increasingly been regarded as meaningless by a public focused on quick fix entertainment and mindless media: censorship more the result than the cause of societal malaise.

Just as Huxley’s Brave New World seemed to sneak up upon us until science fiction was everyday life, maybe Bradbury’s world is here with the web itself not the least force in the dissolution of intellectual life.

Bradbury foresaw ‘firemen’ who burnt the forbidden books, following in a long history of biblioclasts from the destruction of the Royal Library of Ashurbanipal at Ninevah to Nazi book burnings in the 1930s.  However, today it is the availability of information on the internet which is often used as an excuse for the closure of libraries, and publishers foresee the end of paper publication in the next five years.

Paradoxically it is the rearguard actions of publishers (albeit largely to protect profit not principle) that is one of the drivers behind IP blocking and ‘censorship’ of copyright piracy sites.  If I were to assign roles from Faranheit 451 to the current day protagonists it would be hard to decide which is more like the book-burning firemen.

Maybe Faranheit 451 has happened and we never noticed.

Gordon’s example to us all

Last night I read a BBC article on Gordon Brown’s earnings since he stopped being Prime Minister a few years ago.  I felt a lump coming to my throat as I read the story.  Ex-PMs typically have lucrative post-government careers with lecture tours and the like.  Gordon Brown has similarly earned 1.4 million pounds in lecture fees and book royalties, but then given it all away.

In the run up to the General Election in 2010 I wrote how I gradually warmed to Gordon Brown during the campaign as it became increasingly clear that he was a man of true integrity.  This is another indication of that integrity, and utterly amazing to see in the modern world.

Of course he was not pretty like David Cameron or Nick Clegg, nor could he control his irritation when faced with objectionable, if popular, views.  In short, not a showman, nor a celebrity, not slick, not ‘political – just a genuinely good man.

It is sad that that is not sufficient to impress the 21st-century voter.

Lies vs. facts: the 26k benefits ceiling

In the UK the government is proposing a ceiling on benefits of £26,000. This sounds a large figure, indeed it is the median income, so seems reasonable that someone out of work should not receive more than the average working person. The press is, of course, polarised on the issue, as is the Church of England.

I was particularly interested in the coverage in last Wednesday’s Daily Mail, partly as this was where the former Archbishop of Canterbury chose to issue a statement about the issue, and partly because I was on a BA flight and it is one of the free newspapers! This issue of the Mail contained an article, “The hard workers who are proud not to claim”1, detailing the circumstances of three different working and tax-paying households living below or close to the proposed £26,000 limit, who can’t understand why they are working and paying taxes to support others to live on more than them.

I wondered about the truth behind these stories.  As you might imagine, the Mail’s stories were, to be generous, disingenuous, and most probably misleading, both to their readers and those they interviewed. When you work out the actual figures and facts behind the stories, things turn out rather differently then they were projected.

The issue of the proposed £26,000 benefits ceiling was particularly hot in the news after the House of Lords made radical amendments to the bill. The opposition in the Lords to proposed benefits reforms comes not just from the Labour benches, but includes some LibDems and Conservatives, and, vocally, several Church of England bishops2.

Lord Carey, the former Archbishop of Canterbury, weighed into this debate chastising his fellow bishops in the Lords, on the grounds that the weight that the national debt lays on our children is a major moral issue and the runaway benefits bill is a crucial part of controlling this.

There are of course differing views on how fast and how radically we should be attempting to cut national debt and how this should be accomplished. What is notable is that Carey chose to make this statement in the Daily Mail. My guess is he chose the Mail, rather than, say, the Times or the Telegraph (let alone the Independent or Guardian, who might have published it alongside contrary views), is that the Mail is much more a paper for ordinary Middle England folk, the ‘squeezed middle’, who feel they are paying the bulk of the taxes that fund the burgeoning benefits budget.

Whilst the ‘quality’ newspapers push their own particular viewpoint, they do follow a certain journalistic ethic, and normally within their articles you find the full facts, as they know them. Now, this is sometimes very deeply buried, to the point of disinformation, but is at least present; the careful reader can see the counter arguments through the opinion.

The Mail has no such scruples; it is unashamedly a newspaper of persuasion not information.

Given this, however much the Mail is targeting a particular demographic, Carey’s choice seemed misguided or naive.

In particular, in the same copy as Carey’s statement, there was the article describing the three households, all in tight economic circumstances, but who are working, paying tax to fund benefits, but not on benefits themselves. This is, in fact, excellent journalism, cold figures are hard to comprehend, real examples can convey the truth better than abstractions.

One household was a single woman, Rachel, living on her own; the second, Lauren and David, an engaged couple with a baby living with one of their parents; and the third, Emma and Darren, a married couple with two small twins, living in a rented house. They all had net incomes below or close to the proposed £26,000 benefits cap, and in each case the description ends with a personal statement, which expresses their frustration that, while they manage to cope on their income, why should people need £26,000 when not in work:

I don’t understand why people would need to claim more than £26,000 in benefits if I can live comfortably on this“, Rachel

It’s crazy that people say they can’t live of £26,000. People need to make sacrifices like the rest of us have.“, Lauren

“It makes us very angry that my husband works so hard and pays tax on his income, which goes to pay the benefits bills of all those people who don’t work and who receive more money than us.“, Emma

What the Mail reporters clearly failed to tell any of these families is what they would be receiving on benefits if they were suddenly made redundant and out of work.

Just to see I put each of these people’s circumstances into the government benefits calculator and a housing benefit calculator3.

Rachel, lives alone with £16,000 gross income and £13,000 net income. She describes rent (£500) and bills taking up most of her income, but leaving her with £250 a month for “recreational and leisure activities“, allowing her to “live comfortably“. If she lost her job her benefits including housing benefit to contribute to rent would total £9,774 per annum (£53.45 job seekers allowance, £19.38 council tax rebate4, £115.30 housing benefit). That is just what she describes as her basic bills with none of her recreation or leisure. I’m sure if asked whether she would be happy to live on this, her answer would be different.

Lauren and David fare worst; they have a gross salary of £33,000, with a net income of £27,560 (including child benefit and child tax credits). If they were both to lose their job, they would take home a total of £200.61 a week, around £10,500 per annum5. It was Lauren who said, “People need to make sacrifices like the rest of us have“. If the Mail reporter had explained to her that she would have to cope on 2/5 of their current take-home money would she feel the same?

It is the last family however, that does appear to highlight anomalies in the benefits system. Darren works in public transport and has a gross pay of precisely £26,000, leaving Emma and Darren with a take home pay of £21,608 (including child benefit). If Darren lost his job (or found himself unable to work as he has a medical condition) and both of them registered as job seekers (although Emma is currently looking after the children at home) then they would receive a total of £24,295 a year (just over £15,000 of this is basic benefit, the rest council tax relief6 and housing benefit), more than their current take home pay.

The reason for this disparity is that Emma and Darren do not attempt to claim benefits: “We are proud that we’re not on benefits, although sometimes it can be really hard“. In fact they would be eligible for substantial housing benefits7, which would presumably make all the difference for them and their children.

The shame of being on welfare runs deep, and, assuming Emma and Darren are Mail readers, no doubt fanned by the constant stories of welfare scroungers and the ‘feckless’. They quite rightly want to instil an ethic of hard work into their children, but do not feel able to claim benefits, which they will have contributed to through tax and national insurance throughout their previous working lives, in order to help as they bring up those same children now.

Interestingly, they are happy to accept child benefit (and I assume child tax credit, although not explicitly mentioned), and when the children are of school age will not send them to a fee-paying school, but happy to send them to a state school, effectively an educational ‘benefit’ of around £16,000 a year, let alone insist on paying for hospital and doctors fees for delivery of the twins and subsequent medical care.

The difference is that these benefits, allowances, and services are universal, and so seen as ‘rights’ as a taxpayer, even if, as in the case of this family, you are a net beneficiary.

This very much strengthens the case for maintaining child benefit as a non-means tested benefit. In general, many benefits are not claimed, whether through pride, principles or ignorance. The one exception is child benefit, which is both universally accepted and well targeted8.

Maybe if appraised of the full facts each of the people interviewed by the Mail might still feel the same, particularly Emma and Darren. Maybe too Mail readers would feel the same if presented with the truth. But clearly the Mail does not trust its readers to make up their own minds if given the full facts, and sadly Lord Carey has leant his weight behind this deliberate disinformation; unintentionally, but very persuasively helping to mislead the public.

  1. “The hard workers who are proud not to claim”, Daily Mail, Wednesday, January 25, 2012, p. 7.[back]
  2. Whether they should be in the second house in the first place is another issue![back]
  3. I used the Tonbridge & Malling Bourough Council’s web site as this has an online housing benefit calculator.  While currently housing benefit is similar across the country, this may change in the future with government plans for ‘localising support‘, the potential impact of which has been under-reported.[back]
  4. For Rachel on a one bedroom flat I estimated a council tax bill of £1000.[back]
  5. This figure is particularly low as  they live with parents.  While the government makes strong statements about family values, there are equally strong disincentives to support close family.  If Lauren and David were out of work, but with friends rather than parents, they would be able to pay rent to contribute to household costs, which they could then claim against housing benefit.  Furthermore, if a grown-up child receives cash support from parents, it is regarded as income for the calculation of benefits.[back]
  6. For Emma and Darren I estimated an annual council tax bill of £1500.[back]
  7. Housing benefit is perhaps the greatest cause of anomalies in the systems. Even Boris Johnson was against a cap in housing benefit, as the proposed, albeit apparently high, limit would still make large areas of London (not just the fancy bits!) no go areas for anyone on an average wage including nurses, transport workers, etc.. The situation gets even more complicated with those with a mortgage, as mortgage interest is deemed a cost for benefits calculation when you are out of work, but not when you have a job.[back]
  8. More broadly there is a minority suggestion (I believe only the Green Party in the UK support this) to replace all tax allowances and basic benefits, with a universal wage or ‘basic income‘, effectively an amount for every adult and child, deemed high enough for basic survival (probably close to current basic benefit levels). Indeed the amount you gain through the personal tax allowance, the amount you can earn without paying tax, is very close to a single person’s job seekers allowance, so this is very nearly a ‘zero sum’ for tax payers without children.[back]

Wikipedia blackout and why SOPA winging gets up my nose

Nobody on the web can be unaware of the Wikipedia blackout, and if they haven’t heard of SOPA or PIPA before will have now.  Few who understand the issues would deny that SOPA and PIPA are misguided and ill-informed, even Apple and other software giants abandoned it, and Obama’s recent statement has effectively scuppered SOPA in its current form.  However, at the risk of apparently annoying everyone, am I the only person who finds some of the anti-SOPA rhetoric at best naive and at times simply arrogant?

Wikipedia Blackout screenshot

The ignorance behind SOPA and a raft of similar legislation and court cases across the world is deeply worrying.  Only recently I posted about the recent NLA case in the UK, that creates potential copyright issues when linking on the web reminiscent of the Shetland Times case nearly 15 years ago.

However, that is no excuse for blinkered views on the other side.

I got particularly fed up a few days ago reading an article “Lockdown: The coming war on general-purpose computing1  by copyright ativist Cory Doctorow based on a keynote he gave at the Chaos Computer Congress.  The argument was that attempts to limit the internet destroyed the very essence of  the computer as a general purpose device and were therefore fundamentally wrong.  I know that Sweden has just recognised Kopimism as a religion, but still an argument that relies on the inviolate nature of computation leaves one wondering.

The article also argued that elected members of Parliament and Congress are by their nature layfolk, and so quite reasonably not expert in every area:

And yet those people who are experts in policy and politics, not technical disciplines, still manage to pass good rules that make sense.

Doctorow has trust in the nature of elected democracy for every area from biochemistry to urban planning, but not information technology, which, he asserts, is in some sense special.

Now even as a computer person I find this hard to swallow, but what would a geneticist, physicist, or even a financier using the Black-Scholes model make of this?

Furthermore, Congress is chastised for finding unemployment more important than copyright, and the UN for giving first regard to health and economics — of course, any reasonable person is expected to understand this is utter foolishness.  From what parallel universe does this kind of thinking emerge?

Of course, Doctorow takes an extreme position, but the Electronic Freedom Foundation’s position statement, which Wikipedia points to, offers no alternative proposals and employs scaremongering arguments more reminiscent of the tabloid press, in particular the claim that:

venture capitalists have said en masse they won’t invest in online startups if PIPA and SOPA pass

This turns out to be a Google sponsored report2 and refers to “digital content intermediaries (DCIs)“, those “search, hosting, and distribution services for digital content“, not startups in general.

When this is the quality of argument being mustered against SOPA and PIPA is there any wonder that Congress is influenced more by the barons of the entertainment industry?

Obviously some, such as Doctorow and more fundamental anti-copyright activists, would wish to see a completely unregulated net.  Indeed, this is starting to be the case de facto in some areas, where covers are distributed pretty freely on YouTube without apparently leading to a collapse in the music industry, and offering new bands much easier ways to make an initial name for themselves.  Maybe in 20 years time Hollywood will have withered and we will live off a diet of YouTube videos :-/

I suspect most of those opposing SOPA and PIPA do not share this vision, indeed Google has been paying 1/2 million per patent in recent acquisitions!

I guess the idealist position sees a world of individual freedom, but it is not clear that is where things are heading.  In many areas online distribution has already resulted in a shift of power from the traditional producers, the different record companies and book publishers (often relatively large companies themselves), to often one mega-corporation in each sector: Amazon, Apple iTunes. For the latter this was in no small part driven by the need for the music industry to react to widespread filesharing.  To be honest, however bad the legislation, I would rather trust myself to elected representatives, than unaccountable multinational corporations3.

If we do not wish to see poor legislation passed we need to offer better alternatives, both in terms of the law of the net and how we reward and fund the creative industries.  Maybe the BBC model is best, high quality entertainment funded by the public purse and then distributed freely.  However, I don’t see the US Congress nationalising Hollywood in the near future.

Of course copyright and IP is only part of a bigger picture where the net is challenging traditional notions of national borders and sovereignty.  In the UK we have seen recent cases where Twitter was used to undermine court injunctions.  The injunctions were in place to protect a few celebrities, so were ‘fair game’ anyway, and so elicited little public sympathy.  However, the Leveson Inquiry has heard evidence from the editor of the Express defending his paper’s suggestion that the McCann’s may have killed their own daughter; we expect and enforce (the Expresss paid £500,000 after a libel case) standards in the print media, would we expect less if the Express hosted a parallel new website in the Cayman Islands?

Whether it is privacy, malware or child pornography, we do expect and need to think of ways to limit the excess of the web whilst preserving its strengths.  Maybe the solution is more international agreements, hopefull not yet more extra-terratorial laws from the US4.

Could this day without Wikipedia be not just a call to protest, but also an opportunity to envision what a better future might be.

  1. blanked out today, see Google cache[back]
  2. By Booz&Co, which I thought at first was a wind-up, but appears to be a real company![back]
  3. As I write this, I am reminded of the  corporation-controlled world of Rollerball and other dystopian SciFi.[back]
  4. How come there is more protest over plans to shut out overseas web sites than there is over unmanned drones performing extra-judicial executions each week.[back]

changing rules of copyright on the web – the NLA case

I’ve been wondering about the broader copyright implications of a case that went through the England and Wales Court of Appeal earlier this year.  The case was brought by  the NLA (Newspaper Licensing Agency) against Meltwater, who run commercial media-alert services; for example telling  you or your company when and where you have been mentioned in the press.

While the case is specifically about a news service, it appears to have  broader implications for the web, not least because it makes new judgements on:

  • the use of titles/headlines — they are copyright in their own right
  • the use of short snippets (in this case no more than 256 characters) — they too potentially infringe copyright
  • whether a URL link is sufficient acknowledgement of copyright material for fair use – it isn’t!

These, particularly the last, seems to have implications for any form of publicly available lists, bookmarks, summaries, or even search results on the web.  While NLA specifically allow free services such as Google News and Google Alerts, it appears that this is ‘grace and favour’, not use by right.   I am reminded of the Shetland case1, which led to many organisations having paranoid policies regarding external linking (e.g. seeking explicit permission for every link!).

So, in the UK at least, web law copyright law changed significantly through precedent, and I didn’t even notice at the time!

In fact, the original case was heard more than a year ago November 2010 (full judgement) and then the appeal in July 2011 (full judgement), but is sufficiently important that the NLA are still headlining it on their home page (see below, and also their press releases (PDF) about the original judgement and appeal).  So effectively things changed at least at that point, although as this is a judgement about law, not new legislation, it presumably also acts retrospectively.  However, I only recently became aware of it after seeing a notice in The Times last week – I guess because it is time for annual licences to be renewed.

Newspaper Licensing Agency (home page) on 26th Dec 2011

The actual case was, in summary, as follows. Meltwater News produce commercial media monitoring services, that include the title, first few words, and a short snippet of  news items that satisfy some criteria, for example mentioning a company name or product.  NLA have a license agreement for such companies and for those using such services, but Meltwater claimed it did not need such a license and, even if it did, its clients certainly did not require any licence.  However, the original judgement and the appeal found pretty overwhelmingly in favour of NLA.

In fact, my gut feeling in this case was with the NLA.  Meltwater were making substantial money from a service that (a) depends on the presence of news services and (b) would, for equivalent print services, require some form of licence fee to be paid.  So while I actually feel the judgement is fair in the particular case, it makes decisions that seem worrying when looked at in terms of the web in general.

Summary of the judgement

The appeal supported the original judgement so summarising the main points from the latter (indented text quoting from the text of the judgement).

Headlines

The status of headlines (and I guess by extension book titles, etc.) in UK law are certainly materially changed by this ruling (para 70/71), from previous case law (Fairfax, Para. 62).

Para. 70. The evidence in the present case (incidentally much fuller than that before Bennett J in Fairfax -see her observations at [28]) is that headlines involve considerable skill in devising and they are specifically designed to entice by informing the reader of the content of the article in an entertaining manner.

Para. 71. In my opinion headlines are capable of being literary works, whether independently or as part of the articles to which they relate. Some of the headlines in the Daily Mail with which I have been provided are certainly independent literary works within the Infopaq test. However, I am unable to rule in the abstract, particularly as I do not know the precise process that went into creating any of them. I accept Mr Howe’s submission that it is not the completed work as published but the process of creation and the identification of the skill and labour that has gone into it which falls to be assessed.

Links and fair use

The ruling explicitly says that a link is not sufficient acknowledgement in terms of fair use:

Para. 146. I do not accept that argument either. The Link directs the End User to the original article. It is no better an acknowledgment than a citation of the title of a book coupled with an indication of where the book may be found, because unless the End User decides to go to the book, he will not be able to identify the author. This interpretation of identification of the author for the purposes of the definition of “sufficient acknowledgment” renders the requirement to identify the author virtually otiose.

Links as copies

Para 45 (not part of the judgement, but part of NLA’s case) says:

Para. 45. … By clicking on a Link to an article, the End User will make a copy of the article within the meaning of s. 17 and will be in possession of an infringing copy in the course of business within the meaning of s. 23.

The argument here is that the site has some terms and conditions that say it is not for ‘commercial user’.

As far as I can see the judge equivocates on this issue, but happily does not seem convinced:

Para 100. I was taken to no authority as to the effect of incorporation of terms and conditions through small type, as to implied licences, as to what is commercial user for the purposes of the terms and conditions or as to how such factors impact on whether direct access to the Publishers’ websites creates infringing copies. As I understand it, I am being asked to take a broad brush approach to the deployment of the websites by the Publishers and the use by End Users. There is undoubtedly however a tension between (i) complaining that Meltwater’s services result in a small click-through rate (ii) complaining that a direct click to the article skips the home page which contains the link to the terms and conditions and (iii) asserting that the End Users are commercial users who are not permitted to use the websites anyway.

Free use

Finally, the following extract suggests that NLA would not be seeking to enforce the full licence on certain free services:

Para. 20. The Publishers have arrangements or understandings with certain free media monitoring services such as Google News and Google Alerts whereby those services are currently licensed or otherwise permitted. It would apparently be open to the End Users to use such free services, or indeed a general search engine, instead of a paid media monitoring service without (currently at any rate) encountering opposition from the Publishers. That is so even though the End Users may be using such services for their own commercial purposes. The WEUL only applies to customers of a commercial media monitoring service.

Of course, the fact that they allow it without licence, suggests they feel the same copyright rules do apply, that is the search collation services are subject to copyright.  The judge does not make a big point of this piece of evidence in any way, which would suggest that these free services do not have a right to abstract and link.  However, the fact that Meltwater (the agency NA is acting against) is making substantial money was clearly noted by the judge, as was the fact that users could choose to use alternative services free.

Thinking about it

As noted my gut feeling is that fairness goes to the newspapers involved; news gathering and reportingis costly, and openly accessible online newspapers are of benefit to us all; so, if news providers are unable to make money, we all lose.

Indeed, years ago in dot.com days, at aQtive we were very careful that onCue, our intelligent internet sidebar, did not break the business models of the services we pointed to. While we effectively pre-filled forms and submitted them silently, we did not scrape results and present these directly, but instead sent the user to the web page that provided the information.  This was partly out a feeling that this was the right and fair thing to do, partly because if we treated others fairly they would be happy for us to provide this value-added service on top of what they provided, and partly because we relied on these third-party services for our business, so our commercial success relied on theirs.

This would all apply equally to the NLA v. Meltwater case.

However, like the Shetland case all those years ago, it is not the particular of the case that seems significant, but the wide ranging implications.  I, like so many others, frequently cite web materials in blog posts, web pages and resource lists by title alone with the words live and pointing to the source site.  According to this judgement the title is copyright, and even if my use of it is “fair use” (as it normally would be), the use of the live link is NOT sufficient acknowledgement.

Maybe, things are not quite so bad as they seem. In the NLA vs. Meltwater case, the NLA had a specific licence model and agreement.  The NLA were not seeking retrospective damages for copyright infringement before this was in place, merely requiring that Meltwater subscribe fully to the licence.  The issue was not that just that copyright had been infringed, but that it had been when there was a specific commercial option in place.  In UK copyright law, I believe, it is not sufficient to say copyright has been infringed, but also to show that the copyright owner has been materially disadvantaged by the infringement; so, the existence of the licence option was probably critical to the specific judgement.   However the general principles probably apply to any case where the owner could claim damage … and maybe claim so merely in order to seek an out-of-court settlement.

This case was resolved five months ago, and I’ve not heard of any rush of law firms creating vexatious copyright claims.  So maybe there will not be any long-lasting major repercussions from the case … or maybe the storm is still to come.

Certainly, the courts have become far more internet savvy since the 1990s, but judges can only deal with the laws they are give, and it is not at all clear that law-makers really understand the implications of their legislation on the smooth running of the web.

  1. This was the case in the late 1990s where the Shetland Times sued the Shetland News for including links to its articles.  Although the particular case involved material that appeared to be re-badged, the legal issues endangered the very act of linking at all. See NUJ Freelance “NUJ still supports Shetland News in internet case“, BBC “Shetland Internet squabble settled out of court“, The Lawyer “Shetland Internet copyright case is settled out of court“[back]

Deadly curse of health and safety culture

Yesterday’s Times front page story “death by red tape” described the sheriff’s report on a woman who had fallen down a 45 foot (less than 15 metre) mine shaft in Ayreshire, and died after 6 hours while emergency services argued on the surface about health and safety issues. I was reminded of a similar case a while ago when an ambulance crew had to wait for police backup while again a patient died.

Neither report mentioned the Fire Chief who was charged with manslaughter after the warehouse blaze in the south of England a few years ago. In this case he did allow teams into the building, allowing them to do their job. In this case it was the fire crew who died and their manager held responsible.

With those responsible in these situations having to be constantly aware that they may face criminal
prosecution if they make the wrong decision, no wonder they delay.

Those on the front line in these circumstances have to make difficult decisions. While these decisions certainly should be reviewed analysed and used to improve training and advice, we need to end the blame culture and accept that these decisions will occasionally turn out in the light of time to have been wrong.

Our belief we can create a risk free world is hubris, and while we maintain this myth, those who are faced with the real decisions have their already difficult job made harder, and incidents like the preventable death of this woman in Scotland will continue.

The Great Apple Apartheid

In days gone by boarding houses and shops had notices saying “Irish and Blacks not welcome“.  These days are happily long past, but today Apple effectively says “poor and rural users not welcome“.

This is a story about Apple and the way its delivery policies exacerbate the digital divide and make the poor poorer.  To be fair, similar stories can be told about other software vendors, and it is hardly news that success in business is often at the expense of the weak and vulnerable.  However, Apple’s decision to deliver Lion predominantly via App store is an iconic example of a growing problem.

I had been using Lion for a little over a week, not downloaded from App Store, but pre-installed on a brand new MacBook Air.  However, whenever I plugged in my iPhone and tried to sync a message appeared saying the iTunes library was created with a newer version of iTunes and so iTunes needed to be updated.  Each time I tried to initiate the update as requested, it started  a long slow download dialogue, but some time later told me that the update had failed.

This at first seemed all a little odd on a brand new machine, but I think the reason is as follows:

  1. When I first initialised the new Air I chose to have it sync data with a Time Machine backup from my previous machine.
  2. The iTunes on the old machine was totally up-to-date due to regular updates.
  3. Apple dealers do not bother to update machines before they are delivered.
  4. The hotel WiFi connection did not have sufficient throughput for a successful update.

From an engineering point of view, the fragility of the iTunes library format is worrying; many will recall the way HyperCard was able to transfer stacks back and forth between versions without loss.  Anyway the paucity of engineering in recent software is a different story!

It is the fact that the hotel WiFi was in sufficient for the update that concerns me here.  It was fast enough to browse the web, without apparent delay, to check email etc.  Part of the problem was that the hotel did offer two levels of service, one (more expensive!) aimed more at heavy multimedia use, so maybe that would have been sufficient.  The essential update for the brand new machine consisted of 1.46 gigabytes of data, so perhaps not surprising the poor connection faltered.

I have been concerned for several years at the ever increasing size of regular software updates, which have increased from 100 Mbytes to now often several Gbytes1.  Usually these happen in the background and I have reasonable broadband at home, so they don’t cause me any problems personally, but I wonder about those with less good broadband, or those whose telephone exchanges do not support broadband at all.  In the UK, this is mainly those outside major urban areas, who are out of reach of cable and fibre super-broadband and reliant on old BT copper lines.  Thinking more broadly across the world, how many in less developed countries or regions will be able to regularly update software?

Of course old versions may well run better on old computers, but without updates it is not just that users cannot benefit from new features, but more critically they are missing essential security updates leaving the vulnerable to attack.

And this is not just a problem for those directly affected, but for us all, as it creates a fertile ground for bot armies to launch denial of service attacks and other forms of cybercrime or cyberterrorism.   Each compromised machine is a future cyberwarrior or cybergangster.

However, the decision of Apple to launch Lion predominantly via App Store has significantly upped the stakes.   Those with slower broadband connections may be able to manage updates, but the full operating system is an order of magnitude larger.  Of course those with slower connections tend to be the poorer, more vulnerable, more marginalised; those without jobs, in rural areas, the elderly.  It is as if Apple has put up a big notice:

To the poor and weak
we don’t want you

To be fair, Lion is (one feels grudgingly) also made available on USB drives, but at more than twice the price of the direct download2.  So this is not entirely shutting the door on the poor, but only letting them in if they pay extra.  A tax on poverty.

Of course, this is not a deliberate act of aggression against the weak, just the normal course of business.  The cheapest and easiest way to deliver software, and one that incidentally ensures that all revenue goes to Apple, is through direct online sales.  The USB option adds complexity and cost to the distribution systems and Apple seem to be pricing to discourage use.  This, like so many other ways in which the poor pay more, is just an ‘accident’ of the market economy.

But for a company that prides itself in design, surely things could be done more creatively?

One way would be to split software into two parts.  One small part would be the ‘key’, essential to run it, but very small,  The second part would constitute the bulk of the software, but be unusable without the ‘key’.   The ‘key’ would then be sold solely on the App store, but would be small enough for anyone to download.  The rest would be also made available online, but for free download and with a licence that allows third party distribution (and of course be suitably signed/encrypted to prevent tampering).  Institutions or cybercafes could download it to local networks, entrepreneurs could sell copies on DVD or USB, but competition would mean this would be likely to end up far cheaper than Apple’s USB premium, close to the cost of the medium, with a small margin.

Of course the same method could be used for any software, not just Lion, and indeed even for software updates.

I’m sure Apple could think of alternative, maybe better, solutions.  The problem is just that Apple’s designers, despite inordinate consideration for the appearance and appeal of their products, have simply not thought beyond the kind of users they meet in the malls of Cupertino.

  1. Note, this is not an inevitable consequence of increasing complexity and (itself lamentable) code bloat.  In the past software updates were often delivered as ‘deltas’, the changes between old and new.  It seems that now an ‘update’ is in fact complete copies of entire major components.[back]
  2. At the tiem of wrting tjis Mac OSX LIon is available for  app store for $29.99, but USB thumb drive version is $69.99[back]

trouble in the City – wise as serpents

It is wonderful to see the conflict over the St Paul’s protest camp resolved at last, but I am left with the sad image of many in the City gloating over this dispute.

I usually find that incompetence and coincidence are better explanations than intrigue and conspiracy, but one wonders here whether there has not been some careful PR management in the background.  Certainly, the effect of the last weeks has been to divert the attention of media and public away from the real issues of the protest: the contrast between growing poverty in the country and increasing wealth in the finance industry, so that even the news of obscene corporate pay rises during the period was sidelined.

Perhaps more significant in the long term has been the weakening of the position of St Paul’s staff who have often been a gentle but persistent critic of the City, long before the protesters camped and will continue to be long after the camp is dissolved and they return to their normal lives or the next cause.

Jesus said “be as wise as serpents, yet harmless as the dove“, but it seems this time the real serpents have won on wisdom.  I just hope that during the coming months the spotlight can shift to where it belongs, and public and press focus on the increasing injustice and disparity not just in the City of London, but across the country and world.