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The Crown's copyright con

About the author
Becky Hogge is a freelance writer and broadcaster. She is the former executive director of the Open Rights Group, a London-based campaigning organisation that fights for civil and consumer rights in the digital age. She was previously the managing editor, and then technology director, of openDemocracy.net. She blogs here, and co-presents acclaimed London radio show Little Atoms. Her first book, Barefoot into Cyberspace, was published in summer 2011

It is nearly two decades since the British government tried to ban Spycatcher, and you would expect them to have learned their lesson. After throwing £2 million in legal expenses after the biography of former MI5 operative Peter Wright, her majesty's government was forced to admit defeat in October 1988, leaving ministers red-faced and Wright seriously in the black, thanks to the free publicity afforded his book by his repeated trips to courts across the globe. Eighteen years on, it's the turn of the UK Foreign and Commonwealth Office (FCO) to have a go. But this time they have a new weapon in their armoury – the vagaries of the British copyright system.

The book in question is Murder in Samarkand, the memoirs of former ambassador to Uzbekistan, Craig Murray. In it, Murray exposes the human rights abuses of Islam Karimov's regime and details how, during his stay in Tashkent, he came to realise that the "War on Terror", in which Uzbekistan played ally to the US and UK, was essentially a hypocrisy. The book charts Murray's confrontation with his superiors at the FCO, his allegations of intelligence obtained under torture, the FCO's rebuttal of his fears, and their alleged attempts to drive him out of office.

Murray held off publishing Murder in Samarkand for many months as he exchanged letters with the FCO's Richard Stagg on his intention to publish the book. Although Murray made cuts from the original text, the FCO still threatened legal action were he to publish, on the grounds that the book remained defamatory, inappropriate, misleading and a breach of trust. Stagg also warned that a case against the memoirs might be pursued under copyright law.

Becky Hogge is openDemocracy's Technology Director and Technology Commissioning Editor.


Also by Becky Hogge in openDemocracy, a selection from her "Virtual reality" column and other articles:

"The Great Firewall of China" (May 2005)

"Why the WSIS? Democracy and cyberspace"
(November 2005)

"Global voices: blogging the world"
(December 2005)

"Some grown-up questions for Google" (February 2006)

"Internet freedom comes of age" (February 2006)

"Payday for the free internet" (March 2006)

"Internet Hoaxes hit politics" (April 2006)

"Microsoft: closed windows and hidden vistas" (April 2006)

"The battle for net neutrality" (May 2006)

"Open source ubuntu" (May 2006)

"The web's hall of mirrors" (July 2006)

"What moves a movement?"
(July 2006)

But what has copyright law got to do with it? Well, in late 2005, Sir Gus O'Donnell, the head of the British civil service, announced plans aimed at curbing the proliferation of embarrassing memoirs from former government employees by writing clauses into the contracts of all civil servants asserting that any books they wrote about their time on duty would be subject to Crown copyright, effectively channeling any cash made to the state rather than the author. O'Donnell had perhaps read the afterword to Spycatcher, in which a disgruntled Wright asserts that one of his main motivations in publishing the work was to top up his measly state pension. O'Donnell's move would remove the financial incentive for civil servants to spill the beans.

However, even in the unlikely event that this could apply retrospectively to "our man in Tashkent", one gets the impression from Murray's campaigning blog that he's not in it for the cash. In February 2006, Murray finally gave up his attempts to placate the FCO, and decided on a "publish and be damned" strategy. Earlier this month, the book went live on Amazon, and last week Murray got his first legal warning through the post from the UK government.

But the letter did not take aim at the book. Rather, the complaint focused on Murray's website, and documents he had posted there for download. These documents – obtained from the FCO using provisions in the Data Protection Act and the Freedom of Information Act – included evidence for Murray's allegations that the UK government would knowingly use intelligence from Uzbekistan obtained under torture. Murray was to remove these documents immediately, stated the letter, or risk prosecution for copyright infringement. After consulting with his lawyers, Murray complied.

What is shocking about the episode is the blatant misapplication of intellectual property law. Here is a situation in which documents used to hold power to account in a vital human rights issue are suppressed by a law originally designed to ensure rightsholders may duly profit from works in which they invest time and money. Although Crown copyright does protect commercial enterprise in some instances (for example in the licensing of Ordnance Survey data, though the public value of this practice is also highly questionable), in this instance the threat of copyright infringement proceedings has been levied solely to prevent evidence of a government's misdeeds from entering the public sphere.

This is not the first such case of misapplication of copyright law. In 2003, a manufacturer of electronic voting machines used in the US election, Diebold Inc, notified the internet service provider of Swarthmore University that material that infringed their copyright had been posted online by a group of students, and demanded this material be taken down. The infringing materials turned out to be internal memos from Diebold discussing serious defects in the company's product, memos for which Diebold claimed to own the copyright. On a vital issue to any healthy democracy, instead of opening the debate, Diebold chose to quash it in the easiest way it could.

Recent legislation in the US and Europe makes demanding the removal of material from the internet remarkably easy. The US Digital Millennium Copyright Act and the European Union Copyright Directive (EUCD) hold internet service providers liable for copyright infringement if they fail to take down material hosted by their customers once they have been notified by a rightsholder that copyright infringement is taking place. These pieces of legislation – akin to motorway owners being held liable for traffic accidents, or telephone companies for prank phonecalls – means that more often than not a disinterested party gets to choose whether to flick the censorship switch. The alternative is fighting an expensive legal case on behalf of their customers' right to free speech, a less than attractive option for a commercial company.

In the case of Diebold, however, the ISP did not back down. Confident they had a fair use case, the students stood their ground and won. Murray, however, capitulated, having been advised by his lawyers that should the matter go to court, losing the quite favourable case that the documents were in the public interest would cost him millions of pounds.

"I feel guilty for not fighting it through," says Murray, "but in the real world, you would have to be a wealthy man to take on the government". He can perhaps take some solace in the fact that the FCO's actions were utterly ineffective: by the time Murray had met the deadline to take down the documents, they had been mirrored on sites hosted far out of the reach of either the Official Secrets Act or EUCD, as well as uploaded into the lawless networks of peer-to-peer. After all, it ain't '88 anymore.

Still, if only the wealthy and the lawless may hold power to account, where does that leave democracy? Although the EUCD was not invoked in this instance, it's clear that in the information age, copyright has become a powerful agent on free speech, and one the government is not afraid to (mis)use.

The letter Murray received containing the notice to takedown the documents also informed him that:

"Even if a document is released under the Data Protection Act or Freedom of Information Act that does not entitle you to make further reproductions of that document by, for example, putting them on your website or making further copies to be provided to third parties. The copyright remains enforceable”

Thus the nature of the Freedom of Information Act is called into question. How free can information be if citizens are not permitted to share it among themselves? Must we each live in isolation of one another, uniquely aware of the misdeeds of power yet unable collectively to think or act against it? Is this the spirit of Crown copyright?

Perhaps I was naïve when I put that last question to the UK-based technology and intellectual property barrister known online as Geeklawyer. His response was a chilling one, and I will end this piece with it:

"The spirit is that of all power: the acquisition, retention and egregious abuse of it because one can. I've never seen a policy justification for the special status of Crown copyright and this case illustrates its pernicious use in saving the government from embarrassing questions and comment."


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