Friday, February 05, 2010

Germany plans enquiry into the digital society

On 14th January the Christian Democratic Union and its Union partner in the German government the Christian Social Union of Bavaria (CDU/CSU) proposed setting up an Enquete Commission to examine the implications of the Internet on society. Amongst other things, the Commission will be asked to look at initiatives for providing free access to publicly-funded research. Could this announcement be connected with the e-petition in support of Open Access (OA) launched in Germany last November? Does it herald a change of heart about OA on the part of the German government?

When governments are at a loss over how to tackle an issue, find themselves confronted by demands from citizens that they would rather not address, or face growing public conflict over an important question, they tend to launch an enquiry, produce a white paper, or appoint a commission to make recommendations.

With many governments now more than ever in doubt about the best way to respond to the host of issues raised by the Internet — including copyright, file-sharing, pornography, network neutrality, digital governance, OA etc. — we've seen a lot of enquiries, commissions and reports in recent years, all of which have proved to be controversial in one way or another.

Last year, for instance, saw the publication of a UK report called Digital Britain. This was immediately attacked by web companies like Facebook, Google, and Yahoo — on the grounds that it could give the UK government "unprecedented and sweeping powers" to amend copyright laws.

Last month a French report proposed a "Google tax" on online advertising revenues. Designed to subsidise musicians and newspapers struggling to adapt to the digital era, the idea was criticised for proposing that taxpayers fund "out-of-date businesses".

And in the US the Federal Communications Commission (FCC) has been struggling to realise the principles of "network neutrality" that it outlined back in 2005 with its Internet Policy Statement. Amongst other things, the FCC's proposals have been criticised on the grounds that they would stifle innovation and open the door to government control of the Internet.

Free unfettered access to the Internet

Now, it seems, it is the turn of Germany, with the CDU/CSU proposing the establishment of an Enquete Commission on The Internet and the Digital Society. To operate under the aegis of the German Parliament (Bundestag), the Commission will consist of 13 members of parliament from the different German political parties and 13 external experts proposed by the political parties.

The CDU/CSU outlined its plans in a press release published on 14th January. "The Internet is no longer just a technical platform," it said, "but has become an integral part of the life of many people."

For that reason, it added, it is up to governments to "set the framework to protect the Internet as a liberal medium, and to ensure its integrity and operability ... [such that] ... citizens, businesses and academia have free, unfettered access to the Internet."

On 19th January Germany's Free Democratic Party (FDP) — the third coalition partner in the German Government — announced its support for the Commission.

Amongst the many issues the Commission will be asked to examine, writes German OA advocate Eberhard Hilf on his blog, is the need to increase awareness of intellectual property; how to ensure that the Internet operates as a competitive market; how to ensure free access to the results of publicly-funded research; and how to develop strategies to ensure free access to government information.

On OA the draft resolution proposes that the Commission consider: "Initiativen zum freien Zugang zu den Ergebnissen staatlich finanzierter Forschung (Open Access)" ["Initiatives for free access to the results of publicly funded research (Open Access)"].

That the question of access to publicly-funded research should be included in a shopping list of hot topics related to the digital society is striking, and surely demonstrates how successful the OA movement has been in getting what many might consider to be an esoteric topic on to the national political agenda. As Hilf puts it, "It demonstrates that the topic of Open Access is now receiving serious evaluation at the level of the German Bundestag."

The Internet Question

On the other hand, maybe it is not so surprising: last year OA emerged as a key battle zone in Germany in discussions about what one might call the "Internet Question". As Hilf points out on his blog, OA was the topic of considerable public discussion during 2009, after it became entangled in a smorgasbord of Internet-related issues — issues like copyright, file-sharing, censorship, and growing fears that German culture is in danger of being appropriated by American companies like Google and YouTube.

Matters came to a head last April with the so-called Heidelberg Appeal, an open letter entitled "The Freedom to Publish and the Protection of Copyright" that was sent to German President Horst Köhler, Chancellor Angela Merkel and the heads of Germany's 16 federal states. The initiative was spearheaded by the academic Roland Reuss, a science historian and researcher (e.g. on the work of the writer Franz Kafka).

The Heidelberg Appeal was an emotional and confused attack on Google Books, on YouTube and on OA, and was in part triggered by growing support for OA from the Alliance of German Scientific Organisations — a coalition whose membership includes The German Council of Science and Humanities (WR), The German Research Foundation (DFG), Leibniz-Gesellschaft, and the Max Planck Society.

Outlining its concerns, the Appeal said that authors' freedoms in Germany are currently under serious threat, both at an international level ("[I]ntellectual property is being stolen from its producers to an unimagined degree and without criminalisation through the illegal publication of works protected by German copyright law on platforms such as Google Books and YouTube."), and at a national level. ("The so-called 'Alliance of German Scientific Organisations' wants to obligate authors to use a specified mode of publication [i.e. OA]. This is not conducive to the improvement of scientific information").

Not only was the Appeal based on a misunderstanding of the aims and objectives of OA (OA advocates, for instance, have never suggested that researchers be compelled to publish in OA journals), but it conflated OA with other issues (Google Books, YouTube etc.) that OA advocates argue have little to do with it.

This misunderstanding too is perhaps not surprising — for all these issues do share at least one important thing in common: they all arise from the fact that the Internet fundamentally changes the way in which information can be copied, distributed and consumed.

As the Enquete Commission proposal acknowledges, this offers many opportunities, but also poses threats.

However, due to proactive lobbying by multinational corporations in the mid 1990s, governments have until now tended to focus mainly on the threats and, in the belief that in a knowledge society IP maximalism and increasingly draconian copyright laws are essential, embarked on a wide-ranging review and updating of copyright laws — both nationally, and internationally via organisations like the World Intellectual Property Office (WIPO).

Amongst other things, this led to the introduction of the 1998 Digital Millennium Copyright Act in the US, and the 2001 European Copyright Directive.

But as the collateral damage that such laws can inflict on innovation, competition, and civil rights etc., governments have come under increasing fire from a raft of new pressure groups and new-style political parties.

So, for instance, after industry groups like the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) persuaded governments to strengthen copyright laws, and sanction wide-ranging use of digital rights management (DRM) technologies in order to lock up content (even at the expense of traditional fair use rights), there has been growing criticism from organisations like the Electronic Frontier Foundation (EFF) and Save the Internet.

What has emerged as the key issue is how companies and governments ought to respond to the challenges that the Internet poses, both the challenges to traditional business models, and the challenges to society at large.

Media companies, for instance, have consistently maintained that new laws need to be introduced to protect their legitimate business interests. Opponents counter that they would be far better adapting their business models to the new realities of the Internet rather than seeking to bend the new environment to the steam age models that they are accustomed to. Instead of focusing on the threats the Internet poses to their historical way of doing things, critics argue, large corporations should exploit the many new opportunities it opens up.

As criticism (and civil disobedience) has grown, so governments have faced growing pressure to rethink their approach, particularly as it has become increasingly clear that IP maximalism may do more harm than good, and may any case prove unsuccessful, even when large multinational companies are prepared to sue thousands of private citizens, including hapless mothers.

The Internet has also raised questions about control more generally, with growing concern about privacy, about censorship, about governance and governmental transparency, and about the principle of universal access.

Heated debate

How did OA become entangled in this troublesome net? Because copyright is as central to any discussion of OA as it is to many of these other issues. As for traditional media companies, for instance, copyright is the cornerstone on which the business of scholarly publishing is built.

Confronted by growing calls for (and even mandates requiring) researchers to maximise access to the papers they publish in scholarly journals — by self-archiving them — scholarly publishers have echoed large media companies: If the information that they sell is made freely available on the Internet by others (and in ways not previously possible prior to the Internet), it will destroy their businesses.

What is different about scholarly publishing, of course, is that the information in question (research) is created with public funds. Researchers give it to publishers without charge, and conduct peer review of colleagues' research without charge. Publishers then sell that information back to the research community in the form of journal subscriptions.

Effectively, therefore, the research community gives publishers a publicly-funded good; publishers then package it up in journals and sell it back. In a print world this packaging is expensive. In a world in which information is produced, distributed and read electronically, the costs fall away to zero, argue OA advocates. Consequently, they say, the research community should be paying considerably less for the now minimal service provided by publishers. Instead they are paying more.

At heart the argument for OA is that in a networked world publicly-funded research can and should be made freely available, not held captive behind toll gates that deny access to those who cannot afford the toll. Scholarly publishers should adapt to the new reality, or get out of the way, not seek to impose outdated models in the new environment.

The problem is that scholarly publishers are accustomed to making large profits from publishing research. OA threatens these profits, and even those publishers who have migrated to an OA publishing model still expect to charge unjustifiably high fees. Rather than adapt, in other words, publishers want governments to help them maintain their profit levels, even if doing so prevents researchers taking advantage of the Web's distributive power.

Since publishers appear to be unwilling to play ball, argue OA advocates, it is up to researchers to ensure that their papers are freed from the pay walls — by self-archiving.

The inevitable tensions arising from this conflict of interest became all too apparent in Germany during the process of enacting the European Copyright Directive into German law. The so-called "First Basket" of the new law was passed in 2003. Shortly afterwards, however, discussions about a "Second Basket" led to a heated debate, with the research community becoming increasingly resistant to the government's proposals.

The German Rectors' Conference, the Science Council, the Max Planck Society and other German education and research organisations, for instance, voiced strong opposition, and joined forces with an initiative co-founded by Hilf called the Coalition for Action: Copyright for Education and Research. (AB).

On 5th July 2004 the AB issued the Goettingen Declaration on Copyright for Education and Research, which argued that "In a digitised and networked information society, access to information worldwide for the purpose of education and science must be guaranteed at all times and from any place."

By now the research community had concluded that, whatever similarities the case for OA may appear to share with the case being made by media companies, and whatever the merits or demerits of the arguments used by media companies in pressing for stronger copyright laws, publicly-funded research should be treated as a special case.

From the ensuing debate emerged a proposal for a "Third Basket" — known as "The Education and Science Basket". At the centre of the discussion about the Third Basked was the issue of OA. As we saw, scholarly publishers disagree and the research community disagree over this. And the German Government appears still inclined to support the publishers' case.

Moreover, to the frustration of the OA movement, some researchers also appear not to get it yet. It was the distribution last year of a questionnaire to science organisations about the Third Basket by the German Federal Ministry of Justice, for instance, that sparked the Heidelberg Appeal. (AB's response to the questionnaire can be read here)


In its turn, The Heidelberg Appeal spurred a 31-year-old former chemist and now science journalist from Heidelberg, Lars Fischer, to launch an e-petition. Introduced on the Bundestag server last November, this proposed an amendment to the pending changes in German copyright law to require all scientific publications resulting from public funding to be made "openly accessible."

Speaking to me at the time, Fischer said that he had been offended by the Heidelberg Appeal. He added: "I learned that many scientists were as outraged as I was about the falsehoods in that document."

Did Fischer's e-petition play a role in the decision to propose a Commission? "I can only speculate," says Johannes Fournier of the German Research Foundation (DFG). But he adds that it "could be one reason for establishing the Enquete Commission right now."

Fischer also suspects there may be a connection. "I don't know for sure," he emailed me, "but when the petition was posted I contacted several local and federal politicians in all major parties and got a number of very encouraging responses, especially from within the CDU (thanks to science blogger Christian Reinboth, who is a local politician there). Moreover, the wording of the Commission proposal seems to relate the key argument of my petition. So I think it is likely that there is a connection."

Clearly, however, the Commission also has to be seen in the context of the wider debate about copyright. As Fournier points out, the proposal comes in the wake of the government's promise to "do further work on improving German copyright law."

Fournier adds: "Last year the Federal Ministry of Justice asked stakeholders for their suggestions on copyright improvement. Their responses had to be in by mid-June 2009, so at least some of the topics for the Enquete Commission have probably resulted from that enquiry."

Confused and conflated

As we've said, the Heidelberg Appeal was an oddly confused document. It is, however, a good example of the way in which quite different issues are often conflated — either through ignorance or, frequently, as part of a deliberate attempt to throw sand in the eyes of opponents by means of "FUD".

In their attempts to derail the OA movement, Scholarly publishers have been as guilty of FUD as anyone. They have argued, for instance, that OA will lead to "socialised science"; that "public access equals government censorship"; and that OA will cause the financial collapse of the scholarly publishing industry, and so the destruction of peer review.

Interestingly, recent events in Germany provide a striking example of how vested interests are happy to confuse a debate, or hijack it for their own purposes — an example that also demonstrates the way in which the Internet Question has become a Pandora's Box of complex issues whose relationship to one other is not always obvious. And like an ecosystem, tweaking one part of the system can have unexpected consequences for other — apparently unconnected — parts.

When last year the German Government set about introducing an amendment to a piece of key Internet legislation (Das Telemediengesetz), for instance, interest groups were quick to exploit public concern over child pornography for their own ends.

The original amendment — the Zugangserschwerungsgesetz — was intended to prevent child pornography from being distributed over the Internet. During the legislative process, however, the bill was broadened to also encompass the blocking of gambling sites, "killergames", copyright protected material, political hate pages, defamatory material etc. etc.

This attracted considerable criticism. "People did not object to the blocking of child pornography," explains Hilf, "but members of parliament began calling for the regulation to be extended. Lobbyists wanted new DRM rules added, for instance, and to allow web pages to be blocked in cases of copyright infringement."

Last May, with the debate in full swing, activist Franziska Heine launched an e-petition under the rubric: "No indexing and blocking of internet pages". This quickly attracted 134,000 votes, making it the most widely supported e-petition ever in Germany.

In the process the Internet Question turned into a political hot potato, thrusting a previously obscure political party called the Piratenpartei [The Pirate Party Germany] into mainstream German politics. Modelled on the Swedish Pirate Party, the Piratenpartei calls, amongst other things, for liberalisation of copyright laws, information privacy rights, support for the Zugangserschwerungsgesetz, and "open source governance".

Ordinary Germans, it turned out, had by now become sufficiently alienated by their government's approach to Internet-related matters that the Piratenpartei succeeded in getting over 2% of the votes in last September's federal elections.

The incident provides further evidence that the German Government may need to rethink its approach. Moreover, while the Zugangserschwerungsgesetz was passed by the German Parliament, in November President Köhler rejected it. "The attempts to extend the law led the President to refuse to sign it in its present form," explains Hilf. "This is an extremely rare event that happens maybe once in every 10 years. But people do not want Chinese web filters in Germany."

Germany's Social Democratic Party (SPD) does at least appear to have got it: Having voted for the Bill in June, it subsequently changed its mind.

It appears that we have to conclude that Fischer's petition can only have been one of a number of factors that led the CDU/CSU to propose an Enquete commission. It may however have been the final straw. "It added to the headaches of the conservative politicians of the CDU/CSU," explains Hilf. "Their election campaign for the German Bundestag last September rested on DRM, on Internet censorship, and on choking copyright laws. And it was for this reason that many normally liberal, or even conservative, people ended up voting for the Piratenpartei."

But does the Commission herald a change of heart on the part of the German Government about the Internet Question, or indeed of OA?

Canny political move?

Fournier hopes so."The establishment of the Enquete Commission indicates that the importance of the Internet and internet-related matters for all citizens, as well as for the economy, has at last been seen, and that politicians are willing to address the questions more thoroughly than ever before."

Hilf, however, fears that it is more likely to be a canny political move by the German Government than a genuine desire to re-examine the issues. "In a typical Mrs. Merkel strategy it was decided to appear to soothe the public by coming up with the idea of the Enquete Commission," says Hilf. "It will work away for some years but have little direct influence on politics."

It certainly won't produce any quick answers: The Commission is not expected to start its deliberations until the summer, and these will then last for two years.

Is there at least hope that in the meantime the aspirations articulated in the Fischer petition may be heeded? "The e-petition committee will consider it, formulate an answer and a recommendation to Parliament, but that does not mean that Parliament will necessarily do anything," cautions Hilf.

It is more likely, he adds, that while the Commission sits talking, the German Government will finalise its planned changes to Germany copyright law; and in a way that will please neither its critics, nor the OA movement. "The CDU/CSU and the FDP (liberals) are moving to introduce the Third Basket, and this will undoubtedly contain DRM and further restrictions, and it will try to curb OA."

He adds: "I expect the Government to declare OA mandates to be illegal, and to raise the bar on self-archiving — by, for instance, only permitting the author's copy to be archived."

Fellow German OA advocate Klaus Graf is equally sceptical. "I have little hope that there will be a support for OA," he says.

But Fischer has not given up. "Currently I'm thinking of ways to get my message to members of the Commission," he says pugnaciously. "I'm not done yet."

For his part, Hartmut Simon, a multimedia specialist at the University of Siegen and co-founder (with Hilf) of the AB, believes that the science and education community should be setting its sights higher than free access to research papers alone. "In my opinion there should be a much wider discussion about better (free) access to all digital information and works for educational and scientific purposes — as a general principle — equalling (and broadening) the fair use concept available in the USA."

Meanwhile, suggests Fournier, the challenge the Commission will face is nothing less than that of trying to square the circle. "If you look at the Coalition Treaty between the CDU and the FDP, and scan the sections that address the Internet, you will find a number of references to the need for data protection, privacy, and for the Internet to be viewed as an important tool for citizens," he says. "But these references are somehow in contradiction with those that propose better protection of intellectual property, and support for the commercial sector in its attempts to make money in the online world."

In other words, there is as yet little consensus on how to resolve the conundrum that lies at the heart of the Internet Question: Is it wise, or even possible, for governments to continue supporting the attempts of commercial organisations to impose their traditional business models on the fundamentally different landscape of the Internet, particularly when doing so threatens to stifle innovation, erode civil rights, and alienate the public, civil society and non-commercial interest groups like the science and education sector?

But for the moment it appears that no government is prepared to think the unthinkable, and prioritise the rights of ordinary citizens over the interests of business.

It seems, therefore, that the Enquete Commission will prove no less controversial than all the other enquiries, commissions and reports that have tried to square the circle.

May not be a bad thing

However, even if it is true that the Enquete Commission is a ploy by the German Government to soothe the public while carrying on as before, Hilf believes there are reasons to be optimistic — since it will inevitably spark further public debate, not just about issues like Google Books, censorship, file sharing and online privacy, but about OA.

"I fear that the Commission will be manned with too many lobbyists, but the public discussion that it will inevitably stimulate, and growing anger over the Third Basket, will raise public awareness of the issues," he says.

At the same time, he says, growing anger at the failure of the Government to support OA will spur the academic community to start introducing quasi-mandates. "Mandates like the one introduced at Harvard, which says in effect that faculty are expected to deposit their papers in the institutional repository, but individual authors are free to opt out."

All of which suggests that it may not be a bad thing that OA has become conflated with a host of other Internet-related issues in Germany. While this clearly leads to the kind of confusion we saw in the Heidelberg Appeal, it has at least put an esoteric subject before the public eye, and made it a topic of heated public discussion. And right now the OA movement's best hope lies in gaining wider public support.

As it happens, that was exactly what Fischer hoped when he introduced his e-petition. As he put it to me last year, his aim was "to demonstrate that there is broad public support for Open Access and to promote open debate about intellectual property laws in science. As far as I see it, Open Access has always been treated — even by its supporters — as a niche topic for experts. But that is wrong. It is an issue that in the long run concerns everyone, and many people understand that."

And indeed the signs are encouraging: While Fisher's petition attracted over 23,000 signatures by its December deadline, the Heidelberg Appeal still has only 2,676 signatories ("mostly from journalists and authors, not researchers", says Hilf).

But the real benefit of greater public debate says Hilf, could be that it will force politicians to look beyond the self-serving arguments of lobbyists, and examine the issues for themselves. "Currently we face a situation in which politicians are still too 'technically ignorant' about OA, and too eager to listen only to lobbyists paid by commercial publishers."

Hilf hopes therefore that a public debate will convince politicians that in a networked society it is essential that information is able to flow freely, and not be constantly hampered by toll gates, even if it means standing up to commercial interests to achieve it. Politicians, after all, have a responsibility to the whole of society, not just the more powerful, or the more vocal.

Moreover, as cyber activist Cory Doctorow points out, "An 'information economy' can't be based on selling information. Information technology makes copying information easier and easier. The more IT you have, the less control you have over the bits you send out into the world. It will never, ever, EVER get any harder to copy information. The information economy is about selling everything except information."

No better time

And there could be no better time for politicians to educate themselves in these matters: As a result of leaked documents, news emerged last year that the closed-door negotiations taking place in connection with the Anti-Counterfeiting Trade Agreement (ACTA) — a proposed plurilateral trade agreement for establishing international standards on intellectual property rights enforcement throughout the participating countries — are in the process of agreeing a catch–all IP solution that could be very bad news indeed.

Such an agreement, some fear, would not only put the future of web-based services like Flickr, YouTube and Blogger at risk, but threaten ordinary citizens with the withdrawal of their Internet service if a member of their household is even suspected of copyright infringement. Here is proof, were it needed, that more public discussion is vital.

Public discussion, after all, involves all the stakeholders, and so ensures that all the issues are aired. That is the way to achieve democratic consensus, not through secret negotiations between industry groups and legislators behind closed doors. While it is possible that the case for OA could get lost in such a wide-ranging debate, it does at least hold out the promise of raising its profile, and so achieving its ends.

That is why Hilf remains upbeat. "I expect to see a hardening of the legislation process, but growing public awareness of OA, self-archiving etc. The petitions, the Pirate voters, and the Enquete Commission, will all help to influence the public discussion in the long run. And it will surely become an issue in the next Parliamentary election."

And there is no better way of focusing politicians' minds than the prospect of elections. With the Piratenpartei waiting in the wings, German politicians have every reason to begin the hard task of rethinking their approach to the Internet, and the information economy.

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