Digital Economy Bill: An ISP perspective
As a general principle and in support of the rule of law, nobody involved in the campaign process against the implementation of the Digital Economy Bill (DEB) supports the theft of someone else's property as is the case when downloading a pirate copy of a music track. However, before we examine the history of the legislation, let's take a reality check about where we are.
The cat is well and truly out of the bag. The downloading of copyrighted material is now so widespread and with faster and faster broadband and bigger and bigger hard drives it is never going to stop. Infringers will just move on to alternative means - encrypted P2P for example. On this basis all the hard work on the DEB is likely to be a complete waste of time. It is also very difficult to prove who has used a specific broadband connection to indulge in this copyright infringement; what's more the burden of proof in this bill lies with the accused to prove themselves innocent. This is totally wrong and goes against all the principles of modern UK society.
The creative industry have not helped themselves as they do not make it easy for a company to offer cost effective music services - up to 44 separate licensing arrangements are needed to sell music online internationally with every country having different laws and approaches. This is a hugely expensive exercise which does not encourage competition.
The modus operandi of the creative industries encourages copyright infringement - pre release pump priming creates a demand for a product that people can't buy yet but which quickly becomes available on torrent sites. The same applies to material released in one country a long time before another, a trait from a bygone era. Many infringers would be happy to pay for this material if they could do so.
The issue of how to stop online copyright infringement has been going on for some years now. Discussions have been taking place between rights-holders and the ISP industry since at least 2008. These centred around ISPs assisting rights holders by sending letters to end users identified as "alleged infringers" on the basis of their IP address and evidence of the music, movie or software being downloaded, notionally via a torrent. These talks were being conducted on behalf of the music industry by Feargal Sharkey, CEO of UK Music.
Whilst initially rights holders were after the termination of broadband connections of repeat offenders they had appeared to relent on this. The whole process was presented by ISPs as fraught with difficulties, human rights, privacy and how to identify the real culprits being some of the issues.
The process did not appear to be going anywhere. There was an element of ISPs seeing the creative industry as wanting all the benefits without having to carry any of the costs. Also they didn't appear to be, or perhaps weren't able to be interested in changing their business models to accommodate the massive change in consumer habits brought about by the internet. It still isn't easy for a service provider to offer a cost effective online music product.
At the end of summer 2009, Lord Mandelson took things into his own hands after what turned out to be a well publicised (after the fact) lunch with music industry executive David Geffen. The result was the Digital Economy Bill as laid out before us today.
The DEB is multifaceted and covers a long list of subjects loosely arrayed under the banner of Digital Britain. These include:
- General duties of OFCOM
- Online infringement of copyright
- Powers in relation to internet domain registries
- Channel Four Television Corporation
- Independent television services
- Independent radio services (digital switchover)
- Regulation of television and radio services
- Access to electromagnetic spectrum
- Video recordings
I don't propose to go through all of these points. All that we need to know at his stage is that the three main political parties support most of the bill which, digital switchover aside, is deemed to be non-contentious for the purpose of this article. The Digital Switchover is likely to leave 120 local radio stations stranded and 120 million radio sets in the UK redundant but that is a topic for another time.
The one aspect of the DEB that is creating a huge controversy is the online infringement of copyright. This is basically what Lord Mandelson brought back from his lunch in the sun.
In a nutshell, and nothing is ever that simple, the UK Government wants to help rights holders clamp down on music piracy by imposing a process that gradually applies stricter measures to offenders. They want to do this by giving government ministers powers, as a last resort, to impose technical measures on infringers. For technical measures read "throttle your bandwidth" or "cut off your broadband". The government also wants to stop access to sites that promote illegal copyright infringement.
The problem for all of us lies in the fact that not unreasonably the government wants to help the music industry, and has up until now been supported in this goal by both Conservative and Liberal Democrat opposition.
Two weeks ago, the Liberal Democrats passed an emergency motion at their spring conference supporting Freedom, Creativity & the Internet. This motion opposed DEB Amendment 120A, a part of the bill that gave rights holders the power to ask ISPs to block access to sites that the rights holders themselves considered to be hosting copyright infringing material. The fact that 120A was actually introduced by the Liberal Democrats in the House of Lords in the first place was immaterial.
The effect of Amendment 120A was going to be devastating in the UK. If an ISP refused to block the site in question and a rights holder was subsequently granted a court order then the ISP would have to pay all the costs of the case. The effect was going to mean ISPs potentially blocking a site every time they were asked to do so rather than risk incurring the costs.
The Lib Dems made a fuss and the Government kicked Amendment 120A out in any case, resorting to the original plan of giving ministers the powers to decide what to do.
The problem here is, aside from the wholly undesirable concept of an ISP blocking your internet access, is where do you draw the line? Websites such as YouTube and Facebook might never again be able to take off if the user generated content they carry is deemed to be illegal. If you take the concept to the extreme you would even block access to search engines.
Perhaps an equally worrying issue is that this bill would set a precedent. Copyright infringing sites today - some other type of site that the UK Government doesn't like tomorrow.
The Lib Dems have now gone a stage further and said that they will completely oppose the online copyright section of the bill because it has not had adequate parliamentary scrutiny.
The Parliamentary Process
At this point it is worth taking a look at the whole parliamentary process as it is being applied here. Normally a bill begins life in the House of Commons, moves on to the Lords and back to the Commons for the final vote, being subjected to scrutiny by a committee at each stage of the process and with time for expert input to be provided. This process can take a long time - a year maybe. We don't want to rush things and make mistakes.
In the case of the DEB the Government didn't have a year—they knew that there would be an election in the spring. In order to short circuit the process they quite legitimately began the Digital Economy Bill in the House of Lords. The Bill had two reading in the Lords and is being rushed through to the House of Commons. It is normally possible to go to eight readings in the Lords, indicating how fast this legislation is being rushed through.
The Digital Economy Bill is now in the Commons and is due to have its second reading on 6th April. This coincidentally, is the same day that Gordon Brown is expected dust down his best suit and head over to Buckingham Palace to ask the Queen to dissolve parliament, and call an election.
This however means that despite the fact that the DEB will have had barely any scrutiny, it is likely to end up in the 'wash-up' process. This is the process at the end of a Parliament where all parties get together for a bit of horse trading. "I'll let you have that bill if I can have this one". It can all be over in an hour! As long as a bill has had its second reading, this is all legal.
There is no precedent for a bill to be rushed through in this manner. As we get nearer to the wire the voices of reason have been crying out and in particular, as previously mentioned, the Lib Dems have said they will oppose it. On their own, I doubt that they can succeed. However the hope is that enough noise has been made in regard of the anti-democratic nature of this process that other MPs will object. A number of Labour MPs have already come out against the bill. In the words of Tom Watson MP "A bill that is made in haste is a bad bill".
Campaign organisation 38Degrees is raising cash to fund widespread newspaper advertising on the day of 6th April to draw the attention of the MPs to the lack of scrutiny the Digital Economy Bill has received. Not many MPs are likely be around during the wash-up as many will be out on the campaign trail. This last minute effort is seen as vital.
Trefor Davies is co-founder and Chief Technology Officer at Timico and a member of the Council of the Internet Service Providers' Association (ISPA). You can read his blog here.
If you are a representative from the music industry, or other creative industries, and would like to put across your point of view on the Digital Economy Bill and the provisions relating to protecting the creative industries in the UK, please contact us on [email protected]