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Digital Top Stories
Concern expressed over Digital Bill’s increase of ministerial powers over copyright law
By CMU Editorial | Published on Monday 23 November 2009
So, the Digital Economy Bill was published on Friday. This is the government’s legislation that, among many other things, puts a version of three-strikes on the British statute book, forcing internet service providers to send warning letters out to those who persistently file-share unlicensed content, and ultimately to suspend those file-sharers’ net access if they fail to heed the warnings.
Of course the three-strikes debate has been running wild ever since the record industry first started seriously talking about what they refer to as a “graduated response” system for combating online piracy early last year. And that debate was stepped up considerably this August when Peter Mandelson let it be known that some sort of three-strikes system was likely to appear in the Digital Economy Bill, even though the ‘Digital Britain’ report which informed the proposed legislation wasn’t so keen on the idea.
We all know that content owners and trade unions across the music, film, TV and other creative industries are pro three-strikes, while some artist, author and artist management groups are more cynical of what such legislation can really achieve. Consumer rights groups, pro-file-sharing communities and most internet service providers (with perhaps the exception of those ISPs who also have interests in the content industries, ie Virgin Media and BSkyB) are very vocal opponents of the proposals. As you’d expect, key players and trade bodies representing all those groups spoke in support or opposition of the bill followings its publication on Friday.
Though some who have been vocal opponents of three-strikes to date actually expressed more concern about another clause that has been sneaked into the bill. If the proposed legislation became law it would give the Secretary Of State with ultimate control over intellectual property – so, probably Peter Mandelson under the current government – powers to amend the Copyright Designs & Patents Act 1988 on whim. Well, “for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary Of State appropriate to do so having regard to technological developments that have occurred or are likely to occur”.
This, defenders of the bill will argue, is an attempt to overcome a problem that exists in the age when technological developments happen so fast that the law making process cannot possibly keep up.
Whenever content owners seek to stop one kind of infringement-enabling technology, whether through the courts or through parliament, even when they are successful, normally another newer technology has already taken over as the kids’ infringement-tool of choice by the time a court ruling or law change has been achieved.
One big issue for those protecting copyrights online, ever since the dawn of the web, is that most copyright legislation pre-dates the internet. But some argue that even if copyright laws had been amended at the end of the 90s, like they were in the US, even those laws would now be out of date, such is the speed of development in the digital age.
The government’s Digi-minister Stephen Timms basically said that when asked to defend the “change whatever you like” clause in the bill. Timms: “We want to future-proof the steps that we are taking against emerging online copyright infringement activities which we cannot be certain of at the moment. The proposal is for civil infringement of copyright only, it is not about taking powers to create any new criminal offences and as the bill will make clear, we will consult fully and have to procure affirmative votes in both houses before any power could be used. It would be a very, very public process”.
But some worry that the new ministerial power over copyright rules will give the content-owner lobby the option to secure more draconian copyright-protection measures without said measures being scrutinised by parliament. A lack of parliamentary scrutiny is also likely to reduce mainstream media interest in any new rules. Given the UK’s three-strikes proposals are a lot less severe than those being introduced in France, some wonder if this clause in the British bill is partly there to enable a future government to ramp up the penalties for those who access illegal content online.
The executive director of the Open Rights Group, Jim Killock, said this weekend that the clause “opens the door to a ratcheting up of unwarranted powers without democratic scrutiny”. Killock also reckons that this clause will further rally public opinion against new piracy provisions in the bill, adding: “There is a massive swell of action against this bill, led by creators, citizens and people working in digital industries, who are outraged by this attempt to hijack our rights”.
The boss of The Pirate Party UK, the political organisation set up to lobby for looser rather than tighter copyright restrictions, agrees with Killock. Andrew Robinson told CMU: “Giving an unelected official the power to change laws on a whim is obviously wrong, and I don’t think the public will stand for it. The prospect of Lord Mandeson having the power to increase punishments for file sharing above disconnection and a £50,000 fine, the power to force ISPs to hand over personal information without a court order and the power to impose statutory duties on ISPs is going to drastically increase the number of votes that the Pirate Party gets at the General Election”.
Robinson reckons that even those within the record industry should worry about the “futureproof clause”, because it might push public opinion – the majority of which is probably indifferent towards copyright issues at the moment – into the anti-copyright camp. Robinson: “If I was an industry insider with a vested interest in extending copyright, I would definitely worry that Mandelson has gone too far. There’s a limit to the amount of spying, restriction and heavy-handed punishment that the public will take before getting really angry. The public didn’t really care when it was the Pirate Party arguing about fair use with that cheeky chappie from the Undertones on high-brow Radio 4 panels, but faced with the prospect of an out of control unelected Lord with unlimited powers, the public might just start to give a damn about copyright”.
Of course, many still doubt that the Digital Economy Bill will get through parliament before the General Election, though with the likes of The Pirate Party likely to be increasingly vocal in 2010, and the Tories supporting most of Labour’s proposals, the issues being debated here will continue act or no act.
