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Thursday, 19 November 2009

The Digital Economy Bill - will it come in time?

Nick McDonald of Browne Jacobson has written to the IPKat with the following:

"Her Majesty in yesterday's Queen's Speech said the following: "My Government will introduce a Bill to ensure communications infrastructure that is fit for the digital age, supports future economic growth, delivers competitive communications and enhances public service broadcasting".

The Digital Economy Bill will:

  • Reform the law on online copyright infringement - by creating duties on Ofcom to require ISPs to take action against identified file sharers, and giving Ofcom and/or ISPs the power to disconnect persistent file sharers;
  • Introduce "changes to copyright licensing" - the exact detail of which is as yet unclear;
  • Give Ofcom powers to appoint and fund Independently Funded News Consortia - essentially aimed at encouraging the proliferation of independent news media;
  • Give Ofcom new duties to promote investment in infrastructure and public service media content, and to carry out an assessment of the UK’s communications infrastructure every two years;
  • Support investment in next generation technologies through spectrum modernisation - pretty technical; all about bandwidths, how many of them are available, and who owns them;
  • Update the regulatory framework to make moves to digital switchover for radio possible by 2015;
  • Update Channel 4's functions to encompass public service content on all media platforms - online as well as television;
  • Protect children by making age ratings compulsory for all boxed video games designed for those aged 12 or above.
There is no mention of whether the Bill will echo the Government's Digital Britain Report of June 2009 in seeking to "modernise" (Therefore presumably extend) the fair use copyright infringement exceptions.

Clearly, the main IP change will be in relation to tackling file sharing. The No.10 website describes the new legislation being aimed at:
"tackling widespread copyright infringement via a two-stage process. First by making legal action more effective and educating consumers about copyright on-line. Second through reserve powers, if needed, to introduce technical measures, such as disconnection".
There has been a lot of commentary on this issue in the media over the last few years: Is it achievable? Will it work? Is it desirable? Either way, it appears the Government is going to try. It may not solve the problem immediately, but it will certainly strike a major blow against illegal downloading."

The IPKat thanks Nick for his thoughts, but is not sure himself whether the Bill will even come to pass, given that this government has only a few months left to run and is very unlikely to be re-elected. As for "striking a blow against illegal downloading", the IPKat is even less sure. The whole thing seems to be more like an attempt by the music industry to force through some very ill-thought-through legislation that will do more harm than good (if it does any good at all). For more on the issue, the IPKat would like to point his readers to the recent writings of Cory Doctorow and the Open Rights Group, both of whom have a lot more to say on the subject.

More sledgehammers here; more nuts here.

5 comments:

Paul Jakma said...

Well the Guardian says Mandy is pushing to have this bill pushed through as a no-vote statutory instrument:

http://www.guardian.co.uk/politics/2009/nov/19/mandelson-copyright-filesharing-murdoch-google

And no, this won't turn back time and undo the arrival of the mass digital copying machine (aka "internet").

Anonymous said...

Let's hope that this is Lord Mandelson's third and last strike. This sounds like an embarrassing and gratuitous capitulation to American entertainment lobbyists.

Nick said...

The issue of illegal downloading is of course going to create some considerable debate. Couple of points I would make:

Firstly, it's true that, given that the present parliamentary term has 6 months to run, there must be some doubt as to whether a bill would make it through both Houses before the General Election. However, these proposals are not opposed by the Conservatives (which could be for one of a variety of reasons). Indeed, Jeremy Hunt, the Shadow Secretary of State for Culture, Media and Sport, confirmed the Conservatives' support directly in a parliamentary debate on 9 November 2009. Therefore legislation is more likely than not to find its way to the statute books irrespective of who wins the next election. Further, it's not clear that the changes will necessarily require primary legislation anyway, as another commentator on this blog has pointed out.

Secondly, I agree these proposals have certain difficulties, not least the extent to which ISP's will be able to share data to prevent persistent offenders from signing up to other providers once they've been cut off, and of course they will not solve the problem of filesharing in one fell swoop, but they will certainly have an impact. Moreover, the UK is not isolated on this issue, the idea actually comes from France. For good or ill, I think we'll ultimately see this approach adopted across the EU.

Finally, the online debate on this (and David rightly refers to a number of knowledgeable online commentators) is inevitably one way, since it involves proposing restrictions on internet freedoms and those who write online blogs are generally going to be against that. Yet, if you speak to individual, struggling musicians they generally support the proposals. It is simplistic to view this as simply ill-considered legislation aimed solely at protecting major record labels. This debate should, however, be widened to also focus on whether creative artists such as musicians have adequate protection against exploitation by the such corporate entities. If we are seeking to protect artists' rights, let's ensure we are actually doing that. For example, why not regulate the extent to which labels and publishing and management companies can require artists to assign copyright in their work and waive their moral rights when they sign contracts.

pjakma said...

@Nick,

These proposals certainly will have an impact on file-sharing. However, the impact will NOT per se be to reduce the scale of file-sharing.

The current P2P technologies are *far* from what is theoretically possible wrt hiding the origin of file-sharing, and hiding the extent to which participants can be said to know what exactly they are sharing. Systems already exist to allow for reasonably anonymous peer-to-peer file-sharing, e.g. Freenet. These systems are slightly less efficient than the less obscured P2P systems popular today, and so have seen relatively use and development. However, they do exist, they are practical and the technology can almost certainly go much further.

So yes, there'll be an impact: it will eventually become much harder to pin the sharing of a file on a specific individual. The police and MI5 will no doubt be delighted to see the development of this technology spurred on and its use proliferate... (See recent newspaper article where MI5 commented on this).

John H said...

I'd be interested to see some more commentary here on clause 17 of the Bill (conferring extensive powers to amend the CDPA 1988 by order) and its prospects for getting onto the statute books. This seems a truly alarming provision that takes future changes to copyright law almost entirely out of the hands of parliament.

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