The Digital Economy Bill was debated for the first time in the UK’s House of Lords this week.
As is the case with the bill as a whole the main points of discussion centred around the provisions to deal with copyright and p2p filesharing, indeed it even offered an opportunity for Peter Mandelson to practice his stand-up comedy routine: ” I recognise that this House is probably the one place in Britain where peer-to-peer file-sharing is associated more with passing notes in the Lords’ tea room than with piracy”
He hit out at critics who have suggested that the government’s policy to tackle the problem of illegal filesharing focuses on coercion, saying this “is quite wrong” and that “there is a primary role for education about the value of copyright, and a very clear obligation on the creative industries to get their act together and build business models that provide access to content at a cost that makes the risk of breaking the law an unattractive option.”
It seemed that some of the critics he referred to were in the Lords. Lord Lucas seemed to sum up the views of many when he questioned where was the stick for the entertainment industries to go with the truck load of carrots the government were providing: ” We also need to bear in mind that the problems now facing the industry are, to quite a large extent, of their own creation. The industry has been extremely slow to listen to the demands of its customers, and has had something of an abusive relationship with them, seeking to punish them before thinking of how to serve them better. It has taken a decade for the industry to produce sensible alternatives to illegal file-sharing, and the fact that a generation of people have become used to an illegality comes down to the industry’s sluggishness. It is still slow. The football people have complained that there are sites where people can download streaming video of premier division matches. All that the companies offer is an annual contract for several hundred pounds. They do not offer per match deals at a reasonable price. If companies treat their customers in that way, they really should not be surprised that their customers try to get round the system.”
The presumption of innocence and due process where also high on the minds of some Lords, with Lord Whitty making the comparison with the theft of a physical product: ” the shoplifters who steal the actual DVD, which is worth a lot more than the rights of an individual download to the rights holders, have a fair trial and are subject to due process. They do not receive a letter, but, at the first attempt of enforcement, they are subject to due process. However, in this system, due process enters the equation only at appeal stage.”
Many of the Lords criticised the government for not delivering a draft of the code which would set out how the process for alerting people about alleged infringement and the appeals process would function. This, the Lords said, was the critical part of the provisions they were being asked to approve. Lord Clement-Jones expressed the views of several Lords when he said “the terms of the all-important initial obligations code must make it clear what those thresholds are. The thresholds must be proportionate and must not be set too low. We should know what they are before the Bill goes through the House.”
Other Lords questioned whether the internet provisions in the bill would actually do more to stifle the growth of a digital economy rather than growing it. Baroness Miller pointed to the potential effect on free wi-fi networks, pointing to the planned town-wide network due to launch in Swindon. She also agreed with Lord Lucas and questioned why the bill choose not to encourage new models but to protect the old models and why it “seeks to make one industry that has seen phenomenal growth, investment and innovation-the internet service providers-pay for the protection of another sector.”
One issue, however, united the Lords more than any other and that was Clause 17, which gives the government “a power to amend the Copyright, Designs and Patents Act 1988 in future, to reflect fast-changing technology.” Lord Razzall summed up the feeling on the clause – called a Henry VIII clause by Lord Clement-Jones - by stating:”Clause 17, which effectively gives the Government power to alter copyright law by statutory instrument, should be rejected. .. I just think that if we are going to alter copyright law it has to be done by primary legislation, rather than by statutory instrument.”
This is a view echoed by Google, eBay, Facebook and Yahoo who have written a joint letter to Peter Mandelson this week asking for clause 17 of the to be deleted from the draft law.
According to the four “Clause 17 – which gives any future Secretary of State unprecedented and sweeping powers to amend the Copyright, Design and Patent Act – opens the way for arbitrary measures. This power could be used, for example, to introduce additional technical measures or increase monitoring of user data even where no illegal practice has taken place…This clause is so wide that it could put at risk legitimate consumer use of current technology as well as future developments. We all acknowledge that new business models need to emerge to support creative content. They are inherently risky and entrepreneurs rely heavily on there being a consistent and stable approach to copyright enforcement. This clause would inject an unprecedented level of uncertainty in this regard. The industry as a whole had hoped that the outcome of Digital Britain would be a clear, workable set of principles by which the industry could operate. On the contrary, Clause 17 creates uncertainty for consumers and businesses and puts at risk the UK’s leading position in a digital Europe.”
The Bill itself has now goes into a Committee of the whole House of Lords where the first amendments to the bill will appear, and hoefully Clause 17 - for starters - will disappear.
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