Beyond the Digital Economy Act 2010
The Digital Economy Act 2010 was described in the Lords yesterday by the Earl of Erroll as a "dream for lawyers." The inference that this is bad legislation, poorly worded, the impact of which would not be clear until large sections had been decided in court.
I hope I'm not going to be the one paying to defend myself in a case that could last for years!
This horrendous act must be repealed at the earliest opportunity, but realistically this is unlikely.
The Conservatives voted with Labour to guarantee the Digital Economy Act safe and speedy passage despite raising concerns.
The Tories attempted to play both camps - satisfy Big Media yet tell the mouthy Twitterverse that they'd review the whole act if they came to power. Note the word review, not repeal.
Jeremy Hunt described the bill as an "Amstrad" when what he wanted was an iPod. But then he proceeded to fork out for the Amstrad anyway by voting the bill through.
Incidentally, and I get to this point later, Jeremy may have wanted an iPod but with our current outdated copyright laws he's still technically infringing copyright if he dares to copy a legally-purchased CD onto his own iPod!
And I notice by opposing the Landline Tax in the Finance Bill and Orphaned Works clause of the Digital Economy Bill the Conservatives attempted to please two key groups: photographers (associated with the media) and the sizeable "grey vote", who were understandably concerned that their primary communications tool was about to be taxed to fund developments they were unlikely to ever benefit from.
Clearly there's a focus from CCHQ on certain groups of voters, and the Twitterverse is not included!
One small credit to the Tory benches - much of the bite has been taken from the bill. The lobby groups have spent stacks of cash getting this Act of Parliament, which does very little to address the problems caused by those who facilitate mass abuse of copyright. In the process these lobby groups have alienated themselves in the eyes of internet users and music "consumers".
The main loser from this act is the general public. An end to shared WiFi connections and a massive burden on any ISP, which will be bad for consumers - who now would want to enter the ISP market and challenge the big ISPs on price and performance? Given the loose wording of the bill, who'd even want to launch a website with any level of user content?
But one theme echoed round the main chamber of the Commons during the brief debates on the bill. Intellectual property rights are important. Most acknowledged the bill was flawed, but then concluded it was better to do something rather than nothing - Austin Mitchell being one brave Labour MP who stood up and said in this case it was better to do nothing, at the risk of alienating a whole generation.
Intellectual Property rights are important in a modern developed economy.
But copyright has lost credibility.
Unless the Conservatives or other incoming government has a policy to replace the deeply flawed "Amstrad" (I'm just quoting Hansard, so please don't threaten to sue!), I believe the act is here to stay.
What I urge, as well as repealing the act, is a wholesale review of fair use in copyright to help restore credibility. Only with the public on side will music and other art forms recover from this massive "internet relations" disaster.
What is needed? Much greater recognition of fair use, especially not-for-profit mash-ups on personal websites.
A statutory licensing body is required for the occasions when samples and incidental inclusion of other people's works will still not fall under fair use, to make it easier and financially viable for creators to take an "accidental success story" (i.e. a mash-up on YouTube) into the commercial arena.
Government must legally recognise whistle-blowing as fair use, and allow any letter sent by or on behalf of an organisation to be published wholesale on any website. Given the rise of the power and political influence of massive corporations it's clearly in the public interest to allow public scrutiny of corporate behaviour and not let powerful businesses hide behind censorship in the name of protecting copyright.
Democracy benefits from a free press, and corporations have increasing power in politics, so people should be free to hold opinions about corporations, publish these opinions and back them up with leaked letters and documents, where available.
Censorship is not the answer to a minor civil crime. Heads need knocking together around the world to drop the over-reaching land grab that ACTA appears to be and focus on a simple treaty which allows website owners convicted in one country of serious infringement to be prosecuted in their home/host country.
This simple principle could apply to all kinds of internet crime. A web hosting treaty with narrow scope, safeguards for free speech and freedom of expression, rights of appeal and very real benefits to global society.
Much of the collateral damage from the Digital Economy Bill comes about because of technical limits to forensics. We can't pin the infringement on an individual person so we'll go after the connection owner. This is obviously very worrying for shared houses; pubs, hotels and cafes with shared WiFi; professionals like myself who use said pubs, hotels and cafes...
That's why we need to set up a politically independent body of internet experts to develop realistic legislation targeted at specific groups engaging in criminal behaviour, and until this body finds solutions that reach a better balance protecting individual rights of privacy, security and expression then the existing Digital Economy Act must be repealed.
The next government must set up a Digital Assembly to develop digital legislation. Several groups have started talking about how such an assembly could work. One such emerging idea is the Adelphi Charter.
And finally there's education. Are young people even aware of the powers and benefits of intellectual property in a developed modern economy? Instead of harping on to children about not downloading, instead they should learn about how a major feature film is funded. Let them come to their own conclusions about the solution.
We can't have a society criminalised, yet clearly a free-for-all would see a massive reduction in funding of any feature film. I know many have already told me I'm wrong on this but there does have to be some protection for some uses of certain art forms. But not until we can find an acceptable balance.
On the topic of education, rights holders need educating too! They see their personal work as theirs and theirs alone, yet they chose to put their work in the public domain and make money from their fans. Without the public they would have earned nothing!
Contrary to popular belief, the internet is not about "free". It's a great tool for reaching mass markets with very low margins. 69p per downloaded track is NOT a very low margin. A song costs relatively little to make, distribute and sell. A margin of 1p on top of the sales and distribution costs will make the artist £10,000.
That's not an immense amount, but a million downloads is small beer. If a track on iTunes costs 9p instead of 79p, how many more copies would be sold?
And singles are an excellent way of promoting your work to new followers. Do the artists even need to make a margin at all? Is it just an investment with returns coming from concert sales and mechandise?
Flight of the Conchords can sell-out an arena gig in minutes. Some of their best clips are on YouTube and have in excess of 10 million views. People still go out and buy the DVD box sets.
The moguls and middlemen are not needed now the artists can connect directly with the broadcasters, consumers, concert-goers.
This perhaps is why the music industry around the world is running scared. There's very real indications they actually want to increase the price of downloading one track via the internet, but they first need to stamp-out the piracy.
Much of the Digital Economy Act is now law, but the argument has really just begun.