I’ve received a response [PDF] from the Department of Culture Media and Sport (DCMS), via my MP, to my concerns about the forthcoming Communications Bill green paper.

I’m meeting my MP to discuss this in person next month so if you can think of anything else I should mention, or if there’s something I’ve missed, please let me know in the comments.

Dear Paul [Blomfield, MP for Sheffield Central]

Thank you for your letter of 27 April enclosing correspondence from a member of the Open Rights Group (ORG), expressing concerns about website blocking to combat copyright infringement and how the interests of the general public are represented in consultation processes.

The Government has hosted discussions between copyright owners, internet service providers, intermediaries and consumer representation on issues around self-regulatory site-blocking to tackle the widespread problem of copyright infringement. However, I should emphasise that this is an industry initiative which we are helping to facilitate and which the Government is observing with interest.

A self-regulatory industry initiative is not legislation. If it were legislation the Government would have to do all manner of extra things, like debate it in Parliament and hold a public consultation, so it seems they think it’d be more convenient to get this done through informal back-channels. Transparency? What’s that?

The Government claims to be “helping to facilitate” the development of this initiative while “observing with interest”. I suspect this means they are saying to ISPs and search engines, “if you don’t do what we want we’ll legislate to force you to – and you won’t like that one bit.” That would put a whole different complexion on the process than the one implied by this letter, which suggests the process is voluntary, and industry-led rather than government-instigated.

The DCMS uses the term site-blocking, corroborating earlier reports that they want to see entire websites taken down, rather than limiting the measures to any infringing material hosted on those sites. By definition this means the Government wants to censor non-infringing content. In fact this has already happened in the UK. I understand that Virgin Media subscribers can no longer access the Pirate Bay blog, for example, though I should make clear that this was by order of a court.

The Government refers to widespread copyright-infringement as being a problem (despite admitting they have no evidence for this assertion). This gives us a hint as to who might be pulling the strings of this operation. For whom is file sharing actually a problem? Not artists – they have more opportunities than ever to connect with fans and make money. Not ISPs nor search-engines – they’re mere conduits – intermediaries between the fans and the content they love. Rarely do the fans themselves, or the public at large, bemoan their greatly expanded access to media – which means it can’t be the Government’s problem either since the Government exists to serve the people (right?) No, illicit downloading is only a problem for the multinational giants of the music and film publishing-industries, and only because they insist on trying to roll back the calendar to the 20th century instead of grasping the opportunities of the digital age. I expect this is yet another misguided initiative by the BPI et al to restore their erstwhile monopoly over our popular culture.

Lastly, the Government hasn’t identified the consumer representatives with which it has discussed its proposals, however they don’t seem to have included the obvious ones (ORG and Consumer Focus) nor do they seem to have done so recently. Minutes of two DCMS meetings in February, obtained by ORG under the Freedom of Information act, show only industry representatives in attendance.

The Department understands that there are concerns about the impact that an industry-led site-blocking scheme might have on consumers and for the wider implications for internet censorship. It is important to bear in mind that the approach is to use existing legal provisions to take action against sites of concern, and that this entails gaining the agreement of the High Court that such an injunction is appropriate. This means that there is a judicial decision at the heart of the action, providing important reassurance that the interests of all parties will have been carefully considered.

Who represents the consumer interest in a High Court hearing that pits the BPI against BT? The outcome could satisfy both these parties yet still impinge on citizens’ rights to privacy and freedom of expression. Copyright owners can already apply to the courts for injunctions to block infringing content, so why do they need to go further and block entire sites, including any non-infringing content they might be hosting?

Your constituent also draws attention to how the interests of the general public are represented in the discussions between stakeholders about online copyright infringement. ORG and others are invited to participate periodically, but it is also reasonable for the Government to be able to convene meetings between different industry sectors to discuss possible approaches without having to invite bodies with a different agenda. What we are seeking to do is facilitate industry-led solutions, and of course anything that emerges must satisfy the important legal safeguards. These are not secret talks, but the opportunity for frank exchanges of views, and the Government thinks that this is a worthwhile exercise.

The DCMS has offered to brief “others with an interest, such as consumer representatives and open rights organisations” on their plans twice-yearly, and presumably after the fact. Meanwhile the private round-table discussions will continue to “meet regularly as a working group to check on progress that is being made both in the regulatory environment and in terms of industry-led initiatives to reduce the level and viability of online infringement of content.” This implies industry representatives will continue to enjoy preferential access to the process and consumer interests will just have to keep on playing catch-up and guessing games. Why is the DCMS scared of giving ORG, with its “different agenda”, a seat at the same table as the industry lobbyists?

As your constituent is already aware, the Government is currently conducting a review of the Communications Act 2003. The Department will also consider, if appropriate, anything arising from relevant discussions as part of the ongoing review process.

Ed Vaizey MP
Minister for Culture, Communications and Creative Industries

The threat is pretty clear – the review is a stick with which ISPs and search engines will be beaten if they don’t do what the media-publishers want. Is there a carrot too?