My Digital Economy Bill letter to the the House of Lords Science and Technology Committee

Dear Lords and Ladies of the House of Lords Science and Technology Committee

I’m writing to ask you to represent the voice of UK citizens during the passage through the House of Lords of the Government’s Digital Economy Bill.

I am deeply concerned by the measures this Bill would introduce, and given that my MP seems unwilling to represent my views or even to engage with me in a debate about them, I’m appealing to the House of Lords for representation. I chose to write to you as members of the Lords Science and Technology committee in the hope that you will weigh the Government’s proposals against objective evidence, accounting for bias on all sides including my own, and arrive at proportionate and evidence-based conclusions where, in my opinion, the Government has not.

The main issues with the Bill as it currently stands are:

  1. Problems with due process procedures and indiscriminate sanctions targeting Internet users accused of copyright infringement.
  2. Extremely wide powers to amend copyright law with minimal oversight or scrutiny.
  3. Reduntant powers to nationalise Nominet – the body responsible for the .uk top-level domain.

It is the provisions to tackle copyright infringement on the Internet that I find most worrying. The Digital Economy Bill says much about how those accused of illegally sharing copyright material should be punished yet it contains few measures that will actually strengthen the UK economy by enabling digital business to thrive. The digital genie cannot be put back into its 20th century bottle. Copyright infringement is wrong however businesses must adapt to a digital Britain or they will die.

1. Copyright Infringement on the Internet.

Disconnection is not an appropriate sanction for copyright infringement. The damage caused by such a punishment would be indiscriminate and collective, imposed on households or businesses rather than an individual infringer, and could be very severe, hampering people’s jobs, businesses or education. Financial sanctions proportionate to the actual damage caused, against a test of evidence, would be more appropriate.

The standards of evidence relied upon in the Bill are low. Errors in recording such evidence are common, and in any case evidence can never identify an infringer, only an account-holder. However the Digital Economy Bill currently allows punishments to be imposed on people who are merely accused of wrong-doing on the basis of this flimsy evidence. Furthermore, the Bill fails to impose a duty on rights-holders to make sure evidence and accusations are fair and accurate. No mention is made of the roles of libel, malicious falsehood or data protection law.

The Government has attempted to assuage some of these concerns by including an appeals process, however there is no obligation to tell people they can appeal, and no legal aid would be available to help with necessarily technical defences unless the matter went to court (a process that might take years). The appeals themselves do not extend to any discretion exercised in imposing a punishment, which is unreasonable. A right of appeal is not the same as a trial. Appeal presumes guilt – this is wrong. People should be presumed innocent until they are proven guilty, the accused should be allowed their day in court and only people who are proven guilty should be punished.

The government has said that introducing disconnection as a punishment is a last resort however the trigger for the imposition of so-called “technical measures” is open to abuse. Evidence from Ofcom would be supplied but the Secretary of State may order the sanctions into force in view of such a report or “any other consideration”. This would encourage lobbying by vocal rights-holders, such as media content companies with vested interests, to secure decisions that maximise their shareholders’ profits without taking into account objective evidence or the rights and needs of citizens. This may damage the valuable communications sector and discourage music and film rights-holders from innovating towards more sustainable and modern business models.

The Government proposes to introduce “technical measures” if its target of a 70% reduction in copyright infringement is not met within a year. This appears to be an arbitrary threshold. In addition, there are no accurate measurements of the current level of copyright infringement, and the Government has not said how it proposes to test whether its target has been met. An objective quantification of Internet copyright infringement is technically and legally problematic: technically because identifying and classifying all UK Internet traffic as it traverses the Internet would tax the state-of-the-arts of computer science and engineering; legally because firstly the copyright status of works depends on many complex factors so is not easy to determine automatically, and secondly, the Regulation of Investigatory Powers act makes it illegal for ISPs to employ the kind of communications interception required. Meanwhile wildly varying estimates of the cost and prevalence of copyright infringement continue to be circulated by all sides in the debate. The scientific and statistical rigour of these reports is questionable.

I mentioned that the technical process proposed to identify infringers can only trace back as far as the account holder of the connection used. The Bill sidesteps this issue by making account-holders responsible for the actions of others using their connection. This liability will adversely affect many businesses such as Internet caf├ęs, pubs, hotels, libraries, community centres, schools, colleges and universities, all of which share their Internet connections as part of their business models. Many people extend to their neighbours and communities the use of their Internet connections as a public good. The Bill puts all of this activity in jeopardy: it may bring about the end of the wifi hotspot in the UK.

2. Statutory Instruments

The Bill allows the Secretary of State to amend copyright law by statutory instrument. This would create massive uncertainty and business risk for online service-providers with a consequential chilling effect on innovation and investment in the sector. Amending the law by SI will prevent the Lords from scrutinising changes, and by convention, the Upper House does not oppose SIs approved by the Commons. Thus the Government of the day would be able to impose changes to copyright law without proper debate or scrutiny. This would further open copyright law to “special pleading” and unbalanced, politicised decision-making.

3. Nominet

The last provision that I want to bring to your attention grants Ofcom the ability to “nationalise” the .uk domain registry Nominet. This is inappropriate for a functioning self-regulatory system such as the one that currently exists. The proposed power would lend Ofcom an undue and unnecessary influence over this independent body. Existing emergency powers to take control of vital national infrastructure are sufficient. Furthermore the current wording of the provision is so poor that any domain registry operating in the UK would be subject to these powers. The many small countries that operate their Internet domain-registries through UK providers would find them subject to UK control. They would be likely to move their business out of the UK in response.

Conclusions

I believe the Digital Economy Bill has many serious flaws that, if they are not rectified, present a clear danger to the UK economy, the future of the Internet in UK, the freedom of its citizens to express themselves and engage in society, our cultural commons and many opportunities of the digital age that are yet to be discovered.

Please will you represent my views to the House of Lords during the second reading of the Digital Economy Bill tomorrow?

Given the urgency of this matter, perhaps you could also pass on this message to your colleagues on the Science and Technology Committee – Lord Broers, Lord Cunningham of Felling, Lord Krebs, Lord May of Oxford and Lord Warner – who do not list a public email address.

I would also be interested to hear your views on the points I have raised.

Yours Sincerely, etc.

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2 thoughts on “My Digital Economy Bill letter to the the House of Lords Science and Technology Committee

  1. “the copyright status of works depends on many complex factors so is not easy to determine automatically,”

    In fact Richard it is completely impossible in many cases for an ISP to have any idea whether or not the downloading of content is a copyright infringement.

    In particular consider text and still photographs. To the extent that there is a copyright licenses issued by the copyright holder on behalf of the end user. the terms of such license are only known between the two parties. The ISP has no knowledge of them. Downloading a comp image from a stock agency website may be completely legal. Copying the full text of an newspaper story may not be, although that might depend on the subsequent usage.

    One cannot assume that this bill considers all types of copyrighted content equally. It seems solely directed at motion pictures and recorded music.

    As far as text and still photographs are concerned, it is an illusion to thing that this assists creators in any way.

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