Thursday, 18 February 2010

The Digital Economy Bill, Clause 17

About a week or so ago the Digital Economy Bill made it's second pass through the House of Lords. Lord Lucas has been one of the most vocal critics of the Bill, especially the controversial Clause 17 which gives the First Secretary of State (currently Lord Mandleson) the power to enforce sweeping copyright reforms without public consultation in the face of future technological developments. Briefly, this section of the Bill would grant the government the power to make changes it sees appropriate to help enforce the copyright held by the content industries (eg the music industry). These powers are so broad they can be applied to adapt any future changes in technology without consultation (emphasis needed!). The Bill also proposes to disconnect illegal filesharers from the Internet after three warnings - commonly referred to as the "3 strikes" ruling. If you want a quick overview of how serious this is, check out the video below:

Back in December '09 PC Pro reported on how Lord Lucas expressed some doubts as to whether the Government's plans to disconnect users, claiming that the entertainment industry hadn't done enough to encourage people to pursue legal methods:
"We 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."
He also raised some concerns that the methods being proposed to pinpoint who was actually responsible for downloading illegal content was inaccurate - the harvesting of an IP address doesn't always guarantee that the person responsible for paying the bill is the person engaging in filesharing activity, especially in households where several people have shared access. The same could be said of the hospitality sector in which hoteliers, bars, cafes and conference venues offer free wireless access to patrons.

Educators have complained that the bill also endangers their businesses and internet provision to the general public (via city-wide cloud-based services) is also under threat because of the insistence that organisations providing net access should be liable for the actions of their customers. The British Library with its public Wi-Fi access would be in jeopardy.

In January 2010 Lord Lucas suggested a number of amendments to the Bill including adding a remedy to help prevent false claims from being made against the innocent by giving them legal recourse to pursue counter actions against the accuser. He also tried to add an amendment that would require copyright holders to detail actual damages done by file sharing in their reports to ISPs notifying them of infringement. There were a total of 299 amendments suggested by the House of Lords. Lords Razzall and Clement Jones proposed one amendment (no. 34) to Clause 4 that stands out, mainly due to its evocation of the Human Rights Act:

Compliance with fundamental rights

In drafting or amending any code, laying any statutory instrument, or taking any other action under sections 124A to 124L of the Communications Act 2003 or under section 302A of the Copyright, Designs and Patents Act 1988, the Secretary of State must demonstrate before such action is implemented that he has considered whether such action—

  • a) is necessary and proportionate to the goal of protecting and enforcing copyright, and
  • b) appropriately balances the interest of rights holders and the interests of the public in due process, privacy, freedom of expression and other fundamental human rights guaranteed by inter alia the European Convention of Human Rights and the EC Charter of Rights."

The safety and privacy of the general public must not be disregarded in lieu of the demands of the content industry.

Earlier this month the Joint Select Committee on Human Rights also claimed that sections of the Digital Economy Bill needed clarification. The technical measures and the powers that are to be given to government were not "sufficiently specified". The fear here is that they might result in sweeping powers which restrict the freedom of expression and the privacy of individual users. Andrew Dismore MP and chair of the Commitee stated:

"The concern we have with this Bill is that it lacks detail ... It has been difficult, even in the narrow area we have focussed on, to get a clear picture of the scope and impact of the provisions."
One of the real concerns is with the lack of "due judicial process" to people accused of illicit filesharing. There is a real fear that the burden of proof will lie at the feet of Internet users who may be unable to prove they are innocent as they may not have the knowledge or skills to do so, nor the space to react to accusations accordingly.

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