Tuesday, 2 March 2010

The Digital Economy Bill #debill summary to date

Late yesterday afternoon amendments made to the Digital Economy Bill (Twitter hashtag #debill) were heard in the House of Lords. This is a controversial bill for a number of reasons, not least the threat of disconnection for illegal filesharers without due legal recourse, but also for the sweeping powers the Bill seems to give to Ofcom to regulate 'broadcast' content (ie the content that a partial newspaper or press publisher can host on their website), thus jeopardising press freedom. Writing in the Guardian last November, Lillian Edwards, a professor of internet law warned how the Bill would jeopardise open wi-fi spaces. Universities and libraries have also complained about the Bill's impact.

For the uninitiated text from the original Bill can be found here and the amendments can be found here.


There has been a great deal of interest in this Bill from people interested in copyright and what it might mean to them in the future. Indeed, the Open Rights Group have been actively lobbying to raise public awareness, and several of their members provided excellent Twitter commentary whilst the debate was taking place (notably Glyn Wintle @glynwintle and Florain Leppla @florian107).

In the blogosphere photographer, Philip Dunn, wrote one of the most compelling and lucid criticisms of the Digital Economy Bill. I'll have to link to the Google cached page hosting the piece as his host received so much attention the server was closed. [Edit: Paul Bradshaw @paulbradshaw is hosting the article via the Online Journalism Blog]. His main bone of contention was with what the Bill describes as 'orphan works' under Clause 42 - these are typically works where it's difficult or impossible to contact the copyright holder. This situation can arise for many reasons, not least that the author may never been publicly known because the work was published anonymously or the work may have never been traditionally published at all. The concern in this context is that the bill may mean that photographers might lose ownership

You can find excerpts of his argument below:
Photographers to lose copyright protection of their work

This startling and outrageous proposal will become UK law if The Digital Economy Bill currently being pushed through Parliament is passed. This Bill is sponsored by the unelected Government Minister, Lord Mandelson [sic].


The idea that the author of a photograph has total rights over his or her own work – as laid out in International Law and The Copyright Act of 1988 – will be utterly ignored. If [sic] future, if you wish to retain any control over your work, you will have to register that work (and each version of it) with a new agency yet to be set up.


International Law, through the Berne Convention for the Protection of Literary and Artistic Works, recognises the ownership rights of the creator of the ‘property’. This enables image owners to control how their work is used, and whether it is used at all.

International Law will be ignored by the British Government and this new Act will overturn more than 150 years of UK copyright law.

If that wasn't enough reason to be concerned, there are even more problematic implications:

Photographers are to lose all effective rights to take photographs in public places.

Not content with taking away photographer’s copyright, another section of this Government is proposing sweeping changes to your freedom to take pictures in public places.

The Information Commissioner’s Office (ICO) has deemed that a photograph taken in a public place may now be considered to contain ‘private data’

This means that if you take a picture in the street and there is a member of the public in the shot, that person has the right to demand either payment – if you wish to publish the image – or that you do not publish it. In fact, according to the ICO. There does not actually have to be an objection, it is up to the photographer to ‘judge’ whether the subject might object.

You can find more posts by Philip Dunn over on www.photoactive.co.uk
Philip goes on to question the sense of such a decision when the average Briton is captured on surveillance camera as much as 300 times per day! It also calls into whether or not a photographer can be prosecuted for uploading an image featuring members of the general public to a photo sharing site like Flickr or Facebook.

Exactly how this can be policed or enforced remains to be seen, especially when the services listed may be outside the national jurisdiction of the UK. Already, Section 76 of the Counter Terrorism Act has deemed it illegal to take photographs of police officers - something that would render the recording of Ian Tomlinson's death following police intervention during the G20 protests a crime. Critics fear this may lead to people being unable to record or photograph legitimate public protests which frequently feature the police.

Back to the Bill

Another area of concern was addressed by Conservative front bencher Baroness Buscombe (Chairman of the Press Complaints Commission), a point I alluded to briefly in the introduction. She pointed out that the phrasing of the Bill seemed to give Ofcom the power to regulate what was described as "broadcast material". The concern here lay at how that term was interpreted. Currently Ofcom regulates broadcast television content whilst the PCC deals with matters involving the press. In the context of news this is very important and the rules governing "due impartiality" are applicable to broadcast content, but not to the press which is permitted to be partial (ie the oft-quoted 'freedom of the press').

Lord Puttnam supported Baroness Buscombe in this matter by expressing his concern over what can be described as "broadcast" in a converged multiplatform media environment by citing the example of material rejected by a Public Service Broadcaster which then goes on to be picked up by a partial press publisher and is subsequently hosted on their website. Does Ofcom or the PCC regulate in such matters? Lord Davies' response was less than precise in that he described broadcasting as that pertaining to be the type of content appearing on television. The way in which audio and video content is remediated in the digital age poses more questions of this Bill than can be answered by its proponents, so it seems.


Lord Puttnam (a former Chancellor of the institution in which I work) expressed some anger at the fact the Bill was not going to be referred to the Information Commissioner, responsible for dealing with privacy issues. Lord Young (who is co-sponsoring the Bill with Lord Mandelson) indicated that such a deferment would delay the Bill from being passed. It seems the government would rather pass a Bill that is deliberatively vague, poorly written and ill conceived which would need to be rewritten rather than make the appropriate amendments first!

Lord Puttnam accused Lord Young of attempting to rush a Bill though the House "that none of us is particularly proud of" and which hasn't been discussed appropriately. He also expressed concern at the "extraordinary degree of lobbying" that those involved in drafting the amendments had come up against from the creative industries. Lord Whitty expressed concerns that the Open Rights Group have been actively campaigning against: that the consumer accused of infringement will not be able to defend themselves in a court of law.

Make no mistake, this is a Bill which seeks to favour the rights of the content industries over the rights of individuals who will be labelled as guilty until proven innocent. They will be pit against the strong arm of the content industries and their financial powers, with the burden of evidence placed at their feet to prove their innocence.

ISP TalkTalk has already expressed their concern at this Bill:
"The Digital Economy Bill will give rights holders the power to act as a judge and jury, allowing them to demand that ISPs disconnect their customers without having to prove their case in a court of law. TalkTalk is the only major ISP that has said it will simply refuse to do this and will fight its case in every court in the land and in Europe if it has to."
It's still not too late to get involved and have your concerns voices. Visit the Open Rights Group's website today and find out what you can do to be heard.


nb: apparently #debill is an appropriately hashtag - in Polish it means 'moron'. Thanks to Falkowata for that.

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