Lilian Edwards on the Digital Economies Bill

Look no further than Lilian Edwards' blog for a terrific analysis of Peter Mandelson's 3 strikes proposals published in the UK government's digital economy bill last week.

"Clauses 4-17 of the Digital Economy Bill introduce an “initial obligations” regime for ISPs, whereby subscribers accused of filesharing by rightsholders will be sent warnings of alleged copyright infringements, or “strikes”, by their ISPs; and a “technical measures” phase, to be green-lit only after evidence has been amassed that warnings do not work (but see below), which will allow sufficiently warned offenders who still seem not to have seen the error of their ways to be disconnected from the Internet. Traffic slowing and banning of access to certain sites eg the Pirate Bay, may also become available measures.

The Bill also, almost as an after thought, adds a “Henry VIII” clause, which allows the relevant Secretary of State (currently Lord Mandelson of Mordor sorry BIS) to make new copyright law in any area of Parts 1 and 7 of the Copyright, Design and Patents Act 1988 (CDPA), by statutory instrument (SI) not primary legislation, if justified by speed of technological developments (even ones that haven’t happened yet – see proposed new s 302A of the CDPA.) So essentially, new and important copyright laws (not exclusively to do with filesharing – DRM, fair dealing and user rights might all be affected) are to be made under the public radar, and without proper Parliamentary scrutiny. anytime, anywhere (hereafter, the “Martini clause”).

There has been a great deal of coverage of these matters – see eg here and here – so I will only point out a few matters of detail which have struck me as particularly worrying, on top of my, er, well-ventilated previous concerns about the principle of a regime of “three strikes” at all. Most of the press attention has focused on the posited disconnection regime, since of course the sanction is so far reaching. But the warnings regime, which if the Bill passes is likely to be of more immediate concern, is also staggeringly poorly drafted"

See also Lilian's follow ups on Thursday and Saturday. Read, re-read and inwardly digest and it would be good, if unlikely, if policymakers did likewise.