Tuesday, March 16, 2010

3rd Reading Digital Economy Bill in the House of Lords

Well the Lords didn't do anything about the mess that is the Digital Economy Bill on its 3rd reading yesterday. From Hansard I give you the noble Lord Whitty:
"Lord Whitty:
3.30 pm
I regret to say that during the course of our consideration of the Bill, we have seen one of the worst examples in my memory of the political parties being captured by a producer interest. That applies not only to the Government and the bringing forward of the Bill, but to the opposition Front Benches as well. Indeed, we had the extraordinary position of the Liberal Democrat Front Bench, including the noble Lord, Lord Clement-Jones, who I know to be a decent and liberal chap in most of his political endeavour, bringing forward an amendment-which is now Clause 18-that is actually more draconian than the Government's Clause 17. I hope that at some point, when we reach that stage, they will recognise the error of their ways.
Unfortunately, in terms of the balance of debate within this House, we seem to have a near unanimous position in support of the government proposals. Apart from the noble Earl, Lord Erroll, the noble Baroness, Lady Miller, myself and one or two others who have appeared maverick in this debate, this House seems to have accepted the wisdom of going through a whole range of changes in our approach both to the law and to the way in which our digital media operate. We have imposed police powers on ISPs which are reluctant to accept them. We have threatened several millions of our citizens with exclusion from the internet by administrative decree, with dubious means of identifying who was actually the perpetrator of the alleged

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infringement. We have seen the Government, putatively this House and other political parties backing protectionism rather than competition and innovation, moving towards an exclusion of people from digital access rather than the inclusion that the rest of the Bill-which I fully support-provides. It has landed us with a pretty much unenforceable law that will get a penny back to the rights owners whom the legislation was intended to support.
Out there, however, there is no unanimity at all. There is a very widespread opposition to the Bill from individuals who feel threatened, from parents who are concerned that measures will be taken against them because of their children's use of the internet and from employers who are worried about the same thing in relation to their staff. Surveys conducted by my organisation, Consumer Focus, indicate that 75 per cent of the population do not understand what is lawful and unlawful in this context and that a rather higher proportion, when told what is lawful and unlawful, do not support those laws.
There are alternative ways of moving to a different system of accessing copyright material on the internet. Lawful systems of file-sharing exist in the music industry and elsewhere; it is just that they have a very low recognition by the public. The survey that we conducted showed that, of the 20 such systems that are or have been in operation, none has received an awareness level above single figures in percentage terms. Yet, ultimately, at various points in this debate, we have all agreed that a move to lawful systems of file-sharing is the aim of this measure.
Anxieties about the throttling or suspension of their internet connections have been expressed by people who will not be perpetrators. This includes not only businesses and parents, as I mentioned, but also the hotel trade-which provides access to the internet as part of its services to guests-libraries, colleges and other institutions whose students use the internet and wi-fi facilities. The Government have sort of acknowledged those anxieties but they have done nothing about changing the Bill to recognise them. They say that it will all be taken care of in the wash, as Ofcom develops its code with the industry, and that all these things will be clarified and no one needs to be anxious about them.
However, despite a few ameliorations, this is still a bad Bill. It is bad for the digital rights holders to press their interests in this way, when there are alternatives, and it is bad for the Government to risk alienation of a very significant part of the population by enforcing these measures. My noble friend Lord Puttnam-who probably takes a different view from me in terms of supporting the digital rights owners-said a very wise thing earlier in the debate, namely that the Bill would clearly have benefited greatly from pre-legislative scrutiny in which we could have looked at all the options.
Instead we have a Bill that does virtually nothing to encourage ways of bringing together the rights holders-the ISPs and lawful file-sharing operators-so that new business models could be developed. It could provide to the punters, and certainly to the casual users who are not making any money out of their

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copyright infringement, the ability to access cheaply, freely and flexibly through the new business models provided by those systems.
Surely that is the road that we should go down, to move from the impossibility of pursuing millions of people under these arrangements to a situation where there are lawful means of gaining access and the only people who will continue to be accused of infringement of copyright are those who are making money out of it or who are such mega-multiple-serial offenders that some punitive measures are necessary.
If we are to move to a more positive arrangement where most file-sharing is done lawfully, then an educational process will have to take place. All sides of the House have recognised that. My noble friend the Minister, like others, has said that stage 1 is an educational stage. However, it is not simply an educational stage. It is the beginning of measures whereby a subscriber can be designated and accused of an apparent infringement of copyright, which can eventually lead, through proceedings under the Bill, to a situation where draconian measures to throttle, cut off or suspend digital access are imposed."

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