Copyright Law in the UK

March 15, 2010
For an informed view on connected entertainment in the UK & Ireland, visit Cue Entertainment

Piracy has been on the agenda again over the past week. Film Distributors Association President Lord Puttnam said that children must be taught that downloading copyrighted material illegally is wrong. Film content must be available legally online to discourage the use of illegal download sites, he said, but “the concept of intellectual property and its value needs to be embedded inextricably into the school curriculum”.

The Oscar-winning former film producer said it is a mistake to allow internet service providers to pretend they are not part of the retail chain. “If you or I wanted to open a chemist shop, we would have to pay attention to health and safety and the nature of the products that we sold,” he told The Guardian. “Somehow or other we’ve allowed the ISPs to drift into a mindset that’s allowed them to think that they are somehow inured to the forces of the law.”

Some of the country’s top ISP executives were heard to disagree as the Digital Economy Bill makes its way through the House of Lords toward a third reading on March 15, which offers the last chance for amendment before moving to the Commons.

Sponsored by Lord Mandelson at the Department for Business, Innovation and Skills, the bill is intended to give the legislative a framework that will ensure the UK is at the forefront of the global digital economy.

It is based on the white paper “Digital Britain Final Report”, which was published in June 2009 after a period of industry consultation. A specific commitment to legislative change and the introduction of measures to tackle illegal file sharing was promised at that time and visitors to the BSI web site today are told that the current bill “will drive the UK’s vital creative and digital sectors to bolster future growth and jobs”.

Kent MP Derek Wyatt, however, fears that the bill could be rushed through the Commons without proper discussion in a process known as the “wash-ups”, designed to ensure that pending government legislation is passed before a general election.

Wyatt spoke on Thursday at a meeting of the British Computer Society where BCS President Elizabeth Sparrow said “The bill could have huge consequences for online activity that are currently poorly understood.”

She acknowledges the importance of the creative industries and the need for copyright legislation but she warns that, “Better legislation is preferable to hurried legislation”.

In the parliamentary debate on the bill, Lord Puttnam expressed a similar view. “Within the next two or three years, there will be another bill before this house that will be created to deal with the deficiencies of the present bill,” he said during the committee stage. The house was discussing amendments to the controversial Clause 17, which deals with sanctions to be applied against illegal filesharing and the role of the ISPs in preventing it.

“Many of us in this house have come in having just had our ears bashed – either by the record industry or some other aspect of special pleading,” Puttnam said later. He suggested that much more time was needed to assess the implications of Clause 17, commenting that the lobbying process that has gone into the bill has been destructive and not very much help at all.

The BPI, which represents the interests of the record industry, has been in the forefront of attempts to lobby politicians of all flavours on the Digital Economy Bill and, according to some reports, they played a major role in what was to follow.

As the bill entered the report stage in its passage through the Lords, a new amendment was introduced that surprised many observers. The “smoking gun” for the wording points directly at BPI Legal, which drafted “a wholly new Clause 17”, almost identical to Amendment 120A that was tabled by Lord Clement-Jones.

Amendment 120A might not have the resonance of the French law known as “Hadopi” – the three strikes law, which caused so many problems for President Sarkozy last year – but it bears many similarities. Earlier this week, researchers at the University of Rennes said that illegal downloading in France has increased by 3% since Hadopi 2 was introduced last autumn.

According to a study of 2,000 internet users in Brittany, filesharers have been finding other ways of accessing illegal content online without getting caught. Just 5% have stopped illegal downloading while 10% abandoned peer-to-peer services and switched to other ways of feeding their habit. It was also revealed that the result of the complex legislation is that no warning letters have been sent out so far.

In the House of Lords, Amendment 120A, replacing the government-sponsored Clause 17, was unexpectedly carried at the report stage, leading a group of movers and shakers in the digital world to rise up and protest in the national press at what they describe as “a very serious step for the UK to take”.

The 18 co-signatories of a letter to the Financial Times ranged from Virgin Media CEO Neil Berkett and Google UK MD Matt Brittin to Stephen Fry, Orange CEO Tom Alexander and BT Chief Executive Ian Livingstone.

“Put simply, blocking access as envisaged by this clause would both widely disrupt the internet in the UK and elsewhere and threaten freedom of speech and the open internet, without reducing copyright infringement as intended,” they wrote.

There is a degree of special pleading, since many of the organisations represented in the letter are ISPs or run online services such as Facebook and YouTube, but clearly the unexpected ramping up of potential obligations and possible penalties caught the writers by surprise.

The letter continued, “This debate has created tension between specific interest groups and the bigger prize of promoting a policy framework that supports our digital economy and appropriately balances rights and responsibilities. All parties should take steps to safeguard this prize and place it at the heart of public policy in this area.”

Amendment 120A – “Preventing access to specified online locations for the prevention of online copyright infringement” – now becomes the new Clause 17 and is likely to proceed to the Commons in that form. The forces ranged against any form of online control will be encouraged by this open dissent and, with the election approaching, an unsatisfactory bill may be passed into law in the “wash-Ups.”

Mark Thomson MP told the BCS meeting, “In 20 years’ time we will look back at the bill and say: ‘What was the government trying to do?’” Postal Affairs and Employment Relations Minister Lord Young of Norwood Green might give us a clue.

“Online copyright infringement is estimated to cost in the region of £400 million per year,” he told the House of Lords during the debate. He described the loss as a dampener on the creative industries and their ability to build new commercial online models. “Blocking access to websites is an enormous step,” he said, noting that many sites hosting infringing content might also contain legitimate material. “Simply leaving it to the courts to do that without any guidance or assistance does not seem sensible,” he said.

The trickiest issue is likely to be links to sites that would be caught by Clause 17 but that don’t have any control over or even knowledge of the content to which they link. He said that search engines could end up on the wrong end of a blocking order: “Something that I think will cause significant public disquiet.”

In an echo of what is happening in France, Lord Young warned of ways round the proposed blocking of specific sites. Noting that up to 7 million people might be infringing copyright online, he said, “The adoption by 6 or 7 million people of evasion technologies would be a very substantial change in internet user behaviour. It also assumes the service provider’s responsibility even when it cannot reasonably be in a position to prevent the harm complained of.”

Consumer Focus Chairman Lord Whitty noted that there is significant hostility to the threat of intervention whether through bandwidth throttling or the suspension of the internet connection. “We should go back to a strategy that is aimed at moving everybody onto a lawful system,” he said, rather than apply the sanctions proposed in the bill: “It includes nothing about a lawful system, nothing about support for the creative industries and nothing about making access easier and more flexible.”

According to Lord Whitty, Consumer Focus research shows that 75% of consumers know they don’t understand what is lawful and what is unlawful. They also believe that copying a CD or DVD they have bought to another format is legal while 86% do not believe that it should be unlawful.

Education is clearly needed at all levels of society, though if the importance of intellectual property is to be added to the school curriculum it will take a while for the knowledge to work its way through to the legislators of tomorrow.

It is a bizarre quirk of the British parliamentary system that the key debate on the country’s digital future should take place in the hereditary chamber of parliament. Without the benefit of a GCSE in piracy prevention, it might be too much to hope that their Lordships will come up with a satisfactory solution to the problems of today.