House of Lords debates the digital economy bill

Peter Mandelson’s digital economy bill, the horror story I’ve written about before, made its first real appearance in parliament last week. The good news is there are people in the House of Lords determined to stand against it.

The bill, say its supporters, will increase broadband access, develop the UK’s creative industries, ensure public service broadcasting continues to be excellent, and update copyright law. While it may be successful in some of these areas a lot of the ideas are at best vague and at worst completely wrong.

It has some very worrying propositions. Clauses 4 to 17 particularly seem intent on making financially healthy companies blow their money supporting the out-dated, sluggish, stubborn record companies and film studios. The proposals for copyright are very concerning. The Guardian, Boing Boing, and the Open Rights Group have all discussed these problems.

Last Wednesday, 2nd December, the bill had its second reading in the House of Lords. This is the first substantive stage of a bill’s parliamentary passage and the main opportunity to debate the principle of the bill rather than individual clauses. In this case twenty lords and ladies made short speeches arguing for and against its principles.

The debate lasted four hours and ran to 48 pages of A4. I should know, I read it all.

There were some excellent speeches, notably those by Lord Whitty, Lord Maxton, Lord Lucas, and Baroness Miller. There were also some terrible, embarrassingly uninformed speeches.

Lord Birt, who should know better as a former director-general of the BBC, was worried about the ‘lawless, unpoliced, and unregulated place’ we call the internet. He thought the proposed rules on copyright were ‘well-considered and proportionate’ despite allowing the secretary of state to amend the law without proper parliamentary oversight. Government interference should be welcomed, it seems, unless it stepped into his area of interest, journalism, where it should ‘stay at arms length’.

The Bishop of Manchester also had something to say. Predictably, he felt that churches should get ‘compensation’ for the ‘unreasonable costs’ of replacing old, analogue equipment.

Baroness Morris, better known as Estelle Morris, former Labour secretary of state for education, said of the proposed copyright rules the ‘principle was right’ and that she would ‘very much welcome them’. She also made the mistake of saying that ‘file sharing is not acceptable’, forgetting that it is only illegal file sharing that’s unacceptable. There are many legitimate uses for file sharing.

But enough of the chumps. What of the people that knew what they were talking about?

Gratifyingly, they came from all three main parties. Lord Whitty, a former Labour chief whip, made a fantastic speech. We need to educate those ‘millions of consumers, who do not really understand copyright law, who do not know whether what they are doing is legal or illegal’. The proposed law ‘is ultimately not enforceable in the sense it will get rid of illegal downloading … you will only ever scrape the surface of that’.

Lord Whitty made the point that the £200–£400 million the rights holders allege they’re missing out on ‘is a purely notional amount’ and that ‘if you actually enforce this and the downloading finishes, not a penny automatically goes back to the rights holders’. This notional loss is well worth keeping in mind when you think that costs of implementing the measures in the bill is estimated to be as much as £100 million. How much should one industry be expected to spend on another?

Lord Whitty also mentioned that the sanctions Ofcom will be required to produce will not be proportionate to the loss of the rights holders: ‘disproportionate in the sense that not only is the individual who actually committed the breach of copyright likely to be affected but also his or her whole family and in some cases business’.

Lord Razzall of the Liberal Democrats made clear that ‘clause 17, which effectively gives the government power to alter copyright law by statutory instrument, should be rejected’. There must be proper education and the penalties ‘must be subject to the principles of natural justice, so that no unfair measures can be taken against an individual and, more particularly, that each individual must, under the process, be seen to be innocent until proven guilty’.

Lord Lucas, a Tory, said the bill ‘has to be careful to ensure it looks after the proper interests of citizens’. He was very much against ‘powerful, monopolistic industries and giving them power over citizens’. The ‘problems now facing the [recording] industry are, to quite a large extent, of their own creation’ and ‘we ought not to be producing legislation that fossilises the creative industry’. He hoped that the appeals process ‘be good and clearly set out’, that it be ‘compulsory for copyright holders to go through the mechanism we are putting in place’ instead of going to their lawyers to ‘harass people’. Finally, he asked the Conservative party, ‘please can we vote against clause 17?’

Last but not least, Baroness Miller, a Lib Dem peer, said ‘throughout the ages, the old style of creativity has fought tooth and nail against change’. The invention of the photocopier, we were told, would lead to the worldwide collapse of the publishing industry — just as the printing press was supposed to centuries earlier. The bill ‘seeks to make one industry that has seen phenomenal growth, investment, and innovation … pay for the protection of another sector’.

What should be done?

It should be said that all three of the main parties want the bill to become law. There are some very useful sections that no-one has a problem with. But the Liberal Democrats and, to a lesser extent, the Conservatives, want to remove and reword the more controversial clauses.

The main changes we should see are that the bill should support new business models not protect the old, that due process should be guaranteed to the accused, and that private companies should not be allowed to harass individuals.

There is also some worry that the initial obligations code (IOC), the code to be written by Ofcom to set the rules for who can notify people of their impending internet disconnection and how they can do it, is far too vaguely specified. There isn’t even a draft available to allow peers to see what they can expect. I hope as much as possible is done to solve that.

What next?

Now the bill has had its second reading, it goes to a House of Lords committee. This is where peers can propose amendments to the bill. In fact the amendments proposed by Lord Lucas, Lord Razzall, and Lord Clement-Jones have been published today, with others to follow. The committee is due to sit in early January 2010, so let’s hope those peers who know their stuff manage to make their amendments.

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