The Digital Economy Bill (DEB), now being rushed through the British parliament, embodies an impoverished understanding of the web and its implications for creativity.
The DEB will put in place a system to defend the position of established media groups (the recording giants of the music and film industries) and individuals who have become fabulously wealthy through their control of creative content (think Simon Cowell). It passed the House of Lords on Monday, and is already into its second reading in the Commons. The government is trying to get it far enough along that it becomes part of the legislative “wash up” as this parliament winds up before the election in May. The speed of its passage is preventing proper consideration and debate by the elected chamber, and is serving corporate interests over and above popular concerns.
The focus of the DEB is on those who illegally download digital files, and seeks to punish them in extraordinary ways – after a couple of warnings, internet service providers will be forced to cut the internet connection through which file sharing occurred, regardless of whether the individual, business, library, school or university providing that connection had anything to do with the download. And to guard against future technological changes that might promote file sharing, the DEB cedes extraordinary powers to the Secretary of State (currently Lord Mandelson) to alter copyright law in any manner he/she sees fit. Unsurprisingly, ISPs and Internet companies are strongly opposed.
The best way to get a quick grasp of the issues is to watch this 9 minute video fronted by comedian and activist Mark Thomas (and note, in particular, Billy Bragg’s and Cory Doctorow’s observations):
What the DEB fundamentally misses is the way the web has transformed the creative landscape. The government should have spent more time reading the work of influential Harvard Law Professor Lawrence Lessig, the man behind Creative Commons.
Lessig wants a workable system of copyright, but one that understands “the essence of practical reason in the digital age” is “if you don’t want your stuff stolen, make it easily available” (Remix, p. 46). He asks: “what should we do if we know that the future is one where perfect control over the distribution of ‘copies’ simply will not exist?” His answer – the response to an unwinnable war is not to wage war more vigorously, but to devise a system of copyright that does not criminalise normal behaviour. (Remix, xviii-xix).
The DEB is waging an unwinnable war on behalf of the established producers. Central to the government’s position is that downloading and file sharing threatens the established creative industries. But does it? In Lessig’s book Remix (pp. 302-303n) he cites some studies that demonstrate there is no statistically significant connection between downloading and a drop in commercial sales of films or music. One of these says that Internet piracy accounts for less than a quarter of the drop in music CD sales – meaning that three quarters of the decline comes from commercial reasons for which the established companies are responsible. The DEB defends the collapsing business models of the big players in the film and music industries while endangering the virtues of the web for new forms of creativity.
Proof of the government’s flawed motives is evident when you consider other aspects of the DEB. While keen to defend copyright for major entertainment corporations, the government has been equally willing to strip copyright protection from photographers. The provisions of the bill that deal with “orphan works” delegate to the Secretary of State the power to transfer the property right to copy to someone other than the original owner. While that may have merit when it comes to historical works where owners cannot easily be traced, the wholesale change to copyright it proposes has rightly drawn the ire of photographer’s groups.
The only explanation for the government’s contradictory approach to copyright in the DEB is the power of corporate interests who want to punish file sharers. Even if the DEB passes, it won’t succeed in ending illegal downloads. That doesn’t make such activity right, but, to go back to Lessig’s arguments, why seek to fight an unwinnable war that will result in numerous innocent casualties? Why defend corporate copyright but not the photographer’s? Parliament needs to have the time to ask these questions.