The Digital Economy Act: what's next?

Last Saturday I attended ORGCon, the Open Rights Group's first digital rights conference. The day was packed full with interesting discussions, and I'll aim to blog about a number of relevant issues here over the next couple of weeks. The most pressing topic concerns the campaign to amend the problematic sections of the Digital Economy Act, as Ofcom's current consultation period ends on Friday, and we need to send in as many responses from a digital rights perspective as possible this week.

The question of how digital rights activists should respond to the passing of the Digital Economy Act by the previous government was tackled in a panel discussion including Tom Watson MP, Julian Huppert MP, Eric Joyce MP, John Grogan and Anita Cole (Director of civil liberties foundation Liberty).

Photo from ZDNet UK

Anita Cole from Liberty spoke first, and said that Liberty was not opposed to the legislation of proportionate measures to protect copyright, but that the Human Rights Act (which is the only place the right to free expression is encoded in UK law) grants the state the right to infringe an individual's freedom of speech only in such a way as is necessary and proportionate. The future of Human Rights Act is currently under question, making it doubly important that new legislation does not rely on it as a moderating force. The HRA's provision for freedom to impart ideas and information is particularly relevant to digital rights, as in our digital age this freedom is heavily exercised online.

Various problems have been well documented with the Act in its current form. These include the issue of whole households being disconnected from the internet as a result of the actions of a single individual - made more complicated by the possibility of file sharers piggybacking the internet of others - and the "chilling effect" on web lockers and public wifi providers. In addition, Ms Cole raised the issue of the Act's attempt to sideline civil proceedings by an administrative procedure, which is not subject to public scrutiny or democratic process. This fits a trend in which punitive measures are devolved to secondary legislation, effectively removing them from the public eye.

The democratic status of the Act is already highly questionable due to its hasty, heavily-Whipped vote in the Commons after the dissolution of Parliament, without the time or opportunity for full debate. John Grogan pointed out that the Digital Economy Bill was the first controversial bill in history to be debated in Parliament after the Prime Minister's visit to the Queen to request the end of the parliamentary term.

Under current parliamentary procedure a bill needs to be read three times in each House before being passed. The first reading is a formal presentation of the text; the second offers opportunity for discussion and debate, and the first reading consists of line-by-line scrutiny by a committee, which is usually where bills get heavily amended if they are controversial. The Digital Economy Act was rushed through these second and third stages in wash-up, with only an hour or so spent on the third reading after the vote in the Commons. Once a bill has been passed, the only remaining chance to amend it is via a Super Affirmative Procedure, which involves the Secretary of State passing an order through Parliament which is then subject to scrutiny in both houses. Jeremy Hunt and Vince Cable are therefore key figures in the campaign to amend the most damaging sections of the Act.

Julian Huppert, the newly elected Liberal Democrat MP for Cambridge, had some interesting insights as a new member of Parliament. He authored the emergency resolution submitted to the Lib Dem conference to decide party policy on the Digital Economy Bill. Since his election he has been active in the campaign against the Act, including tabling an early day motion (which didn't get discussed, like the majority of such motions) and setting up an all-party Parliamentary group to discuss the Digital Economy Act and intellectual property policy in general.

All the speakers who expressed an opinion agreed that any campaign challenging the Act should aim for it to be amended, rather than repealed in its entirety, for several reasons:

  • The Act contains a huge number of clauses which have not been discussed or challenged by the campaign, and which should be kept;
  • Lobbying for amendment of the Act is much more likely to succeed than for a wholesale repeal;
  • If the Act was repealed, some clauses would need to be re-introduced as a new bill, which would re-engage lobbyists and other interests on both sides and risk the situation worsening as a result of corporate pressure.

Performing 'laser-surgery' on the unacceptable sections of the Act was therefore seen as the most practical approach.

Tom Watson MP pointed out that the campaign against the Bill did win some victories. Not only was the highly contested clause 18 dropped from the final text, among others, but more broadly, the Open Rights Group organised a campaign against the biggest lobby ever seen. Millions of pounds were spent by the corporate lobby to publicise their interests and persuade MPs to let the Bill through parliament. That the debate became a hot topic in the mainstream media was amazing in the circumstances. Now, at least, the dialogue has been opened, and campaigners have a unique opportunity to make it publically known that copyright is an issue for consumers as well as for rights holders.

Tom Watson urged digital rights activists to think of themselves as the pioneers of a new movement, working towards a more progressive understanding of copyright and open data, in which the campaign around the Digital Economy Act can be used a hook to engage people. The Bill was highly controversial and a lot of people lent their voice to the debate. Although many may now feel that "we lost; it's over", they already have an interest and a certain amount of information, and it is the job of activists to re-engage them and persuade them that the fight is not over yet, and there is still hope for the Act to be amended. Moreover, these issues are relevant to a lot of other legislation currently being discussed (such as ACTA), and raising awareness of these issues will help with those campaigns as well. If we're going to take on the corporate lobbyists, we need huge amounts of public support to have a chance of winning the debate. Tom Watson proposed that each individual who supports the amendment of the Act recruit five friends and spread the word. We need to get this story into the media any way we can, to keep the debate live and raise awareness.

The following strategies were recommended for activists who wish to fight for amendment:

  • Clegg is currently responsible for the Coalition's forthcoming Freedom Bill, and is soliciting suggestions for what it should include on the government's Your Freedom website. This is a useful vehicle for activists to make their feelings heard: all who would see the Act amended should be pro-active in adding their opinions to Your Freedom. The Digital Economy Act is raised in a number of threads, and campaigners are encouraged to add comments to as many of them as possible.
  • Vince Cable is more or less aligned with Liberal Democrat policy on the Act, although it's not his highest concern. Jeremy Hunt is under intense pressure from commercial lobbyists, but he has been careful not to express a personal opinion on the future of the Act (so far). He witnessed the debate in the last Parliament, including Tom Watson's cogent arguments against the Bill, and knows that this is an consumer issue. It is important for digital rights activists to keep the pressure on, and to keep both ministers aware that this is an issue important to many people, and that the priorities of the commercial lobby are not the same as those of many consumers and artists.
  • Contacting your MP should be the first port of call, reminding them to raise the issue in Parliament. Many voters are embittered by their MP's failure to show up for the second debate of the bill, or for voting in favour of it in accordance with the third-line Whip. Nonetheless, the new parliament contains a higher number of digital natives, such as Julian Huppert, and the proportion of 'net-savvy members of parliament can only increase over time. Many MPs are not as sure of their seat as they may seem, and are likely to respond if they receive a number of personal appeals on the same issue. No MP can be an expert on every issue, and so voters who are passionate about an issue have a duty to make themselves available as an expert. Be pro-active in challenging the propaganda from commercial lobbyists, which may be the only information your MP has been presented with. Digital rights are a new conversation for many politicians, but there is some traction in the system already, and we now have the chance to trigger a cross-party dialogue on fair use, digital rights and the new economy of abundance.
  • The panel recommended 'adopting' your local MP; writing to them; attending a surgery in person; talking to them (calmly!) about why the issue is important to you. Start simply, and scale the issue up once they understand how it affects you personally. Work out what information they already have and explain your position in simple terms. And most importantly: don't give up!

The panel discussion was followed up by a workshop on campaigning to amend the Act, which raised a number of interesting points:

  • Record industries have lobbied parliamentarians with a lot of "research" claiming that filesharing compromises the economy. However, contrasting research has been done which demonstrates that the opposite is true. We need to publicise this research as much as possible and raise awareness. (Note: I don't have links to said research to hand, but I will have a look and post what I find in the comments - readers are invited to do the same!)
  • Ofcom are currently soliciting responses on their consultation on sections 3-8, covering the initial notification stage. All activists are strongly encouraged to respond to the consultation, and write to their MP letting them know they have. The Open Rights Group have raised several issues with the code in their posts Ofcom's code does not comply with Digital Economy Act and Ofcom consultation raises data protection problems which may be useful to campaigners.
  • Filesharing has been happening for over 12 years, but the culture of music publishing is still going strong. Artists are still making music and creative industries continue unabated. The music industry needs to evolve new business models in response to the way that the Internet has disintermediated the commercial transaction between consumers and artists. One example of a business model which works with filesharing, rather than despite it, is Corporate Records, a new open source record label founded by artists who were dissatisfied with their corporate record deal and wanted a new way of making their music available to fans.

Regarding the impact of the Act on providers of public wifi, it was revealed that Ofcom make a clear distinction between ISPs, who provide internet access through some kind of commercial contract or agreement, and subscribers, who don't. Anyone providing totally public wifi therefore does not count as an ISP, whereas anyone providing wifi which is accessed through a login screen, an acceptance of terms, or a commercial arrangement (e.g. pubs or coffeeshops making wifi available to their customers) does.

However, Ofcom currently distinguishes between "qualified ISPs", who are covered by the Act, and unqualified ISPs, who aren't. To be treated as a qualified ISP you need 400 000 subscribers; less than that, and responsibility passes up the chain to the ISP of the wifi provider. The 7 biggest ISPs are currently qualified in the UK; the 8th has half that amount, creating a clear cut-off point. However, the time period during which this number is measured is not clear, which may complicate the situation for providers whose subscribers consist of passing trade.

If you are an ISP but not a qualifying ISP (which currently includes all businesses, libraries, and educational institutions providing public wifi) then you are outside the scope of the Act. Copyright infringement by one of your subscribers will result in you getting a nasty note from your upstream ISP - but if you write back explaining that you are outside the system and why, you should be successful.

Problems for unqualified ISPs could arise if the qualifying number of subscribers is lowered in response to Ofcom's consultation. The commercial lobby will be putting pressure on Ofcom to lower the number due a concern that copyright infringers will simply decamp to unqualified ISPs en masse. Anyone concerned about this issues is therefore urged to write to Ofcom in response to the consultation, making your position clear and arguing for the number to be kept as it is so the Act does not backlash on providers of public wifi. Ofcom is a regulatory body whose job it is to assess the impact of legislation like the Digital Economy Act, and they do have power in this area - it seems sensible to work with them on this issue.

If you care about the future of public wifi and the other consequences of the Act in its current form, please do take the time to read and respond to Ofcom's consultation here. You only have until Friday to respond - it's important that we act now and take advantage of the consultation process, which exists to give us the right to respond.

Duke of the Pirate Party is writing a series of articles about the legal aspects of the Digital Economy Act, divided into the same sections as Ofcom's consultations. Whether or not you're intending to read and respond to the consultations, this commentary will be a valuable resource for campaigners:

  1. Introduction and the Initial Obligations Code
  2. Technical Measures to Limit Internet Access
  3. Subscriber Appeals
  4. Web-blocking