The farce of the Digital Economy Bill

Yesterday evening I watched a complete farce in the House of Commons of a Parliament which really didn't need to do anything more to add to its current disrepute.

The second reading of the Digital Economy Bill was on the floor of the House of Commons and was being debated with about ten MPs in the chamber.

This is the Bill which if enacted will change laws relating to copyright and orphan works and all manner of things which will affect individual artists. It's relevant to you if you live in the UK and you should be concerned with the way it is NOT being debated properly.

Regular readers will recall that I covered the passage of the campaign and then subsequent passage of the American Bills in 2007/8 (see end for links to my posts about this). That leiglsation was dealt with in a 'lame duck' session just as this one is being dealt with in the 'washup' session at the end of this Parliament. One can only wonder at the power of the lobbyists which ensured that this was the case.

Last night backbench MPs and some front bench speakers were lining up to condemn the political process which has been adopted for this bill. Never before has a Bill of this significance been brought to the floor of the House without a period in Committee in the Commons and with a provision of only 2 hours to complete its process through Committee and Third Reading today. The process being adopted is usually reserved for administrative bills of exceptionally minor significance.

The complete nonsense is that politicians were arguing that the Bill was so important it had to be passed even though all parties recognised that, as drafted, it had problems and was not what was required. At the same time the leaders of all parties were unwilling to seek consensus that it was so important that it must be dealt with as early as possible in the new Parliament.

There is a deafening silence in all the broadsheets this morning about the Digital Economy Bill - hardly suprising given that an election was called yesterday! (Actually the Guardian woke up after I sent them a tweet! See Digital bill: government forced to drop key clauses)

However Computer World which is rather less absorbed in what politicians are doing in terms of getting reelected has this article which sums up the position as I understand it in terms of what is likely to happen today. Tories to veto key clauses in Digital Economy Bill - but not anti-piracy measures

You can use Twitter to do a search on #debill and take a look at the many thousands of tweets during last night's debate. You can see mine here. There were over 1,900 tweets on this topic between 12 noon and 1pm.

Key Points about the Digital Economy Bill

Before we start I better make a statement in case anybody is unclear as to where my sympathies lie

I'm FOR

• people learning about art and having all the art in publicly funded art galleries and museums easily accessible online (in files which aren't ever going to be used to create income earning products)
  
• fostering creativity and transformational art which involves starting from another piece of artwork - so long as what gets produced is genuinely different and not just trying to be a duplicate. Artists have been doing it forever, you can find the artwork produced as a result in museums and it's not going to stop because of a new law.
  
• making sure artists and other creative people don't get ripped off and do get to make a decent income
  
• enabling artists to exercise their copyright easily and effectively. They don't have the same resources as the major industries and hence we all need to make sure artists avoid having to pay lots of fees and court costs to protect their copyright interests.
  
• laws which make sense to man in the street and which are capable of effective implementation
  

I'm AGAINST

• large corporations (the 'creative industries') lobbying for legislation to protect their income streams rather than updating their business models to get to grips with changes in technology and communication
• museums and art galleries trying to lock up all images of work in their collections behind agencies which collect fees for their use. Fees for print quality photos for books and prints I understand. However I don't understand not allowing photography in museums and galleries and charging fees for low res images for use in college papers and on blogs. People who take photos are the people who show the rest of the world what great treasures exist in museums. Is it any wonder that the museums with the best attendance records are those that allow photography?
• corporate interests which stifle legitimate income streams for creative artists because they won't get a share.
  
• file-sharing done by people trying to make money off creative people without any credit or sharing of that income
  
• any process which isn't properly democratic

My point is there needs to be a balance. That's not easy to achieve and it certainly isn't going to be achieved with a process which has effectively guillotined any effective parliamentary process.

So what are the implications of the Digital Economy Bill? This is how I see it.

• the politicians and this Bill seriously confuse "creative industries" and "creative artists". Make no mistake this Bill is being driven by the creative industries (eg the music business generally and companies like EMI which is currently in danger of going 'bust') which have failed to adapt their business models to a new digital economy. They want the creative artists and the digital economy to conform to the way they want to do business. However there is a need for all legal provision on a matter which covers everything from multi billion dollar companies to the starving artist in the garret to be exceptionally sensitive to their respective relative abilities and funds to challenge breach of copyright.
  
• individual artists are NOT protected by this bill. Its clauses create provisions to create an industry - and associated fee costs - in registering copyrights and challenging infringements of copyright law relating to their work. In the UK copyright is currently a given and can be exercised for free if you can prove ownership. Many of us issue 'takedown' notices without having to have recourse to a registry. Individual artists in this country have no need to register copyright or pay any fee to do so.
• Transformative art will not be permitted by this bill. Apart from giving Damien Hirst a major headache as to what to do next, this would genuinely stifle the creativity in the visual arts field which has been accelerated due to the way the Internet has exhanced visual communication
  
• Individual authors and bloggers are NOT protected by this bill. At the moment you can protect everything you write under copyright law. In future it would appear you'll have to register all blog posts if you want to protect them. Given the frequency with which authors are now sharing content online which often ends up accumulated in books for sale this oculd have a massive knock on effect for just how much gets shared online. I have to keep this blog on a short feed because of the number of sploggers who used to take the full feed and make money off it by inserting it into other blogs and then decorating it with Google Ads. How much is it going to cost to register a blog to protect copyright in future? What's the value of my content?
  
• the Bill does NOT protect any photograph taken after 1950 - see the comments from the Photographers who are all up in arms about it here. The indications this morning (House of Commons to drop Clause 43? (update 11.30am) are that the government will drop Clause 43 after a very spirited and active campaign by the photographers - plus a major poster embrassment (see the end for more details)
  
• there is no provision to make images of works in public ownership accessible to the public. One of my main concerns is that many museums and art galleries make the taking of photographs by visitors impossible and then want to charge for the use of any image produced using a professional photographer (so they can get you to buy their expensive giclee prints). The reality is that education is supported by the use of low res images which are of no commerical use - but try finding these on museum websites where their main motivation is making money rather than education
  
• It makes copying a digital file of a pictorial image a crime while ignoring the fact that photocopying of books and documents for non commercial uses has been happening for years and years (John Redwood highlighted a number of issues relating to 'fair use' and tried to get a definition of 'fair use' which was consistent but was pilloried by a Minister who apparently doesn't understand his own bill! See Democracy day?. It has to be said that i never thought that I'd be holding up John Redwood as a man of sense - but he made several very cogent points in debate)
  
• the blocking of access to the Internet completely ignores the fact that more than one person can have the same ISP address (ie if they live at or near the same address). Thus people who are completely innocent of any wrong-doing would have their access to the internet blocked - and maybe their livelihood irreparably damaged. More to the point unless you are policing all activities by your children and their friends at all hours of the day and night then you could find yourself without any access to the Internet. There are currently in excess of 35,000 signatures on the Don't Disconnect Us petition on the Number10.gov.uk website. Of course no more signatures can be accepted at the moment because an election has been called!
  
• the bill fails to deal satisfactorily with the issue of public computers and wifi access in public places. The level of liability it creates for the ISP owner means that wifi hot spots could disappear over time as those involved in illegal file-sharing all shift to places where their identity becomes hidden as they access wifi.
  
• this is probably going to cost you money. TalkTalk has a campaign which highlights that it's likely that all those having an ISP and using wifi will need to the upgrade security level of their equipment. They estimate the cost to be some £300 million.

To cap it all, after allowing far too little time for the debate of a badly drafted Bill, it also includes a clause which would allow a government with a majority to undo all aspects of the Bill and substitute anything they like. Read why the photographers think Clause 46 has to be stopped too.

The most surprising aspect of the debate for very many people (including me) was that the voice of sanity on the floor of the House was John Redwood, the MP for Wokingham. I've never liked Mr Redwood and I don't agree with some of his policies but yesterday he was complete hero - as was Fiona McTaggart the Labour MP for Watford who also tackled practical issues and stood up for all the microbusinesses around the country

The Digital Economy Bill faces further scrutiny today. Tune in to Democracy Live - it should be interesting!

This is the link to the remaining stages (committee stage, report stage and third reading) in the Commons. It indicates it should start round about 8.15pm tonight

and finally......

If you are in any doubt about the sanity of the arguments for enacting this Bill read the content at the end of these three links. They're not about art - but the issues are the same

• the first is from former artist and best selling author Maggie Stiefvater (she's been in the New York Tomes best seller list for a HUGE number of weeks) - In Which Maggie Climbs on Her Soap Box And Screams - which is all about how once she became well known she was billed $340 for posting a playlist on her website. Just the links. The links which meant people went out and bought lots of the music she listened to while writing the book which has sold thousands of copies
• the second is an article WhoseTube? in the New York Times by an Australian music group OK Go who noticed how their royalty income took a dive as soon as the video (it's the treadmill one which attracted millions of viewers) they made could no longer be embedded from YouTube into the sites of fans because of the restrictions placed by EMI to protect their financial interests rather than the group's copyright. The group now post their video on Vimeo. The reality is that the music industry is dying because musicians are prepared to give away their music for free and then tour and merchandise to make their money. The music lobby better get used to it because no matter what they do in lobbying to support this bill that's the way the musicians are going to continue to behave.
• Finally, The Labour Party who are seeking to introduce this Bill got caught out using a copyrighted photo of David Cameron on one of its Election Campaign Posters without asking permission of the photographer who took it. I think the invoice they might get for its use could be huge!
  

Links:

• Orphan Works and copyright: should you be worried (still)? (March 2007)
  

• Orphan Works - A Lame Duck Countdown - recommended read (4th December 2008)

• my information site - Copyright and Orphan Artworks - Resources for Artists