I attended an interesting talk hosted by Queen Mary Intellectual Property Research Institute (QMIPRI) and the Institute of Computer and Communications Law on the Digital Economy Bill last night.

Speaking were Richard Mollet of British Phonographic Industry (BPI) and Jim Killock of Open Rights Group (ORG), with Graham Smith of Bird & Bird offering an introduction to the debate.

The Digital Economy Bill has just been through the House of Lords (in the UK) where a number of amendments were proposed. It is due to enter the House of Commons for debate with MPs shortly.

I have to admit I am not familiar with the details of the Bill  (a summary is provided at the above link). There are Notification Provisions which concern ISPs matching subscriber details to IP (internet protocol) addresses supplied in the form of Infringement Reports from the rights holders. ISPs may also have to notify rights holders of persistent infringers.  The more controversial measures of “suspension/disconnection” are set out in the Technical Measures section of the Bill. Many articles on the Net refer to a “three strikes” policy – interestingly this does not appear to be in the Bill (please correct me if I am wrong) but will be in the implementation details.

While not trying to excuse my own ignorance, a lack of clear information surrounding the provisions of the Bill may be a cause of some of the debate; Richard Mollet stated that at times it appeared the BPI and ORG were looking at different Bills: this could be explained by each party having a different intepretation of the Bill’s wording. Many of the implementational details of the Bill are designed to be implemented by secondary legislation (i.e. not defined in the wording of the law).The reasoning behind this is that technology moves faster than the law, so the law needs to be flexible enough to adapt. However, it does lead to ambiguity – both parties may be correct in their interpretation depending on how the Bill is implemented. My personal view is that secondary legislation is, unfortunately, one of the only practical ways to keep up with technology changes, but that safeguards have to be encoded in the Bill to prevent abuse. Richard Mollet referred in his presentation to “the aims of the Bill” and “what the Bill is designed to do”; however, he may underestimate the ability of a less benign government to exploit ambiguous legislation for their own ends.

To be fair to both parties, they each had valid points. Condensed:

• BPI: Infringement (i.e. illegal copying of copyright material) is taking place and is harming sales. The industry (and I believe this is not necessarily appreciated by many in the opposite party) has tried hard to combat piracy through multiple “soft” initiatives such as discussions with ISPs. However, infringement (and the losses) are still occurring.
• ORG: The Bill gives too much power to authorities to disconnect households and organisations from the Internet. It is also worried about the effect on “free” or municipal wifi. They also raised valid points that the Bill needed debate and/or revision.

However, both parties also disminished their case through their polemic:

• BPI: At times Richard Mollet carried an air of indignant entitlement: the world is doing something wrong and stealing our material, they should stop and someone should stop them, and not necessarily considering the deeper issues. Psychologically and physically there is a difference between digital goods and real-world goods; the BPI tends to ignore this difference but for any law to be enforceable it needs to match how we see, produce and interact with goods. DRM has not been successful because it restricts people’s expectations of use (I had to pay Apple £100 to get DRM-free copies of my purchased music to play the music on a Linux PC). However, the Apple App Store and DRM-free digital singles have been successful and profitable. The law only be used as a last resort when a change in industry and business cannot work.
• ORG: The argument that the Internet is a fundamental human right for me fell a little flat, a little indulgent and middle-class, like insisting that a Waitrose within 5 miles is a human right. While it is important, equating it with water stretches the argument thinly. Also I think ORG is maybe too commercially naive, money needs to be made from copyrighted content to support the creators and their entourage, hence something needs to be done to reduce illegal copying (or at least monetise it). However, the tortured tale of Napster shows us this is far from easy.

I do sympathise with the BPI a little, comment in the press and on the Internet and “blogosphere” has a distinct anti-commercial tone. This makes necessary balanced debate difficult. The former “comment” often has a hint of student or dinner-table debate, underestimating the compromises and Realpolitik necessary in successful commercial enterprise.

In summary, both parties are needed for successful and balanced legislation and a compromise does seem possible – encoding the three strikes policy in statute, replacing disconnection with fines, supplying safeguards for municipal wifi. However, whether there will be time for debate in parliment is another question. Is a poorly drafted Bill better than no law?

Some links:

Panorama

Guardian News Report (the most recent online news article – choice of paper is not intentional)