If you read the blogs and tweets over the past few days you could be forgiven for thinking the internet was going to be shut down and innocent people would be locked up because of the illegal downloading of their teenage children. The Digital Economy Act received Royal Assent on Thursday and became law.

In the words of the antagonists it is ‘farcical’, ‘draconian’, ‘dangerous’ and ‘undemocratic’, it will ‘violate consumers’ and it will turn the UK into ‘China in terms of internet censorship’. These sentiments were expressed in the House of Commons by one MP, surrounded by a band of acolytes. With precious little time for debate, this handful of MPs chose to demonstrate their lack of knowledge of the Bill and the provisions within it for dealing with online piracy. In response, the Minister reminded them that illegal filesharers ‘would receive a letter’.

No one pretends that this is an easy issue. For ten years, since the advent of Napster, people have got used to being able to go on to the Internet and take whatever music they want without paying. Indeed, a generation has grown up with this as the norm. The fact that it has become normal behaviour, though, does not make it right.

I am old enough to remember when drink driving was socially acceptable. That changed through concerted effort some years ago and there are other similar examples more recently. Illegal filesharing is in essence no different. It always has been a civil offence to steal online and, because the only remedy up until now was a court summons and settlement or damages for a four figure sum, dealing with it that way was not appealing to consumers, rightholders or Government. Another way had to be found.

Hence the Digital Economy Act. This was a genuine attempt by Government to deal with a major problem and to avoid the less palatable alternatives. Contrary to twitter wisdom, it was not rushed through. It was the subject of extensive discussion, followed by formal consultation on the draft Digital Britain proposals, further formal consultation on the Digital Britain Report, debate about the draft Bill published in November 2009 and then frenzied lobbying as it went through the Parliamentary processes in January, February and March. It is unfortunate it did not get as much time as is normally allocated to the House of Commons scrutiny stage but the online shouting was heard loud and clear.

It is worth noting that it shares that fate with the Finance Bill, rushed through on an even tighter timetable, but without any online outrage. No one seems to be objecting to that procedure for setting our tax rates for the next year. If the concern about Parliamentary concern was genuine, then the target of that concern should have been the Finance Bill.

So, why did the Digital Economy Act attract so much vitriol online? Thus far, it has been possible to take someone else’s work in the name of human rights, freedom of speech and creativity. Finally, that sham has been rumbled. It isn’t creative to copy someone else’s work. It isn’t freedom of speech to repeat what someone else has said. It isn’t a human right to steal.

In truth, the anger against the Digital Economy Act is that someone has dared to call an end to the free lunch on the Internet.

Ten years ago, at the height of the dotcom boom, the futurists were predicting the demise of copyright. Those futurists can now skip to the final paragraph to see if they were right. Others might take a journey through the ages and wonder if this is anything new.

300 years ago, copyright was a radical concept, breaking through in the dawn of the Enlightenment. Our forefathers broke the old monopoly system and gave authors control of what they wrote. Queen Anne granted “the Author of any Book or Books…the sole Right and Liberty of Printing such Book and Books.” For the first time, authors had the essential bargaining chip, ownership of their work, when negotiating with the booksellers. They could trade ownership of their work in return for royalties, advances or other benefits.

It is interesting to speculate as to what predictions were made back in 1710…

• Read the full article at www.ppluk.com/1710

How many other bills have had such scrutiny in such a short space of time? Over 600 amendments were tabled against the 50 clauses of the Digital Economy Bill. And yet, its antagonists have claimed that it is being rushed through with no debate.

With the Bill over half way through its Parliamentary journey, now is a good time to reflect. 

The story so far. The demand for high speed broadband was identified in a BSG report, Pipe Dreams, in 2007. They identified numerous applications, many video-based, which would spawn a new raft of commercial and public services. Government responded with the appointment of Stephen Carter as Broadband Minister and the Digital Britain report. He used his extensive knowledge of the business as a former regulator to delve into all the issues around high speed broadband including, not surprisingly, online piracy.

Digital Britain was the launchpad for the Digital Economy Bill, announced in the Queen’s Speech in November 2009. Timing was tight for the Bill to complete all three Readings in both Houses because of the imminent General Election. The Bill started in the House of Lords and initially two days were set aside for debate in the Committee stage. That expanded to three, then four and finally seven days of debate as more and more peers became interested in the topic and wanted to explore the nuances of the legislation. At one point there was even a one hour debate on the meaning of one word. In a twist of irony, that one word was ‘efficiency’.

There were amendments tabled on behalf of open rights campaigners, ISPs and rightholders and there was no obvious pattern as to which peer promoted which interests. Labour, Conservative, Lib Dem and cross-bench peers all chipped in, challenging each other and sometimes even switching arguments between amendments. After further changes were adopted at Report stage and Third Reading it seemed as if every possible consequence of the Bill had been explored.

So what was all the fuss about? Online piracy. Rightholders wanted an effective mechanism for dealing with online piracy. Existing legislation, with court sanctions against individuals were unworkable and unpopular and the incentives of legal services themselves were insufficient. The open rights contingent were concerned about the loss of free speech if people had their internet accounts temporarily suspended, although in truth their real concern is probably to retain the free world the internet created at the start. They even organised a demo with blank placards and gagging masking tape to illustrate their point. The ISPs played the human rights card, claiming they were being given a policing role which would invade the privacy of their customers. On closer scrutiny, they were already monitoring and controlling the data flowing through their networks. Their primary aim was in fact to avoid bearing any of the cost of reducing illegal filesharing. In the middle sits the Government who had decided that online piracy was best tackled by a cooperative approach between ISPs and rightholders and then had the unenviable task of allocating responsibility between them.

The result is an industry code, supervised by Ofcom, whereby rightholders gather the evidence of filesharing, ISPs send a notification of misuse to the account-holder and repeat offenders risk having their connection temporarily suspended. Non-p2p piracy, such as websites, cyberlockers and blogs offering access to infringing content are to be tackled by tighter injunctive measures against anyone operating or hosting those sites.

Having completed its passage in the Lords, the Bill is now working its way through three Readings in the Commons. The First Reading, a formality lasting just a few seconds, took place on 16 March and the Second Reading is due on 6 April. Because of the election, there will not be time for the same level of scrutiny in the Commons as there has been in the Lords. We will have to leave to speculation what the MPs could have added to the 600 amendments considered by peers. Instead, the Bill is likely to join all the other outstanding legislation in the ‘wash-up’, the final stage in a Parliament when any legislation that has reached Second Reading can be passed, provided there is broad agreement within the House.

Most observers expect the Bill to go through, with perhaps some final tweaks to deal with any outstanding political concerns. Then we can all get on with our lives, or rather, the battle will recommence on the Regulations implementing the measures in the Bill.

The latest episode in copyright term ended with a cliffhanger last April.

The Commission had proposed a draft Directive, various committees had discussed and amended it and the European Parliament had approved it with a large majority.

By rights, you might expect that performers and record companies would by now be enjoying a longer copyright, more in line with composers, songwriters, authors and graphic designers. Our back catalogue companies would be back in business and older performers would rejoice again knowing that a royalty would be on its way when they hear their tracks on the radio.

But that is to ignore the tri-partite nature of the European institutions. To pass into law, any Directive has to be proposed by the Commission and adopted by both the European Parliament and the Council of Member States. And that is where the proposal was left in the balance. After the vote in Parliament, the Czech Presidency failed to put the proposal on the Council agenda, leaving it in a temporary limbo.

Since last April, plus ça change, plus c’est la même chose in Europe.

We European citizens have voted in a new Parliament of MEPs. The new Commission, under President Barroso is due to be voted in February. And the Spanish have taken on the Presidency of the Council of Member States, in tandem with the brand new President of the EU, Monsieur Rompuy, whose name has provided so much amusement to the British tabloid press. Out of this kaleidoscope of names and plethora of presidents, it is the Spanish Presidency which holds the trump card for copyright term. As President of the Council, they set the agenda and run the Council meetings so all eyes are on the Spanish to get the ball rolling once more.

Behind them is active support from many European countries keen to see their recording heritage kept alive and their older performers rewarded for their efforts. The proposal voted by the Parliament would extend copyright on recordings to 70 years from the date of release. Whilst falling short of the 95 years granted in the USA, a closer parallel with the life plus 70 years enjoyed by authors, it nevertheless provides a welcome boost to a catalogue of recordings from the 1960s onwards.

The extension would apply to both record companies and performers but the legislators were keen that the performers in particular would benefit from the proposal. They therefore included a session fund, giving session musicians additional revenues from sales, a use-it-or-lose-it clause, so musicians could self-release an album if the record company deleted it, and a clean slate wiping out any remaining negative recoupment balance. These provisions have received broad support from the industry, with the UK trade bodies agreeing an alternative split of PPL revenues to improve the accounting and distribution to older session musicians.

There is also broad political support. Our own UK Government has become an advocate, urging their colleagues in the Spanish Presidency to get the proposal through.

So where is the opposition? It is a question I am often asked. Surely, this proposal has been through the legislative machinery and emerged as something that sounds eminently sensible? But this has long since gone beyond the merits of musicians and their livelihoods. It has become a political football, traded in the corridors of power, where the walls have ears but the translation service only works intermittently.

-Dominic McGonigal

WIPO Headquarters in Geneva

Past the building site, through the corridor of hoardings with the name of the organisation in English, French, Arabic and Japanese, then into the foyer under a Latin inscription extolling the virtues of human art and invention. There was no doubting this was an international organisation and no doubting its purpose, furthering creation and innovation. Even the curved glass front of the 15-storey office building had the mark of ambition, reflecting blue sky or deep ocean. This was the headquarters of WIPO, the World Intellectual Property Organisation and the occasion, the ratification of two international treaties by the EU.

The ceremony itself was rather low key, belying the significance of the event. 27 EU ambassadors were lined up in front of their flags, in a space slightly too small for comfort. One by one, they shuffled forward to hand over an A4 folder to Francis Gurry, the Director General of WIPO. Inside the folders were the ratification documents, officially bringing the EU into the so-called internet treaties.

With remarkable foresight, the WCT (WIPO Copyright Treaty) and WPPT (WIPO Performances and Phonograms Treaty) were agreed in 1996, before many people had even heard of the internet and well ahead of the havoc wreaked by Napster and its successors. The addition of the 27 EU territories brings the number of countries signed up to the treaties to 88 and 86 respectively. In a rare demonstration of international harmony, these treaties give authors, performers and producers basic rights in the works on the internet. As well as the more familiar rights over copying, distribution and communication, the key online right of making available was added. Almost throughout the world, creators and those who invest in them can expect remuneration. The principles are laudable. The reality we know is very different and only now are governments beginning to talk about measures that might make the shift from online piracy to legal usage.

So why the building site at the WIPO entrance? It is a new larger office for the organisation reflecting perhaps the growing importance of IP throughout the world, for our economies, our societies and our culture. Certainly the agenda is expanding. There is talk of an audio-visual treaty, a broadcast treaty and a treaty for visually-impaired persons. But a glance at the negotiations between the assembled nations in the Standing Committee on Copyright and Related Rights shows that progress will be at best slow. It has taken thirteen years for the last two treaties to be ratified on a worldwide basis. How long will it take for agreement on the next treaties? And the big one, turning the making available right from principle to payment, is not even on the agenda.

What do Iran, Iraq, North Korea, China and the USA have in common? None of them give performers and record companies a radio right.

In the US, radio stations have built up a $16bn industry without paying a cent for the sound recordings that make up the bulk of their programming. All that could change as the Senate took a step closer to bringing in new legislation. The Senate Judiciary Committee has passed the draft Performance Rights Bill with a healthy majority. The House Judiciary also approved a similar Bill some weeks ago. The next stage is voting on the floor of both Houses on the Hill.

And this is where it gets interesting.

Up until now, the radio lobby have fiercely resisted any attempt at making them pay anything at all. Most of their arguments to date have centred around calling the licence revenue a tax, although they have held back from saying the money should therefore go to the Obama administration rather than to the performers and record companies. They have also claimed that the Bill is racist, but it is hard to see how. My favourite argument though was one radio exec claiming he was not worried as he would simply play unsigned artists. He did not reveal how long he would continue with this policy.

Now, the Judiciary Chairmen behind the Bill have urged the radio industry to smell the coffee, sit down and negotiate. There is still time, they say, to accommodate their concerns but the time for working out a deal with the music industry is now. The radio industry response has been to gather signatures on a resolution opposing the Bill. Even if the parties do sit down together, don’t expect sweet music.

What is music really worth? Sometimes it’s free. Sometimes you pay a few pence. Sometimes you pay a few pounds. Or you might even splash out more for a great musical experience.

It’s a question that has puzzled experts for years. Economists, forensic accountants, business analysts and IP consultants spend hours poring over the figures. They analyse every 79p that’s spent, every subscription and they even look at the purchasing habits of consumers when music is providing a conducive environment for spending.

The answer is to look at the market. The market of artists, record companies, retailers, online services, radio stations and nightclubs has come up with almost every conceivable way of consuming music and a myriad of business models to support that. Some music is given away free. Some is bought. Some is part of a service, maybe with other goodies thrown in.

But the market isn’t working. The help yourself mentality of the freeloaders is holding back that market from delivering the true worth of an artist’s music.

Unlike the MySpace page, it is not the artists who are giving away their material. It is others who seem to think they have a right to take something just because they can. The online environment is still more like the Wild West than the High Street.

And it is not just artists that are affected. It is now undermining the creators and investors in film, TV, books, images and the wider creative economy. The Government has put forward proposals, supported by the opposition parties, which aim to deal with this. Do we want a society which condones the wholesale theft of creators’ work or should we back those trying to make the internet a better place?