Archive for March, 2010

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.