Pirate Party UK

Drafts:Digital Economy Bill

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This is a detailed analysis; there is a summary at the end.

This page concerns the Digital Economy Bill. The current text of the Bill can be found here along with some explanatory notes. Below I have attempted to highlight the "interesting" sections. This is by no means a complete list and I recommend reading the bill (and the explanatory notes provided), although some of the later sections can be skipped as they aren't particularly relevant. As always, this is just my opinion and I am not a legal expert (although that may be changing from next year). Oh, and for the record, apparently all the quotes and the entire bill are "Parliamentary copyright House of Lords 2009" and "Applications for reproduction should be made in writing to the Copyright Unit, Her Majesty's Stationery Office...", so make sure you don't download or print off the Bill without permission (for anything other than personal use etc.), or you could have your internet cut off... --Duke 18:38, 22 November 2009 (UTC)

The Bill modifies various previous Acts and as such the Clause numbers in headings refer to the Bill, but other section references refer to the proposed amended or inserted sections of the relevant Acts. Significant bits are in bold.

Summary

  • Clauses 1-3 cover general additions to the duties of OFCOM and have been ignored.
  • Clauses 4-17 are the important parts, dealing with online copyright infringement.
  • Clauses 18-20 concern internet domain names and I will try to comment on that.
  • Clauses 21-39 concern various television and radio matters that I do not think concern us - if you disagree, let me know.
  • Clauses 40-41 concern the video and video game classification system (some interesting points, but not too important)
  • Clauses 42-43 are back to copyright, but are more about licensing, performers' rights and increasing penalties for infringements.
  • Clause 44 is about libraries and is quite interesting. Among other things, it seems to demonstrate the bias towards music and video vs books.
  • Clauses 45 onwards are general blurb.

It is also worth noting what this Bill doesn't include. There is no mention of relaxing copyright restrictions to create some form of "fair use" clause which he offered as consolation in his speech last month. There is no mention of stimulating the digital economy in any way, or of increasing Britain's broadband network. There is no mention of any measures that will help put Britain back in the front (or even middle) of the technologically development countries. No, it is nearly all about punishments and handing out the power to restrict.


Contents

Clause 4 - Obligation to notify subscribers of reported infringements

Most of the details of this clause (and the anti-piracy parts of the Bill) rely on the specifics of an "initial obligations code". Essentially, rather than detailing anything specific about requirements, the Bill seems to put in place a framework by which anti-piracy measures could be forced using this code. This means that, if passed, there are no limits on how severe, excessive or invasive any measures would be.

Assuming the code exists, the basic principle is that under Section 124A, (2) a copyright owner can make a "copyright infringement report" to an ISP, which the ISP must act on (Paragraph (4) ) by notifying the relevant subscriber. The report;

states that there appears to have been an infringement of the owner's copyright
 124A Paragraph (3), (a)

At no point are the requirements for apparent infringement defined. There is no requirement on a suitable level of evidence (for example, enough to take before a judge). Previously we have seen screenshots from P2P clients with lists of IP addresses used as "proof" - something that should never be able to stand up in a court. The report also;

includes evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered
 124A Paragraph (3), (c)

Again, no definition of evidence; with that not specified, all they need is an IP and a time and this is enough to force the ISP to notify the subscriber and possibly take further action (depending on the mysterious "code").

The notification must include;

evidence of the apparent infringement;
 124A (5)(c)

Personally, I like this as at least you get to see the supposed evidence.

information about copyright and its purpose;
 124A (5)(d)

Who writes this? The law does not specify who gets to decide what to include and say on this subject. This could be considered the heart of the entire debate on copyright - and I really don't want the BPI etc. choosing what to say here.

advice about how to obtain lawful access to copyright works;
 124A (5)(e)

This could be quite useful, but who gives the advice? Who chooses what to include? These days many works can be obtained lawfully through P2P networks and from sites such as tPB (while it lives) but somehow I doubt this will be included.

advice about the protection of ... wireless telegraphy;
 124A (5)(f)

The only reason I see for this to be included is so that if another notification is sent, the "unsecured wireless" defence is invalid (not that there is such a thing as a completely secure wireless network - without a suitable Faraday Cage or something). Again, who gives the advice?

anything else that the... code requires
 124 (5)(g)

This will be important later, when the contents of the code are discussed more, but basically it means that anything can potentially be included (such as demands for money). Also, there is no mention of a requirement to include details on how to appeal the allegation. In my opinion (and as I stated in my response to the BIS consultation) this is crucial, particularly if due legal process is going to be ignored up to this point.

Clause 5 - Obligation to provide infringement lists to copyright owners

This section is probably worth a read, but not particularly terrible (it just covers the requirement of ISPs to hand over lists of which "reports" related to which "subscribers" to the copyright owner, however 124B (2)(b) specifies that anything sent (at this stage) "does not enable any subscriber to be identified" - just enough to catch multiply-alleged infrigners.

Clause 6 - Approval of code about the initial obligations

This section lays out the process for getting a code. Essentially, OFCOM has to approve something but don't have to come up with it themselves. In fact, "any person" (124C, (2)(b) ) can submit something - so we could have something exclusively created by the BPI. However, the next subsection specifies that it must be "appropriate for them to approve the code" (124C, (2)(c) ). However, "appropriate" is not defined - although some conditions are laid down under 124C (6).

The consent of the Secretary of State is required for the approval of a code...
 124C (10)

For those who don't know, Lord Mandelson is currently the First Secretary of State (so this is all about him). Basically, any code has to go through him, so if it isn't tough enough for his (or certain interest groups') tastes, it won't go through. As some small consolation;

... the approved code... must be laid by OFCOM before each House of Parliament.
 124C (13)

I'm no expert, but I think this means that Parliament has to ratify the code, although it might mean they just have to be told about it (124C (12) also specifies that any approved code or modification must "be published in such a manner [considered] appropriate for bringing it to the attention of the persons who... are likely to be affected..."). Still, no requirement for any sort of consultation on the code is included here.

Clause 8 - Contents of initial obligations code

[Clause 7 says much the same as 6, but in the case where no code has been put forward, in which case OFCOM must come up with their own, but all the other points are essentially the same]. This lays out requirements for the code. Some good stuff; some bad stuff; some missing (but in my opinion essential) definitions.

... the provisions of the code are objectively justifiable in relation to the matters to which it relates;
... those provisions are proportionate to what they are intended to achieve; and
... they are transparent.
 124E, (1)(g), (i), (j) resp.

The words in bold are likely to be crucial to the code. However, it would seem to be up to OFCOM to decide if these apply to any code. So really it is up to Mandelson to decide whether they are justified and I think we all know where that would end up.

Interestingly, 124E, (2)(d) specifies that there must be a time limit on copyright owners for making reports. This was mentioned in the P2P consultation over the summer and, from what I saw, the music industry were firmly against this - some small concession, perhaps.

124E (4) details the conditions on any body that would administer and enforce the code and resolve any disputes. It requires;
that any such other person is sufficiently independent of internet service providers and copyright owners;
 124E, (4)(b)

I would quite like to see a definition of "sufficiently" in this case.

124E (4)(e) may get some ISPs worried as it requires there be "adequate arrangements... for the costs... to be met by internet service providers and copyright owners." - so the ISPs will likely have to pay for some of this. No wonder TalkTalk is openly resisting.

Clause 9 - Progress Reports

This requires OFCOM to carry out reports every so often on the situation which must include;

an assessment of the current level of subscribers' use of internet access services to infringe copyright;
a description of the steps taken by copyright owners to enable subscribers to obtain lawful access to copyright works;
a description of the steps taken by copyright owners to... change the attitude of, members of the public...
 124F, (4)(a),(b),(c) resp.

Personally, I find this quite interesting; the second implies that there is an awareness that copyright owners should be doing something to enable us to access content lawfully, but then the third line implies that they should also be brainwashing us. All good fun.

Clause 10 - Obligations to limit internet access: assessment and preparation

This is fairly self-explanatory and includes definitions mainly. This is where "disconnection" is mentioned.

A "technical measure" is a measure that-
   (a) limits the speed or other capacity of the service provided to a subscriber;
   (b) prevents a subscriber from using the service to gain access to particular material, or limits such use;
   (c) suspends the service provided to a subscriber; or
   (d) limits the service provided to a subscriber in another way.
 124G, (3)(a)-(d)

This breaks any idea of a fair internet service. The first one is fairly straightforward and already happens. The third is disconnection, the fourth gives them free reign to do whatever they like in case they've missed something, but the second allows the relevant authorities to censor parts of the internet at will. If this Bill is passed, there would be a legal set-up in place that could enable someone to effectively control every internet connection in the country. But this isn't the really bad bit; that is in the next clause.

Clause 11 - Obligations to limit internet access

If you thought Mandelson couldn't get any worse, you were wrong.

The Secretary of State may at any time by order impose a technical obligation on internet service providers if the Secretary of State considers it appropriate in view of ... or (b) any other considerations
 124H, (1)

Just go back and read that again, bearing in mind that a "technical obligation" is an obligation on an ISP to carry out a "technical measure" on a subscriber (124G (2) ). This bill, if passed would give Lord Mandelson, his successors and any other Secretary of State (as appointed by the Prime Minister) complete, unrestricted, unanswerable control over every internet connection in the country. [Ok, so there are some conditions mentioned in the next section, but their strength is untested.]

Wow.

Mandelson is not just trying to make himself a Pirate-Finder General (personally I think that should be Admiral, but anyway) but a Supreme Overlord of the Internet. If you find nothing else to complain about in the Bill, this must be challenged (well, and a similar bit in 307A, but we'll get to that later). This should make any internet user tremble with fear and outrage.

Clause 12 - Code by OFCOM about obligations to limit internet access

As near as I can tell, this might add some limits on Mandelson's power should the Bill pass. Essentially it states that if technical obligations are in force, they must make a code with which to regulate them, complying with the criteria in 124J (124I, (4) ) which are similar to those mentioned above (so justifiable, proportionate and transparent, but also non-discriminatory). However, there is also a paragraph that potentially gets around this restriction as any code must be approved by (yes, you guessed it), the Secretary of State (124I, (6) ), who also gets to include anything (s)he likes in the code, as before (124J, (1)(c) ). Also, either House of Parliament has to power to annul any "statutory instrument" made under this section (124I, (8) ) so there is some relief.

Clause 13 - Contents of code about obligations to limit internet access

More restrictions etc. on any code. This also has the first mention of any sort of appeal process, with reference to a "First-tier Tribunal" (124J, (2)(f), (3)(a)-(b) ). No details about the make-up of this Tribunal are given. I am no legal expert, but this would also seem to imply no direct judicial involvement. It has the power to withdraw or confirm any technical measure (124J, (3)(b)(i)-(ii) ), pass on the appeal to someone else (124J, (3)(b)(iv) ) and award costs. There is also mention of handing out a penalty of up to £250,000 (124J, (4)(a), 124K (2) ). It does mention the possibility of adding a provision "for the taking of a technical measure to be postponed until a subscriber appeal ... has been determined" (124J, (4)(c) ) but this is only a possibility and the Secretary of State can block it.

Oh look, we just lost the notion of "innocent until proven guilty. That was easy.

Clause 15 - Sharing of costs

[Clause 14 appears much the same as earlier bits.] The title sums up the principle behind this section. Like much of the Bill, it doesn't specify how costs must be shared, just what any such provision may include and relate to. Although in this case, OFCOM doesn't even get any say at all. Guess who does (and with no oversight) (124L, (1) ).

Clause 17 - Power to amend copyright provisions

[Clause 16 contains more definitions.] I think this section is what has led to the "Pirate Finder General" references.

The Secretary of State may by order amend [the Copyright, Designs and Patents Act 1988] for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so...
 302A, (1)

Oh dear. Sub-sections (2)-(6) go on to describe some of the possible ways or reasons this could be done and do nothing to limit the power granted. This gives Mandelson (et al.) the power to make laws as he sees fit to combat online copyright material.

Sub-sections (7)-(10) place some restrictions, but again, they may not be particularly strong. 302A, (7) prevents him from messing with criminal offences, 302A, (9) says he has to consult "such persons who [he] thinks likely to be affected..., or who represent any of those persons, as [he] thinks fit." - not a huge restriction, perhaps, but a start. Finally, 302A, (10) states that any such amendment "may not be made unless a draft ... has been laid before and approved by a resolution of each House of Parliament". Personally, I don't know enough about parliamentary procedure to assess the strength of this restriction (and comments would be appreciated), but it strikes me that what we could see happen is a draft is created, approved, then some minor but significant additions made before it becomes law. This is just speculation, though.

Clause 18 - Powers in relation to internet domain registries

As near as I can tell, this part (Clauses 18-20) lay out a procedure whereby the Secretary of State can mess with the internet domain registry or appoint a manager to do so on his behalf. While, in principle, this could be a good thing (the main reason given is to target cybersquatting), it does seem to be a rather dangerous start; this sort of law could cover the power to kick us off pirateparty.org.uk, for example. Personally, I do not know enough about the technicalities of law or the current internet domain system to comment further.

[Clauses 21-40 do not strike me as relevant to the Pirate movement and so will be ignored.]

Clause 40 - Classification of video games etc.

Under the current Video Recordings Act (1984), video games are exempt from the classification system (Video Recordings Act 1984, 2 (1)(c) ) unless they depict various extreme things (sex, "gross violence" etc. - or anything related to crimes; added in 1995) - Video Recordings Act 2(2),(3). In these cases, video games must go through the BBFC classification system but otherwise it is all voluntary (although usually a PEGI rating is included). Personally, I think this system works perfectly well. As in other countries, we have a mostly voluntary system, up to the discretion of store owners and distributors, but in extreme cases, the BBFC needs to get involved. This clause effectively removes the video game exemption entirely, putting them on a similar level to films and so forcing all games (with some exemptions listed below) to go through a full classification system. There is no need for this; we already have a classification system in place. All changing this will do is to put an extra burden on video game producers and distributors. Yes, that will really help stimulate the digital economy. It will also increase the BBFC's workload, unless another department is set up to handle this. This is just another layer of censorship, added under the guise of protecting the children that will have limited positive effects, but many negative ones.

Some games are still exempt from the system (provided that they don't include any of the extreme things listed in VRA 2(2),(3) ) if they are

designed to inform, educate or instruct;
... concerned with sport, religion or music;
 2 (1A)(a),(b) resp.
These strike me as rather arbitrary reasons for exemption, but moving on.

There is also a list of criteria that if a game manages to avoid, it can also be exempt. This includes the usual 'evils' of

  • "violence towards human or animal characters, whether or not the violence looks realistic and whether or not the violence results in obvious harm" (Section 2A, (2)(a) )
  • "criminal activity that are likely... to stimulate or encourage the commission of offences," (Section 2A, (2)(c) )
  • "depictions of activities involving illegal drugs or the misuse of drugs," (Section 2A, (2)(d) )
  • anything that might "stimulate or encourage the use of alcohol or tobacco" (Section 2A, (2)(e) )
  • anything with "a sexual message" (Section 2A, (2)(f) )
  • swearing (Section 2A, (2)(g) )
  • or anything that might "cause offence" on any grounds.(Section 2A, (2)(h) ).

That's really quite a list. So if you avoid all of that (oh, and the designated authority has "confirmed in writing that the video game is suitable for viewing by persons under the age of 12" - Section 2A, (4) ) your game doesn't need to be classified. Unless it concerns religion, music or sport or is educational, in which case it seems that anything is fair game. So it looks like we will get a Germanic level of video game censorship. As an example, the "Lego Star Wars" video game is currently rated 3+ by PEGI, but this would, presumably, fail under Section 2A, (2)(a) or (b) and thus have to be rated. Incidentally, how is "swearing" to be defined?

As with the rest of the Bill, Section 2A (5) adds a condition that enables the Secretary of State to meddle with this at will.

Clause 41 then goes on to define a basis for setting up an authority responsible for establishing a legally binding classification system.

Clause 42 - Extension and regulations of licensing of copyright and performers' rights

Now, this is fun. This clause adds four sections to the CPDA concerning licensing laws.

Section 116A, Licensing of orphan works allows the Secretary of State to

provide for authorising a licensing body or other person to do, or to grant licences to do, acts in relation to an orphan work
 Section 116A (1)

I'm undecided about this. Yes, it would be nice if orphan works could be licensed, rather than the current situation whereby they tend to get ignored due to the danger of civil or criminal prosecutions resulting in using them without permission. On the other hand, do we really want the PRS or a similar organisation (chosen by the Dark Lord) gobbling up the rights to works just because they can't find the owner. Orphan works are defined later to be works for which the copyright holder is not known. However, this isn't the really bad part.

Section 116B, Extended licensing schemes goes further and allows the Secretary of State to authorise

a licensing body to grant copyright licenses... in respect of works in which copyright is not owned by the body or a person on whose behalf the body acts.
 Section 116B (1)

Something else that needs to be read a couple of times before it sinks in. This section allows the Secretary of State to give anyone (s)he wants the right to act as if they own the copyright for (nearly) any work.

Section 116B, (2)(b) makes it clear that this is an opt-out system, so if you find that someone is collecting royalties on your work without your consent, you can tell them to stop doing so. Oh, and if you do ask them to give you the royalties, they can keep "administrative costs" (Section 116A, (3)(a) ). While I can see the logic behind this law (effectively creating a national licensing authority), making it opt-out (and it being able to keep as much money from royalties as it wants) does seem rather extreme.

Section 116D, (1) adds an exception to these powers; this can't apply to Crown or Parliamentary Copyright. This strikes me as rather hypocritical. Effectively, this clause is the government saying "we are going to give away control of everyone's copyright to some third party, except our own copyright, we're keeping that."

Clause 43 - Increase of penalties relating to infringing articles or illicit recordings

This clause does exactly what it says in the title. It increases the maximum fine for criminal offences under the CDPA (effectively commercial copyright infringement; it should be noted that this is not for private copyright infringement) to £50,000 (Clause 43, (2),(3) ) from £5,000 in England and Wales, £10,000 in Scotland. Fairly straightforward. As Andy Robinson said, if copyright infringement is trivial enough to be left in the hands of Mandelson to legislate, why is such a high fine required? According to the explanatory note on this, this is following a recommendation of the Gowers Review which suggested that penalties for online copyright infringement reflected offline copyright infringement. To me, that implied he meant that downloading a file over a P2P network should be treated like copying a CD or cassette from a friend, not shoplifting.

Clause 44 - Public lending right

This is really quite interesting. This clause creates the legal framework for public libraries lending out e-books and audio books in a digital format. Yes, I have some issues with it, but they mostly come down to the definitions. This clause could represent the start of a move towards free, public digital libraries which I think we would all like to see. However, this only includes books, not any other media. This raises the questions of what makes book copyright any less important than other types and why not permit libraries to lend out films and music in digital formats (particularly recordings that are over 50 years old and thus out of copyright).

On to the definitions;

"lent out"-
  (a) means made available... for a limited time,
 Clause 44 (2)(a)

Why is a limited time required when you are copying something? The main reason for having to return books (supposedly) is that if you don't, no one else can take them out. If there was a concern about having items indefinitely, you would not be able to renew books. This limitation seems to only exist to restrict public access to works that should be publicly available.

  (b) does not include communicated by means of electronic transmission to a place other than library premises;
 Clause 44 (2)(b)

This suggests that it is fine for a library to lent out e-books and audio books in a digital format, but only if you go into the library to get them. This strikes me as removing one of the main advantages of having material in a digital format in the first place. Sounds rather silly to me.

"author", in relation to a work recorded as a sound recording, includes a producer or narrator;
 Clause 44 (2)

Not particularly important, but I thought that this was a rather odd definition.

Summary

In summary, there are a few good things in this Bill, but an awful lot of bad. There's also a huge amount of Lord Mandelson saying "I want power! Unlimited power!" This Bill needs to be radically altered if it is going to pass.

  • There is no mention of relaxing copyright law.
  • The control of possible sanctions is effectively given to the Secretary of State alone.
  • The Secretary of State is given the power to amend the law.
  • The Secretary of State gets to decide who pays for any process set up.
  • The Secretary of State is given the power to collect and keep, and authorise collection of royalties without permission.
  • There are several worryingly vague definitions and requirements.
  • There is no requirement to uphold the notion of "innocent until proven guilty" or "due process".

Write to your MP today, or contact the Lords. This must be stopped as soon as possible. --Duke 00:28, 23 November 2009 (UTC)


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