Tuesday 24 November 2009

The Digital Economy Bill - initial copyright reflections

The Digital Economy Bill, delighting in the name HL Bill 1 [2009-10] was given its first reading on Thursday and published on Friday 21 November (no, I don't know how the Lords could read it before it was published either). The key URL for the next few months for those wanting to keep track of the Bill is here and, impressively, you can also keep up with an RSS feed and email updates to which you can subscribe.

No doubt the main heat in the Bill - and the thing that will determine whether it makes it into law before the forthcoming election next May (or thereabouts) - is going to be generated by the provisions of Clauses 4 to 16 which deal with enacting the graduated response (aka "three strikes") provisions in the Digital Britain report, as amended by subsequent Government prevarication. However, while copyright law might underpin these provisions, they operate to amend the Communications Act, not the Copyright, Designs & Patents Act 1988, so this blog is not going to dwell on them (at least, so long as you overlook Jeremy's post from yesterday!).

Instead, we will look at the Bill from a copyright purist's perspective. That means that there are only 4 clauses that are relevant:
  • Clause 17, which is discussed further below
  • Clause 42, dealing with orphan works and other extended licensing systems - this was expected to be included in the Bill, although, if anything, the powers to make life easier for copyright users are broader than expected.
  • Clause 43, increasing the penalties for certain criminal copyright infringements to £50,000 per offence; and
  • Clause 44, extending the public lending right scheme provisions of the CDPA to cover audio books and e-books. Is this the world's first legislative attempt to define an e-book, I wonder? [and in any event, at least we now have legislative authority to resolve, in the affirmative, the contested issue of whether the word e-book should contain a hyphen.] The Government thinks that an e-book is "a work, other than an audio-book [which is also defined], recorded in electronic form and consisting mainly of (or of any combination of) written or spoken words or still pictures." Do 1709's friends agree? Interesting that it is quite close to the Communications Act definition (section 405) of a television programme as "any programme (with or without sounds) which (a) is produced wholly or partly to be seen on television; and (b) consists of moving or still images or of legible text or of a combination of those things." So the main difference between a TV programme and an e-book is whether the images move!

But where is there any debate or discussion about Clause 17 - this is essentially open book for the Secretary of State at BIS (or whatever department is responsible for copyright policy from time to time) to re-write Part I of the CDPA "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 having regard to technological developments that have occurred or are likely to occur."

The safeguards are, essentially, that (i) he/she can't introduce any new criminal provisions (ii) people affected have to be consulted; and (iii) the changes have to be set out in a Statutory Instrument that has to be approved by both Houses of Parliament - but that seems to be an end to any need for primary legislation to change copyright law. Ever. If the change can be said to be about reducing copyright infringement on the internet.

All sorts of interesting questions arise - could the Secretary of State abolish ALL fair dealing rules under this power? The powers are also not only to toughen the law - could the Secretary of State introduce sweeping new fair use rules - this would have the effect of reducing infringment of copyright on the internet, because if these uses are authorised, they are no longer be infringing!

What safeguards apply to make him/her ensure that they change the rules consistent with the UK's international obligations (WTO, Berne and Brussels)? How is the Berne three-step test applied? Is this an appropriate power for a minister to have in a modern democracy?

I can certainly see the advantage of being able to move fast to change the rules to keep up with the internet - and have even worked on some cases to which that principle might apply - but is this the most appropriate way to do that?


Crosbie Fitch said...

Yes, the maximisation of fair use/dealing results in maximal reduction in infringement. In other words, if one would fully restore people's natural right to copy, to cultural exchange, one should abolish the 18th century privilege of copyright.

I must admit I was tickled by a frisson of puissance at the prospect of the Pirate Finder General choosing abolition to easily reduce infringement by at least 70%.

He'll have it within his power, but alas not in his gift.

i said...

I agree with Crosbie when he says "if one would fully restore people's natural right to copy, to cultural exchange, one should abolish the 18th century privilege of copyright."Laws should be related to the times they are applied in. In my country there still are laws from the 1900 and now people find different means to interpret an old law, and they take advantage of this fact.