The Digital Economy Bill (DEB) was what is generally known in British politics as a “Christmas Tree”. When it’s decided that new legislation is needed on a complex subject that won’t be debated again for a while, every campaign group and special interest rushes to try to include its particular “present” to hang on the tree.  As with the real Christmas, not all presents are entirely welcome.

Christmas tree bills commonly have hundreds of clauses, many of them completely acceptable but some very controversial, and the DEB (which is now the Digital Economy Act since it’s become law, effective on June 12) was no exception. The underlying objectives were pretty reasonable:

• More and more public and private services are largely based on the assumption that users have internet access. To avoid digital exclusion of minorities, the elderly, people in remote areas, etc., we need to ensure that almost anyone who wants access can get it.
• The world economy is increasingly reliant on internet communications and there is a competitive advantage for countries that have a healthy, sensibly-regulated internet sector.
• There are some genuinely difficult issues on the internet (to take two examples: copyright and monitoring for unacceptable content such as child pornography) which it would be helpful to clarify. Even if people aren’t totally happy with a law, it’s probably better than being unsure what the position is.

What was in the DEB?
The main sections were:

• Changes in regulation of TV and radio and use of the electromagnetic spectrum
• Regulations on copyright: how is it infringed, who has the responsibility for spotting infringements, and what happens if you infringe it
• Regulations on domain name registration
• Regulation of content, in particular making the European PEGI model the standard for video game classification
• Switchover to digital TV and radio (all analogue transmission in Britain is being phased out, to free the spectrum for other uses)

Where were the controversies?
Controversy centred on four areas, but in this article I’m going to concentrate on the downloading/copyright issue, which is probably the one of most interest to Swedish readers, whether or not Pirate Party supporters! Briefly, there were also heated debates about video games classification (there was a British-only system run by the TV censorship body and they fought an unsuccessful rearguard action to block PEGI), the speed of abolition of analogue transmission and the way in which photographic copyright is maintained. There was a proposal to create a class of ‘orphan’ photographs for which the copyright owner could not be easily identified: opponents said this would enable commercial bodies to rip off the work of individual photographer, and the clause was dropped before the Bill was finalised.

Downloading and copyright
It is generally agreed in Britain that file-sharing that infringes copyright is a problem:  Britain has large creative industries and it’s not thought realistic to be completely relaxed about large-scale copying and distribution of creative work within hours of its appearance.  Official ‘pirate’ sites attract little sympathy in British political circles. At the same time, nearly everyone knows teenagers who routinely download music or games that they haven’t bought, and nobody wants to see them all locked up in prison. The Bill tried (in my view unsuccessfully) to find a way to get the issue under some sort of control without becoming excessively burdensome.

The basic concept is this:

• ISPs will be responsible for spotting customers who appear to be using the ISP for repeated illegal downloading (shown, for instance, by regular large downloads from sites known to offer pirated material)
• Where there is convincing evidence that the user is doing this, the ISP should warn him.
• If the customer continues in the same way, the ISP may restrict his usage and is required to report it. Court action may follow.
• If the customer ignores repeated letters and emails asking him to stop illegal downloading, his internet access may be temporarily suspended altogether.

Objections

The two main objections are that this won’t work and that it’d be a bad thing if it did. First, it’s not at all clear that it’s practical. An experienced user can switch between ISPs for illegal activity with great rapidity, while keeping an innocuous “regular” email account for uncontroversial mail. Many ISPs are based outside Britain, and the ability of Britain to enforce its regulations on them is limited. The position or internet cafes and the huge variety of locations offering wifi hotspots is also worrying: would a train operator, for instance, be required to check whether any passengers were downloading copyright material?

Second, the punishment seems disproportionate to the crime. If I knowingly obtain an illegal copy of a movie on a DVD and have it posted to me, it might be appropriate to confiscate it or maybe fine me for receiving stolen goods. But it’s not reasonable to forbid me from getting any post on any subject, even the heating bill or a birthday card from my aunt. In the same way, a suspension of internet accounts directly contradicts the overall direction of the DEB to increase internet access. So I was one of the MPs who voted against these clauses, and we did manage to remove one, which had proposed to give the power to block copyright-infringing websites altogether. (I can see a case for this, but the law was loosely-phrased and could have been used for websites of public interest like Wikileaks.)

However, organised opposition to the measure is weak, as it’s primarily come from young people unused to channelling their views through political parties. Before the recent British election, the Liberal Democrats did oppose the legislation, claiming that they would replace it with something (unspecified) better, but this commitment was quietly dropped when they formed a coalition with the Conservatives.

What happens now?

The regulator (Ofcom) is consulting on how to implement the law, and will publish details by the end of the year. They will be required to report quarterly to the government on progress. The obvious question is how they will expect ISPs to spot frequent offenders, and there is software on the market which potentially can be used by ISPs – see for example the discussion here:

http://www.eweekeurope.co.uk/news/ofcom-prepares-draft-of-copyright-infringement-code-for-isps-6398

Action against individuals is likely to require a court order, making it unlikely that the typical teenager with casual usage is going to be the main target. However, people who deal with illegal copies as part of a business can be fined up to £50,000.

Will any of this make a major difference? Directly, probably not. Enforcement will be too difficult to influence the behaviour of individual users and the serious pirates will continue to find ways around the rules. However, it is a shot across the bows of the most aggressive pirates, showing a willingness to tighten regulation in response to the growth of piracy as a serious business rather than freewheeling internet fun.  It’s unlikely that this will be the last legislation on the subject.

Nick Palmer
Nick Palmer was a Labour Member of Parliament from 1997 to 2010. He grew up in Scandinavia, reads Swedish and has spoken on trends in video gaming and the internet at a recent Stockholm conference.