Friday, 3 December 2010

The Digital Economy Act

What is the Digital Economy Act?

The Ultimate Answer to the Ultimate Question of Life, The Universe, and Everything? Or the hyper spatial bypass which will finally destroy the internet (with an unreserved apology to Douglas Adams who found the answer to this question even if based on the wrong calculation)?

As so often in life, the practical reality is much less dramatic.

However, this complex and wide-reaching piece of legislation has huge significance for those whose livelihoods are dependent on music. Essentially, it compels Internet Service Providers to do two things:

• to send letters to their subscribers following a “copyright infringement report” by the copyright owner detailing the apparent infringement , and
• to collect anonymised information on serious repeat infringers

In doing so, the Digital Economy Act has established an important principle, supported by Parliament – that creators play a vital role in the continued evolution of a sustainable digital market and they should be rewarded for their work. The other key principle relates to the role of ISPs whose responsibility has now been spelled out.

On reflection, however, establishing principles was the easy bit.

The finer details (for instance, how the legislation operates, who pays and for what?) were still to be established when the Bill passed into law.

Since April, the communications regulator Ofcom has been working to draft an Initial Code of Obligations that will establish a framework of processes. Meanwhile, the Department for Business, Innovation and Skills was to determine who is paying for it.

This process is still ongoing.

At the time of writing, we know that rights holders, on top of the detection process, are liable to pay 75% of all costs (from the sending of letters right through to any appeals) but Ofcom are still working on the code. When completed, this will be scrutinized by both the UK Parliament and the European Commission before coming into force.

Add to this the uncertainty of a Judicial Review, sought by BT and TalkTalk, and it seems unlikely that any letters will be dispatched to P2P users until the latter half of 2011.

And it doesn’t end there.

Following the sending of the first letter, Ofcom will measure changes in the UK’s digital market for a period of 12 months, evaluating the impact of notifications on levels of infringement, of consumer education campaigns, of the development of new licensed services and of targeted legal actions.

If the Initial Obligations Code does not deliver the intended effect of reducing illegitimate file sharing significantly (70%) the Secretary of State can grant a power to Ofcom to introduce, via secondary legislation, a third obligation on ISPs to impose technical measures on serious infringers (“Second Stage”). Technical measures could include limiting the speed of the service; preventing/ limiting access to particular material; suspending the service provided to a subscriber; or limiting the service in another way.
Points the Secretary of State will consider when assessing the need for such a third obligation include

• Level of infringement/ potential changes
• Activities of right holders to enable legal access to works
• Impact of right holders’ activities to change public attitude
• The extent of legal proceedings by right holders

The earliest point of such a Technical Measures Code could be approved by the Parliament would be June 2012. Without predicting a riot (for instance in view of the judicial review instigated by BT and Talk Talk), it seems unrealistic that such a Code would be operational before end of 2012. An Initial Obligations Code might be operational by end of 2011 but the timetable can change.

The ultimate goal is to substantially grow and diversify the digital economy.

However, as a necessary legislative backdrop it could provide the basis for us to re-connect and excite the public who love our creativity. Ultimately, success will be measured by diversity and viability of new services and the volume of illegitimate users which migrate towards them.

The Digital Economy Act establishes that ISPs are part of the online music chain. In the words of Victor Hugo which are the motto of the French approach to illegitimate p2p filesharing: «Tout ce qui augmente la libert√© augmente la responsabilit√©».

Friday, 30 July 2010

Friends, Romans, countrymen,

The speech I prepared (copying the expression used by W. Shakespeare) but hope not to have to give any time soon.

Friends, Romans, countrymen, lend me your ears
I come to bury Copyright, not to praise it.
The evil that men do lives after them;
The good is oft interred with their bones;
So let it be with Copyright. The noble critic
Hath told you Copyright was out of date:
If it were so, it was a grievous fault,
And grievously hath Copyright answer'd it.
Here, under leave of the critic and the rest—
For the critic is an honourable man;
So are they all, all honourable men—
Come I to speak in Copyright’s funeral.
It was the creator’s friend, faithful providing just reward
But the critic says it was out of date;
And the critic is an honourable man.
Copyright hath brought many ideas home to the digital services
Whose exploits did their general coffers fill;
Did this in Copyright seem out of date?
When that the creator have cried, Copyright hath helped:
Copyright should be made of sterner stuff:
Yet the critic says it was out of date;
And the critic is an honourable man.

You all did see that on the Lupercal
In thrice times hundred years the world presented many a change
Which it did thrice times hundred managed. Was this out of date?
Yet the critic says it was out of date;
And, sure, the critic is an honourable man.
I speak not to disprove what the critic spoke,
But here I am to speak what I do know.
You all did love copyright once, not without cause:
What cause withholds you then, to mourn for copyright?
O judgment! thou art fled to brutish beasts,
And men have lost their reason. Bear with me;
My heart is in the coffin there with copyright,
And I must pause till it come back to me.

But yesterday the word of copyright might
Have stood against the world; now lies it there,
And none so poor to do it reverence.
O masters, if I were disposed to stir
Your hearts and minds to mutiny and rage,
I should do the critic wrong, and the academic wrong,
Who, you all know, are honourable men:
I will not do them wrong; I rather choose
To wrong the dead, to wrong myself and you,
Than I will wrong such honourable men.
But here's a parchment with the seal of copyright;
I found it in its closet, 'tis its will:
Let but the commons hear this testament—
Which, pardon me, I do not mean to read—
And they would go and kiss dead copyright's wounds
And dip their napkins in its sacred blood,
Yea, beg a hair of it for memory,
And, dying, mention it within their wills,
Bequeathing it as a rich legacy
Unto their issue.

Thursday, 13 May 2010

Statute of Anne: Tempora mutantur, but not really

Since 1710, humankind has accomplished many technological and scientific achievements which have improved the quality of life. Such a statement can, of course, be easily made from the “superior” hindsight of 2010. Perhaps, in 1710 people were equally overconfident that “their” achievements marked the “end of history”. After all, what they lacked in digital innovation they made up for in book printing – a revolutionary technology already firmly established in Europe following the invention of Johannes Gensfleisch zur Laden zum Gutenberg.

However, the size of the brain of the self-declared homo sapiens has not increased since the days of the hunter gatherers over 10.000 years ago. Every succeeding generation continues to fight wars, believes it invented sexual intercourse and that the end of the world is nigh. We still haven’t uncovered the elixir of eternal youth. Or what happens after we die.

The only difference between the 3rd Millennium (AC) and the 8th Millennium (BC) man is indeed based on education, innovation and culture - all areas covered by the Statute of Anne and subsequently by modern UK copyright.

Education, innovation and culture have been - and still are - the driving force of human evolution. They are the foremost features in our development. When we speak of “intellectual property” we are dealing with fundamental issues.

Notable is the reference to learning and authors in the Statue of Anne: the "Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.” The underlying philosophy of copyright has been examined comprehensively since its first written manifestation in 1710.

The balance between the rights of the author and the interests of the general public have been subject to legal analysis in the UK - starting with Millar v Taylor and Donaldson v Beckett (in 1769 and 1774 respectively).

Copyright, as a property right based on the skill and labour of the creator (John Locke), and its continental younger sister “author’s right” as established during the Enlightenment period (Germany: Immanuel Kant, Johann Fichte; France: Le Chapelier), are based on the natural right of the individual creator in his/ her creativity as part of their personality/ inner self. In the words of Mr Justice Willis in the judgement of Millar v Taylor (1769): “It is certainly not agreeable to natural justice, that a stranger should reap the beneficial pecuniary produce of another man’s work.”

Copyright and author’s right are equally built upon two fundamental and overarching principles: rewarding and protecting the creator and allowing a mechanism by which those who invest in creativity can be rewarded. It also provides the enabling framework for right holders and intermediaries (producers / commercial users) to offer creative works to consumers in the way they want to consume them – regardless of whether they inhabit the 18th Century or the 21st. Copyright and author’s right are a successful part of the history of mankind providing freedom and liberty to be creative. For over 300 years the system has proved to be remarkably adaptable to technological and scientific changes based on the solid foundation of the two principles of copyright and author’s right.

It is these two principles embodied in copyright/ author’s right which underpin the law of the creative, the law of the individual, the law of the human being. In doing so, copyright/ author’s right replaced a century’s old system of feudal privilege and patronage - something humankind has overcome through education, innovation and culture. Copyright/ author’s right constitutes “progress” - a democratic mechanism which is agnostic as to its subject, its politics and (for better or for worse) its quality.

Copyright/ author’s right represents the individual’s freedom to create. It is the currency of creativity. That evolution is perhaps best illustrated by the introduction of the 1791 French Copyright Act, “The most, sacred, the most legitimate, the most indisputable, and if I can say so, the most personal of all the properties is the work and fruit of thought of the writer.”

Copyright and author’s rights have been and still are the basis of the economic success of the creative industries. In addition to the economic value of the creative industries, our creators, artists and performers define our society and culture.

Whilst the principles and the philosophy of copyright and author’s right have not changed since 1710, the application of copyright and author’s rights must continue to adapt to the changes triggered by science and technology.

Licensing remains the – preferably unseen – and symbiotic mechanism by which creators, right holders, users and consumers can coexist in harmony.

But it is still worth promoting the one thing that distinguishes humankind from beasts – our language, our music, our culture.

Copyright and author’s right sit at the heart of a system that enables creators to derive financial and moral benefit from their work. It is copyright that enables creators, and those who invest in their creative talent, to build value from that creativity.

This was true in 1710. It remains so in 2010.

Wednesday, 27 January 2010


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