A quick recap on a very complex piece of legislation
The act passed last year can be broken into three sections:
1.) Measures to tackle those who download or share infringing content
2.) Measures to block [oversees] websites which facilitate infringement
3.) The rest of the act dealing with a whole range of unrelated issues
None of the measures listed under (1) and (2) above are currently active in law.
There are already 2 separate reviews under way covering the measures I list under (1). A judicial review brought by ISPs BT and Talk Talk, and a review by the Culture, Media and Sport select committee.
In addition, the government yesterday announced a further review by Ofcom into the web blocking (2) - AKA net censorship - provisions of the Digital Economy Act. Whilst yesterday's announced review of these (currently dormant) provisions was welcomed by come campaigners, the government has previously stated it had "no immediate plans" to enable these provisions, so I'm left wondering whether the review by Ofcom could mark the start of the end, or the start of another draconian power-grab for control of the internet.
To enable either of the measures falling into categories (1) and (2) in my list, enabling legislation must pass a vote of both houses of parliament.
Furthermore, to enable measures falling under (1) requires two pieces of legislation - Statutory Instruments (SIs) - are required, that together form what is know as the Initial Obligations Code.
The first SI sets out how the cost of running the measures will be split between Internet Service Providers (ISPs) and copyright holders, and is known as the Initial Obligations Code (Sharing of Costs) Order. The second SI will describe how the measures to punish those who infringe copyright will actually work, including how the appeals process will operate.
Still with me? Left wondering how much valuable parliamentary and departmental time has already been wasted on a behemoth of a law that will probably (hopefully!) never see the light of day; or, if finally enacted, do very little to change attitudes of net users?
The exclusive bit
The passage of the Sharing of Costs Order in parliament has drawn the International Federation of Library Associations and Institutions (IFLA) into the prolonged row between civil rights groups and entertainment industry bodies.
The IFLA represents over 750,000 library and information professionals in more than 150 countries worldwide, including many UK libraries, the British Library and Chartered Institute of Library and Information Professionals (CILIP), so its views should carry significant weight in a battle where those opposing the Act are often dismissed as "freeloaders" by those pushing for stricter controls over the internet.
Stuart Hamilton, senior policy advisor at the IFLA based in the The Hague wrote to the parliamentary committee currently studying the Sharing of Costs Order outlining the IFLAs objections with a list of comments that had previously been sent to the European Commission when it studied this Order before Christmas.
The bulk of the IFLA's concerns relate to the confusion around the definition of libraries and other public bodies providing internet access to borrowers, as these institutions fall between two categories: subscribers of internet services (ie ordinary users) and providers of internet services. I previously explored these issues in my write-up of a session of the All Party Parliamentary Group on the Digital Economy (DE-APPG) at the British Library in November.
Mr Hamilton went on to re-emphasise the "as yet-unknown costs" (in complying with the Digital Economy Act) came "at a time when library budgets are being cut across the United Kingdom and Europe"."As an ISP, a library can be made responsible for the monitoring of their networks for copyright infringement and incur significant financial obligations as a result. As a subscriber, libraries are likely to receive notifications from their ISP to the effect that a copyright owner has made a report against them for alleged copyright infringement. The financial and time costs of complying with or appealing against this type of situation cannot be underestimated, nor can the types of penalty that could be imposed on libraries as result of an infringement by an individual user, such as the imposition of technical measures (such as reductions in quality of internet service, which ultimately affect library users)."
The IFLA also feel that "adequate impact assessment have not been undertaken to assess the true financial implications of the act", after previously highlighting that the Act will bring "likely significant" cost on "all types of ISP"
The submission goes on to explore a couple of significant civil rights issues that were only just touched on in the November DE-APPG session at the British Library:
"the imposition of new restrictions on library networks runs counter to the library’s vital mission of providing freedom of access to information to its users. Not only does the legislation potentially lead to or encourage the adoption of blocking technologies that are valuable for learning and information sharing in an educational context, it also raises fundamental freedom of expression and privacy issues as public bodies inevitably monitor the activities of their users.
The chilling effect of the monitoring of Internet use should not be underestimated, and the electronic recording of library users’ information seeking activities is not consistent with a democratic approach to access to knowledge. Library users should be free to seek information without barriers, and without fear of surveillance."
The IFLA also highlights the potential for creep in European Law, arguing that acts such as the Digital Economy Act in the UK and HADOPI in France have the potential to "to shape the European legislative environment with regards to digital copyright in the future" and that could be to the detriment of library users across Europe "as libraries pick up the financial and ethical burdens of complying with the new laws."