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Thursday, 8 December 2011

Notes and thoughts from Ed Vaizey copyright and web blocking round table, 7th December

Not much in the way of substantial progress resulted from this 90-minute meeting hosted by Ed Vaizey, the Minister for Culture, Communications and Creative Industries yesterday at the Department for Media, Culture and Sport.

But that didn't make the meeting pointless.  In fact I found the meeting extremely useful, as it gave Open Digital and the Open Rights Group a platform to explain the basis of our opposition to sections of the Digital Economy Act and new measures proposed by rights holders to rapidly block websites accused of carrying copyright-infringing content.

The main purpose of the meeting, as the Minister explained, was a chance to discuss concerns and for people on all sides of the debate to meet in person.

Issues of substance discussed were live-tweeted by me during the meeting (tweets collated here).  We learned the MPAA are in the process of obtaining injunctions against other big ISPs to force them to block Newzbin (after an injunction was won against BT and other ISPs refused to implement a voluntary block).

The remaining Statutory Instrument (SI) needed to complete the Digital Economy Act should be published late January.  This order dictates how the process of dispatching warning letters to those accused of copyright infringement and hearing appeals will be run.  After one year in operation, the warnings can be supplemented with a "3-strikes" scheme, bringing penalties - technical measures - for those accused 3 times of copyright infringement.

In fact two SIs need to be approved by Parliament before the measures come in to force.  Whilst one has already cleared the hurdle of notification to the European Commission (a 3-month standstill period to allow comment from other member states), the second will not start this process until end of January.  The delay is so that any findings from an ongoing Judicial Review into the Act can be incorporated (this wasn't said explicitly at the meeting, but I heard this from other reliable sources).

DCMS and Ofcom officials did confirm that the first warning letters are unlikely to arrive on doormats until late spring to summer 2013 - that's three years after Her Majesty signed the Act!

You may remember we were told the Digital Economy Act was needed urgently, and was consequently rushed through parliament.  We have now discovered that legislation passed in haste has not in this case achieved quick results.

Whilst more public scrutiny during the passage of the Bill may have delayed enactment, it perhaps would have resulted in better legislation that would have come into force far quicker, but that's just my view.

I got the feeling that officials from DCMS genuinely wanted to fix a concern raised by Open Rights Group regarding the Digital Economy Act: libraries, educational establishments and anyone offering open public Wi-Fi open themselves up to penalties when the Act comes fully into force.

But Ofcom told the meeting there was nothing that could be done at this stage as changes were needed to primary legislation. "It's a matter for Parliament," said Ofcom's Campbell Cowie.

In the absence of legislative changes, how libraries, universities, cafes and anyone else offering shared internet access will be dealt with would come down to rulings of the Appeals Body set up under the Act.  Not good enough, said Jim Killock of the Open Rights group, "these groups need clarity before the legislation is finalised."

I suggested to the meeting that the BT's block on Newzbin wasn't working well.  Of the tests we performed since the block came into force, only one in 14 attempts (spaced across different days) to access http://www.newzbin.com was blocked.

BT responded that they had complied with the order to the letter, but "a whole host of other stuff is going on" [with the site operators of Newzbin].  BT then said they had recently received from rights holders a new list of IP addresses and URLs to be blocked under the terms of the existing Newzbin injunction.  This new list was "orders of magnitude larger" than the original list and they would comply fully with the terms of the injunction.

Presenting to a packed room mainly representing the interests of copyright owners (see the circulated attendee list) was challenging, and at times our open principles came under attack. 

Ed Vaizey had opened by explaining today's meeting would be live-blogged by the Open Rights Group and Open Digital, but towards the end critics complained the presence of groups with "Open" in their title had an ironic chill on proceedings, with one declaring "Openness has brought closedness."

The charge is that speaking on the record had prevented a full and frank exchange of views. I counter this by arguing openness prevented a heated bun fight and ensured a government minister and officials were presented mainly with opinions and views that withstood close public scrutiny.

I am yet to hear a convincing argument as to why lobbyists pushing corporate agendas at the highest level of government should not themselves be subject to some scrutiny.  Why are so many corporations so afraid to speak openly and on the record?

At one point the BPI suggested they couldn't share statistics proving the effectiveness of HADOPI - France's equivalent of the Digital Economy Act - because of the live blogging.  I'm lost to explain why having a blogger in the room prevented rights holders sharing stats about the commercial situation in France.  Rolled-up industry figures are of commercial advantage to no-one.  Evidence is no better than opinion until it’s been verified by a suitably qualified independent party.

I felt at this stage the excuse given was more a dig at my presence than a genuine unwillingness to share evidence.  My attendance was clearly unwelcome to some, but Ed Vaizey did an excellent job in chairing a fair meeting and making everyone feel welcome.

I've since written (pdf) to the Minister urging him to continue the welcome steps he's taken to improve transparency of, and participation at, this process driven by rights holders. 

Transparency not only leads to better legislation in the long run (or indeed a reduction in bad legislation), it also increases public trust and confidence in the process.   I’m sure that improving transparency will improve public confidence in the process, improving the likelihood that the public and online community will accept resultant legislation or government action.  

And, even when a minority of people still disagree with the results of the process, they won’t be able to blame a closed, undemocratic process for those results.


1 comment:

  1. "But Ofcom told the meeting there was nothing that could be done at this stage as changes were needed to primary legislation. "It's a matter for Parliament," said Ofcom's Campbell Cowie"

    This is incorrect:

    Digital Economy Act

    124C Approval of code about the initial obligations

    124C (12) Section 403 applies to the power of OFCOM to make an order under this section.

    S.403 of the Communications Act

    (7) Every power of OFCOM to which this section applies includes powers –

    (a) to make different provision for different cases (including different provision in respect of different areas);
    (b) to make provision subject to such exemptions and exceptions as OFCOM think fit; and
    (c) to make such incidental, supplemental, consequential and transitional provision as OFCOM think fit.


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