Wednesday, 9 December 2009

Digital Economy Bill

It used to be the case than blogging was the most prolific of the myriad time thieves I had to contend with (ever since I removed the standard Windows games from every computer to which I have access). Now, newer time thieves leave litle opportunity to keep the blogs up to date. Yesterday, in between picking up useful bits of information from Twitter, I chatted on Skype with Ron Coleman (www.likelihooodofconfusion.com) and simultaneously with Güvenç (http://www.europeanlawyersevents.com/) in Ìstanbul on Facebook. And I did some work. It's busy at present, which is my excuse for missing this topic.

The Digital Economy Bill had its second reading in the House of Lords (where it was introduced) last week, a fact of which I was aware (in particular because I checked what it proposed about orphan works). I see it attracted an extraordinary outburst of criticism, reported here in The Guardian (Google tells me there are 69 other articles, which I suspect is only the tip of the iceberg). The good old Electronic Frontier Foundation has a lot to say about it too - including asking us to write to our MPs. So what is all the fuss about?

Let's go back to orphan works for a moment - the great non-problem, as I believe it to be, of copyright law. The Bill's solution is to give the Secretary of State power to make regulations to deal with it. Nothing unusual there. But the same undemocratic approach is prescribed, in clause 17 of the Bill, for the whole of copyright law. Under the heading "Prevention or reduction of online infringement of copyright" (who can argue with that?) the Bill provides that a new section 302A be inserted in the poor, long-suffering, much hacked-about, Copyright, Designs and Patents Act beginning:

(1) The Secretary of State may by order amend Part 1 or this Part 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 following subsections contain nothing to give the concerned reader any comfort, except that the regulations will have to go through the affirmative resolution procedure. Most secondary legislation is subject to the negative resolution procedure, enabling Members of Parliament to stop it - although my experience, of trying with the aid of a friendly MP to stop the Restrictions on Agreements (Manufacturers and Importers of Motor Cars) Order 1982 (S.I. 1982/1146) is not encouraging. I recall that the draft order contained a manifest error - I forget what it was, something fundamentally wrong with the terminology: perhaps it should have referred to "passenger cars" not "motor cars" and consequently was ultra vires because it went further than the Monopolies and Mergers Commission report on which it was based and caught other vehicles, such as coaches, that weren't intended to be caught. Anyway, nobody seemed bothered, so the negative resolution procedure didn't strike me as very helpful.

I understand that Parliament does not have enough time at its disposal to engage in detailed debate about everything it needs to consider, and that copyright law needs to be kept up to date as technology changes. Empowering the government to make necessary changes has a certain seductive attraction, although so much copyright law comes from the European Union these days that one wonders how much legislative freedom the government has. The affirmative procedure contains safeguards, of course, but I'm surprised to note that Parliament cannot amend a Statutory Instrument and the last time one was annulled was 1969. Does that look like an effective restraint on the powers of the Secretary of State - even without getting personal about the present occupant of that position, the chair of the British Youth Council back in the days when I was active in it, whose CV also includes a stint as a Commissioner from which no doubt he remembers that EC law occupies large parts of this field? No wonder the clivil libertarians as well as the Internet giants - Google, Yahoo, Facebook and eBay - are up in arms about it.

1 comment:

martinbudden said...

I disagree with your view that orphan works are "the great non-problem of copyright law". I believe the inaccessibility of orphan works threatens a great loss of our cultural heritage. This may not be a legal problem, but it is a problem that can only be resolved by a change in law. I've written about this at:

http://martinbudden.wordpress.com/2009/09/09/digital-britain-report-and-orphan-works/

I do agree with your concerns about the Digital Economy Bill - it is not right to solve these problems by undemocratically giving the Secretary of State arbitrary powers.

 

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