Monday, April 05, 2010

DEB: the Final Countdown

Gordon Brown goes to the Palace tomorrow to dissolve Parliament, and the Digital Economy Bill goes to the House of Commons for its second, and almost certainly its last, reading. These are not unconnected. As most readers of this blog will know, the DEB is headed for "wash up", a hasty process for pushing Bills through at the end of a Parliament's lifetime, without any of the normal Commons scrutiny, and thus in theory reserved for legislation whose shape is in the main settled and whose content is uncontroversial.

If there is one thing that can be said about the DEB it is that it is not without controversy and that its many flaws have not been ironed out yet. Almost 20,000 people have now written to MPs expressing their disquiet about the Bill - a remarkable number compared to other prominent campaigns, such as the 6,000 who wrote to save Radio 6 and received endless media attention. (By contrast, most the media except the Guardian have been oddly silent on the DEB) From Twitter, from blogs and from published or reported replies to constituents, it is clear many decent, conscientious constituency MPs then went and looked at the issues, and have also been convinced the DEB's provisions on copyright enforcement are bad, ill drafted and need further work. It is also clear though, sadly, that many of these honest MPs are being pointedly ignored by their own front benches or have received false information. For many have written back to constituents saying the Bill would definitely not pass at wash up due to lack of consensus and controversy. Yet in the end this now looks to be the likeliest outcome tomorrow, with the two main parties obdurately claiming against the evidence that the Bill must go through before the end of this governmet, even despite the fact that the Liberal Democrats have, late but admirably, said they would not support the Bill in its current form at wash up.

This Bill is not fit for passing into law and should not be. As both Labour and Tory front benches have reiterated their commitment to it in principle, there seems absolutely no reason why at least the most controversial parts of the Bill - on "three strikes", disconnection, website blocking (cl 18) and to a lesser extent, orphan works and domain name management, could not be removed from wash up and reconsidered properly after the election - ie in around two months time maximum- not exactly an eternity. Since this is clearly not the current intent, it is hard to avoid the conclusion that the intention is to push through a bad and unpopular law in a rush, against the wishes of the public and of a large number of MPs, while most of both are distracted by the combo of the election itself and the aftermath of the Easter holidays. This is not democracy; it is a farce masquerading as such.

A number of academics, from IT, intellectual property and public law fields, and including myself, have written a final letter conveying our deep concerns about the DEB, both the process of passing it and the substance. It should be published in the Times tomorrow, but if not , I will reproduce it here.

In the meantime I strongly recommend reading the blog post of my former colleague, Scott Wortley, a property law academic at Edinburgh University who also teaches statutory interpretation, and a qualified practicing lawyer. He is not a "copyright activist" nor an IP lecturer; he is someone who is plain and simply worried about the creation of badly drafted laws which will not work and will need repealed or reformed after causing endless difficulty . His post is salutary reading.

My own "open letter" to MPs says simply: please demand proper debate tomorrow, and in particular ask for the holding over of cls 4-18 until after the election. The flaws I identified with cl 18, , in particular, are still all there. Similarly, many of the issues I raised about the whole of cls 4-17 are still outstanding, such as the harmful effects on public free wi fi, on universities and libraries, on small business, on digital inclusion and access to knowledge. These are real problems. This is not about "net libertarianism", or a demand for abolition of copyright. It is simply a desire for laws that work, that benefit artists and the public alike,and that will not make a mockery of the law by introducing unenforceable regulations dictated unilaterally by partisan interests.

Like the new eleventh Dr Who, whom many of us will have enjoyed watching emerging over Easter, the DEB has not yet "finished cooking". There is plenty of time to put it back into the oven of democracy after the election - whoever wins.

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