openDemocracyUK

Digital Economy Bill? Lord, no!

Stephen Taylor
5 March 2010

The Digital Economy Bill now before the Lords is a matter of grave concern. The concern centres on two questions: what rights we should assign to ‘intellectual property’, and how we should protect such rights. Watch out: corporate interests are claiming the natural sympathy you have for artists, and inviting you to Orwellian excesses.

Intellectual property

Start by remembering copyright and patents were devised to ensure artists and inventors get paid for their work. No artist feels violated if his work is copied. He’s delighted: the more people read his novel or hear his song, the better he likes it. He just wants to get paid for his work. If money is being made he wants some of it.

The huge sums paid in the 20th century to some writers and musicians was a side effect of copyright law and broadcast media: a few channels broadcasting to large audiences produced huge audiences for top acts. The wealth of the Rolling Stones, bless ‘em, is a side effect of the distribution system, not a natural right of talent. That distribution system is changing fast with new technology. It is, and should be, an open question whether the new system produces such winner-take-all effects. Do not legislate to protect it.

Copyright protected artists’ rights well while copying was expensive. When copying required record-pressing factories and printing presses, it was simple to administer. ICT has made reproduction effectively free, so copyright is a dead duck. Other ways are being found to pay artists. Notice the revival of touring, with tickets now very pricey. How iTunes sells individual songs at impulse-buy prices. Artists are not waiting for legislators, they are still working.

Copyright defenders argue that copyright protects innovation. This follows from the ‘rational’ model of human behaviour now dicredited by the financial melt-down. Consult your own experience. Musicians and novelists are motivated primarily by money? They’ll become bankers if they don’t see their work protected by copyright? You know it’s not so.

Who is actually manning the copyright ramparts? Companies who want to protect the value of their large catalogues. Well, they must do what they can. In the 20th century new technology allowed them to extract a monopoly rent from their catalogues. In the 21st century they can’t. Don’t come crying to Parliament.

Others claim the protection of copyright, for example, film distributors and software producers. Their cases have different merits. Do not allow them to shelter under the same umbrella as musicians and novelists.

Studios invest eye-watering sums on films, most of which lose money. It is galling to see the occasional winner pirated and the revenues from DVDs snatched away. But globalisation is a sword with two edges. The same conditions that allow our corporations to use unprotected labour in Asia also expose them to sophisticated piracy. Suck it up.

Software producers like myself have the weakest claim. In the first place, copyright conventions specifically exclude mathematical algorithms. Software should be considered in this category: a way to calculate something. There are two dimensions of this that are interesting because they apply in some measure to all issues of ‘intellectual property’.

The first is Kropotkin’s thesis: the accumulated wealth of humankind is almost entirely inherited from our ancestors. Those now living have added only a small fraction. Yet we divide our wealth as if we had done everything in this generation. If the sources of our wealth – roads, technology, power, water, finance – are our common inheritance then, while there is a case for incentives and rewards to keep things lively, there is no justification for leaving anyone sleeping on the streets. We are all legatees, every man jack of us. This goes double for ideas. Newton himself spoke of ‘standing on the shoulders of giants’. Famously, ideas arise when their time has come. We rightly celebrate our Newtons and Einsteins, but they understand very well that they themselves are active nodes in a conversation that spans centuries.

Property consists of the right to deny use. My home is mine inasmuch as society respects my right to deny others the use of it. Similarly my wristwatch and phone. The notion of intellectual property should be regarded with deep suspicion.

Yet it has been promoted and elaborated in recent years. A philosopher friend of mine lectures on the subject. (Do corporations fund such studies?) The argument is that intellectual property rights need clarifying and protecting if the new ‘digital economy’ is to flourish. Legislators are invited to see themselves as partners of the innovators of the Net.

Be even more suspicious of this. The innovators of the Net copy and adapt each others’ ideas relentlessly. This is what innovation actually looks like. The best ideas emerge from the common stew. The game is not to claim and ring fence them but to get them into production fast. You are really being invited to take the side of large corporations against the innovators. Berners-Lee devised the Web in the first place and refuses to claim any ‘intellectual property’ rights in it. Would we have the Web we have today if it had been so protected?

Morally, stand with Kropotkin and Newton. Commercially, stand with Banksy: "Copyright is for losers."

Enforcement

Now look at what legislators are being invited to provide as prevention. More snooping on citizens.

And punishment by administrators. This is a deeply worrying aspect of New Labour statism. The 1689 Bill of Rights reserved punishment to the law courts, putting an end to centuries of punishment by order of the monarch or the Houses of Lords or Commons. When Parliament more recently gave councils powers to police parking offences, citizens objected. Councils may not make us criminals; the 1689 Bill reserves that to the courts. No one was willing to repeal the Bill of Rights, so a fudge was found. Councils now issue Fixed Penalty Notices (FPNs): pay us or we’ll take you to court.

The letter of the Bill of Rights is respected but its intent is subverted. Citizens who previously had to answer only to a court of law are now effectively punished by administrators. Parking penalties are nuisances at £60 a time: enough to provoke a challenge if you think yourself in the right, but too small to defend in court unless you’re really bloody minded. So while cases can go to court, in practice the council decides, and the language of the FPN, with its talk of ‘appeals’ to the council, supports this. You have only to read the letters columns of our local paper to see how uneasy people are about this regime, especially when the work itself is being hired out for commercial profit.

The Digital Economy Bill takes this to new levels. Parking fines are one thing, this bill proposes to cut people’s Net access on an administator’s say so. If you think of filesharing as something teenagers get up to in their bedrooms, then cutting of their access seems appropriate. But this ignores the actual role of the Net now.

In the last decade we have switched from letters and phone calls to email as the main way we communicate. Through my letterbox come only bills, magazines and adverts – and products bought over the Web. Most calls on my landline are telesales, and days pass without my cellphone ringing.

The Net has become as essential to 21st-century life as electricity and sewage. Instead of providing for official snooping, legislators should be entrenching the integrity of Net communications. When communication has integrity, you can trust that it came from its originator, contains what he sent and has been delivered only to its addressees, among whom GCHQ rarely figures. Citizens and commerce have the same needs here. As Lord Hoffman observed, our securocrats are a greater danger to us than any threat they defend against.

It is a stain on our criminal justice system that we retain administrative ‘control orders’ keeping innocent, ie unconvicted people – you remember the presumption of innocence, yes? – under house arrest and restricting their communications. You are old enough to remember South Africa’s infamous ‘banning orders’.

Imagine. You receive a cease-and-desist order about file sharing. You have no idea what triggered it, nor how to prove you haven’t shared files. You receive more notices and then you’re off the Net. Now you’re a banned person. And this scheme is to be run by officials in collaboration with corporations?

Moreover, it is another of those fine New Labour tools for running a police state, just waiting for the plausible tyrants to turn up and grasp them. You can ignore everything that precedes this. This alone is sufficient reason to oppose this dreadful bill. Drag it out back and kill it.

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