Another March, another web blocking proposal. The Guardian reported last week that Ed Vaizey MP, one of the ministers in charge of the UK's internet policy, has been hosting discussions between Internet Service Providers and the music and film industries about a 'voluntary code' to facilitate the blocking of websites related to file-sharing. This sounds similar to the currently dormant sections 17 and 18 of the Digital Economy Act, passed shortly before the election last year. In case you were wondering, there have not been any advances in the evidence base that would suggest this is a better idea than it was 12 months ago.
We know little about the discussions beyond the media reports. Let's take those at face value. A voluntary web blocking scheme would be pointless, dangerous and a frustrating distraction. Pointless, as it will not help creators, or prevent people finding content, or disrupt the business models of sites who make money from music or film to which other people own the rights. Dangerous, in allowing an industry such a direct role in deciding what content people can and cannot see and further establishing the infrastructure of censorship.
It is a frustrating distraction because it demonstrates policy makers' continued willingness, in lieu of a forward thinking and positive digital strategy, to do what a small number of rights-holders tell them without adequately examining their justifications. The message to policy makers is simple: Web blocking will not help ensure that creativity and the creative economy can flourish – it will only give you temporary relief from lobbyists.
'Web blocking', in simple terms, means trying to prevent users from accessing certain websites by disrupting, in some way, the connections between web users and a website. Superficially, this seems very useful. Some information is illegal and harmful. With child sexual abuse images within the Internet Watch Foundations' remit, for example, the rationale is clear and uncontroversial – stop people accessing wicked, abhorrent material.
But, unfortunately, web blocking is still carried out at a largely superficial level. The simple calculus associated with web blocking, of being able to identify and then stop a bad thing happening, is attractive but does not hold. It is problematic for two reasons; the first involves practical problems, the second the principles.
There is plenty of evidence, meanwhile, that it causes collateral damage by disrupting legitimate traffic and driving the development of ever-smarter means of avoiding detection (see for example the University of Cambridge security expert Richard Clayton's various writings). It is not easy to identify clearly what content and hosts might require blocking, and it’s even harder to then ensure that this is the only traffic disrupted. It is worth pointing out that Jeremy Hunt recently asked Ofcom to review whether web blocking is workable in practice.
Blocking also leads to important questions about censorship and the right to access information. Who will decide which sites require blocking? On what grounds are decisions being taken? With what democratic and judicial oversight? It is hard to see how discussions involving only ISPs and rights-holders from the music and film industries can appropriately answer these questions. Some of the problems of self-regulation in this context are highlighted by the organisation EDRi in a report released in January.
Extending blocking to copyright infringement will lead to legitimate traffic being disrupted with no benefit to creators and the creative industries. Blocking is simply a measure that gives a veneer of action whilst embedding an infrastructure of censorship. We at the Open Rights Group have written to both the Minister for Culture, Communications and Creative Industries Ed Vaizey MP and the Secretary of State for Culture, Media and Sport Jeremy Hunt MP, to demand that representatives of civil society be part of these discussions to find any new approach to the web blocking options outlined in the Digital Economy Act. We have yet to receive a reply.
This is especially problematic because policy makers have devoted little if any real scrutiny to the evidence of the problem at hand. Those of us interested in the new possibilities the digital age offers - from creativity and freedom of expression to economic and social innovation - have to constantly fight to swat away damaging and ill-considered policy framed as a determined response to the existence of copyright infringement online. Witness the ongoing struggle against the Digital Economy Act (currently under Judicial Review), the secretive negotiations around the international Anti-Counterfeiting Trade Agreement treaty, and the debates about the EU's intellectual property Directive, currently under review the subject of a public consultation. What the 'problem' actually looks like, and what solutions will lead to what outcomes for the digital society, are questions that have been ignored in favour of a narrow set of insufficiently scrutinised evidence.
That evidence, if one was being generous to the studies cited by policy makers, is highly contested. For example, take a look at the Impact Assessment of the Digital Economy Act. It cherry picks certain research with no justification. The study used to define the effect of file-sharing on the music industry is cited simply as 'Jupiter 2007', which does not appear to be available to the public and its methodology is not discussed. Competing research reports, listed in the Assessment on page 69, that suggest a lower impact on revenue, are ignored for no stated reason.
Beyond the Impact Assessment of the Digital Economy Act, and with an eye on the broad impact of new technology on copyright, a report by Christian Handke from Erasmus University for SABIP (now subsumed into the Intellectual Property Office) found that far more research is needed to understand the effects of digitisation on the supply of creative goods. In the US, a report from the US Government Accountability Office argued that it is extremely difficult to quantify the effects of file-sharing. The point is not that digitisation has no effect, or is simply benign. It is that the nature of the link between stronger protection or enforcement and benefits for creators and creative revenues is unclear and under-explored.
It is a fundamental mistake to take at face value the claims by some rights-holders about the effectiveness and value of a stricter copyright enforcement and protection regime.
It makes weighing up coincident interests such as human rights, property rights and civil liberties impossible.
Will the government repeat exactly the same mistakes made in the formulation of the Digital Economy Act? If so, Internet users will continue to suffer from unnecessary enforcement; principles of freedom of expression and privacy will be needlessly breached, and we will continue to fail to set a policy course for an economically and socially flourishing digital society.
The 'Hargreaves' Review of Intellectual Property is currently tasked with reviewing the relationship between intellectual property and growth. As it digests the responses to its call for evidence there is hope of brighter days in which a respect for due process, the fair use of our cultural currency and fundamental rights are a feature of digital policy making. Until then, representatives of civil society need to keep a watchful eye on proceedings, and the pressure on.
Open Rights Group will be fighting every step of the way to oppose these voluntary web blocking schemes. You can help by writing to your MP and letting them know that the Government needs to think again.