published: 13 /
In 'Condemned to Rock 'n' Roll', Ben Howarth examines the issues surrounding the Digital Economy Bill which is currently making its way through British Parliament
The Digital Economy Bill is currently making its way through Parliament - the legislative result of last year’s ‘Digital Britain’ review.
The invention of the internet and the establishment of digital broadcasting has left almost all of Britain’s creative industries facing tough questions. Issues in urgent need of attention included democratic accountability for the BBC, sharp declines in ad-revenue for ITV and C4 (and a subsequent lack of meaningful competition in public service broadcasting) and the ‘Digital Divide’ whereby, while much of the country is leaping ahead with high-speed broadband, rural areas remain unable even to get reasonable dial-up services.
But, by far the hoariest of chestnuts addressed by the Bill is the issue of online copyright theft, something the music industry has been begging the Government to get to grips with for the last decade.
Its fair to say that this Bill is just a prod towards a resolution of these issues, and leaves many questions unanswered. This is further complicated by the fact that the timescale is short - the Bill needs to pass by the time Gordon Brown calls a General Election, (an incoming Conservative regime is highly unlikely to prioritise the creative industries over education and welfare reform). And, over the past three weeks, a Conservative hereditary peer by the name of Lord Lucas has been systematically delaying the Bill with a series of time-wasting amendments.
The only advantage to emerge from the tediously slow progress - it will still need to be given line-by-line scrutiny at least four more times before it passes into law - is that we’ve been given a chance to pick apart the thinking of the Government and their Conservative counterparts on music downloading - a subject over which the music industry and their customers appear to share no common ground.
Up until last summer, the Government’s official line had been that they wanted record labels, musicians and internet service providers to get together and agree a voluntary code-of-conduct, which would allow music fans to know precisely where they stood. Clearly, this was never going to work. ISPs know full well that they would sell far fewer high-speed broadband packages if their customers weren’t able to use them to download music and films for free, and were unlikely to put themselves at a great commercial disadvantage unless forced.
So, Peter Mandelson decided to act. His proposals - as floated in the media - appeared incredibly controversial: restrict access to the internet for anyone found to have downloaded copyrighted content illegally. Immediately, the BPI (the music industry’s lobbying arm) applauded the idea, while others asked whether you could really shut people accused of a relatively minor offence off from the communications network without any kind of legal proceeding.
And so, a long simmering argument was boiled up into an angry row. And, as is generally the case in these situations, both sides exaggerated their points wildly.
It is now clear that the Government’s proposals are far more modest. Although eye-catching to the national media, the concept of switching off internet connections is in its earliest stages. Should the Bill pass, the most anyone can expect is that they will receive a warning letter from their ISP, which will emphasise the availability of legal alternatives to peer-to-peer file-sharing. Ofcom (the broadcasting regulator) is then to conduct a public consultation on what to do with persistent offenders.
During the debates in the Lords, the Government have regularly re-emphasised three main points: that its aim is to encourage people not to take copyrighted material for free and that restricting internet access will be a last resort for persistent offenders; that there will be an extensive public consultation to decide what these ‘technical measures’ will be and that anyone subject to them will have access to an appeals tribunal; and, most importantly, that they don’t view this as a criminal matter, and strongly deplore the activities of those record labels and firms of solicitors who have sought to instigate legal proceedings against music fans.
So, anyone reading this while they help themselves to the new Magnetic Fields album on Bittorrent can rest easy. It will be a very long time before any prospect of switching off your internet emerges, and, should you be unlucky enough to be called into court by a record label, you now have a Government condemnation of such actions as a fairly solid defence.
I think a sensible middle ground has, at last, been struck. There are some awkward aspects on which we need more information (such as, what happens if your neighbours access an unrestricted wireless network and download copyrighted material on your account and what level of downloading would actually constitute a persistent offence).
Serial illegal downloading isn’t acceptable, and does genuinely risk spoiling things for those of us who want bands to keep making records we can enjoy (generally an expensive business requiring hard-won expertise) for decades to come. Yet, those of us who spend a considerable part of our income on records and live shows should not be penalised if we occasionally sample music for free.
I will give you an example: last year, I listened to Dinosaur Jr’s latest album, ‘Farm’, at work on Deezer - a legal streaming service, based in France. I then bought tickets (£15) to see the band play at Koko. I then downloaded the album from a peer-to-peer service for free, so that I could listen to it on my MP3 player. I then bought tickets to see lead singer J Mascis’ solo show at the Highbury Garage (another £15). I then received ‘Farm’ and a J Mascis album for Christmas on CD. I then recommended the band to my dad, who bought himself two Dinosaur Jr albums, Technically, I broke the law. But the net-benefit to band, label and promoter was positive.
While recognising that recorded music cannot simply be treated as a free resource, I also think that the wilder declarations of the industry and the BPI are bogus. Their figure for the sum apparently ‘lost’ to the music industry does not account for the cost of live shows, and wrongly assumes each download would be replaced by the sale of a legal alternative.
Music fans are lucky that the Government has not been swayed too far by this wild campaign. But - and this is a big, big But - many decisions still need to be taken. Ofcom’s consultation will essentially be a series of conversations with lobbyists. The music industry will put forward the well-funded BPI, whose public affairs officer and legal team will prepare extensive documentation and a well-polished rhetorical case.
Music fans will need to find a way of organising themselves, or risk the ‘technical measures’ being over-zealous. What is needed is a clear evidence base: how much do people download, how much do they spend and what compromises would they be prepared to accept.
Labour backbencher Tom Watson - currently engaged in a one-man battle in Parliament to stop video games being blamed for youth violence - is likely to be one person who will take up the case of music fans as part of his work in the Culture Select Committee. But he won’t be successful on his own.
A recurring theme in this year’s 'Condemned to Rock and Roll' columns will be the progress of debates on copyright, and I’ll be looking for ways that music fans can engage in the arguments directly. This one, as they say, looks set to run and run…