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In his 'Condemned to Rock 'n' Roll' column Ben Howarth looks at former Undertones front man Feargal Sharkey's attempts to try to enforce through the Digital Economy Act 2010, after the political decision was made to repeal sections of it relating to filesharing
Feargal Sharkey, once a punk rocker and now a lobbyist, has been doing his annual tour of the party conferences again this month. In 2010, he organised pub quizzes, but this year he charmed the assembled activists with free curry and ice cold beer at lunchtime.
At Labour and the Conservatives, he was a cheerleader for Britain’s ‘creative industries’, touting a report showing just how many tourists come to the UK mainly because of its pop music, and how much hard cash that brings into the UK.
Sharkey, who rarely fails to mention “a little beat group called the Undertones” when in the company of starry-eyed politicians, is very good at what he does. (One Conservative member wanted an explanation for the blasphemy in Madonna lyrics, and Sharkey’s gentle rebuttal was masterful).
At the Liberal Democrat conference, however, UK Music organised a debate between Sharkey and backbench MP Julian Huppert, who had the day before persuaded his party to back a policy paper that recommended the repeal of the sections of the Digital Economy Act 2010 related to online filesharing.
You may remember the Digital Economy Act, rushed through in the dying days of the Labour Government. It created an obligation on internet service providers to hand over the details of anyone downloading copyrighted content from unregulated sources to “rights holders”, who were then to write polite but firm letters telling them not to steal. Should this not result in a decrease in filesharing, the Act allowed regulators to explore “technical measures” to shut down websites or shut users off from internet access.
The Act provides a classic case study of a public policy failure. Eighteen months after it was signed in to law, not a single clause has been implemented in practical terms by either the Government or the media regulator Ofcom.
The Liberal Democrats voted to repeal the Act and start again (politics being a needlessly complicated art form, this vote does not compel any Liberal Democrats currently serving as Ministers in Government to push for such a policy, but that’s a debate for another day). Feargal Sharkey, having been instrumental in getting the Government to include filesharing in the Act, came to tick them off. Though he still paid for us all to have a curry and a beer, he wanted us to listen to the other side of the debate. Admirably, Dr Julian Huppert was invited back to make his case.
On the face of it, it shouldn’t have been a contest. Feargal Sharkey wrote 'Teenage Kicks'. Julian Huppert is a bearded Cambridge educated scientist who I very much doubt owns any Sonic Youth albums at all. Not even ‘Daydream Nation’.
But, in my view, Huppert’s case is simple and sound, while Sharkey’s is desperate and disingenuous.
Huppert said that the Act was unenforceable, potentially very unfair and posed huge risk to online innovation. Sharkey said that online downloading would prevent bands from making a living, meaning all we’d have left were stadium acts and hobbyist part-timers.
Sharkey cited the example of the Future Of The Left. Sharkey likes this example so much he took out a full-page advert in 'The Guardian in' 2009 to reprint a blog post by the band’s Andy Falkous (once of McClusky). You can still find it on the band’s MySpace account at http://www.myspace.com/futureoftheleft/blog/485944356).
It is a powerful case. No-one could accuse the former singer of McClusky of being motivated solely by money, and his anger against filesharing is entirely understandable.
And, yes, filesharing is a deeply unpleasant activity, and people who steal albums online are both disrespectful and cruel. It is not unreasonable to say that people should pay a small amount to enjoy the creative endeavours of others. Falkous is quite right to complain, quite right to protest and reasonable to hope that something will be done about his problem. He is reasonable to aspire to make a living from music, and not to have his ambition wrecked by forces outside his control.
But, does that justify the Digital Economy Act’s provisions? Does that legitimise the wider case Feargal Sharkey makes? I don’t think so.
What Sharkey does by citing the case of the Future of the Left is a clever trick often employed by lobbyists. Find someone who is articulately angry about a societal trend your organisation also opposes. Use that to justify a remedy that isn’t too burdensome for yourself, and angrily cite the case study against anyone who doesn’t support the remedy you want. Rational assessment of the pros and cons is drowned out.
It is true that trials of warning letters in France have seen reduced levels of illegal filesharing. It is also true to say that the protests from internet service providers are self-motivated, and that they should have some obligation to help ensure rampant illegality doesn’t happen on their platforms. Some of what UK Music propose might form part of a solution, one day.
But the extent of the problem is not well understood. The music industry persists in quoting entirely unrealistic assessments of the economic impact of file-sharing, but won’t acknowledge the broader cultural changes that surely have more impact on the market share. No serious economic impact study has ever been done to assess the impact of file sharing. Put simply, an album downloaded for free does not automatically equate to a lost sale.
So, where the UK Music argument falls down is that the policy that Feargal Sharkey neatly avoids the music industry doing anything itself. The Future of the Left complain that their album got less publicity because it leaked online eight weeks before it was due to be released. That would be solved if labels allowed albums to go on sale as soon as they were ready to be sent out to reviewers and radio stations. (I don't want to be harsh, but even in this case, there is little concrete evidence to show that the album would have been a big hit if it hadn't leaked).
Of course this would require a change in the way labels operated. The music industry has form for determined opposition to innovation and change – just look at its ridiculous adverts against home taping.
Labels don’t want change because (although record sales overall are in decline) they are able to absorb the costs of isolated bad-luck cases like the Future of the Left far more readily than they are willing to take the risk of pressing up an album before they’ve seen whether the music media is interested in it.
So, while Feargal Sharkey quotes the Future of the Left to the Liberal Democrats, he is actually just doing what major labels want most - moaning about the effect of piracy (a good excuse that keeps shareholders off executive backs), while ensuring that no-one debates anything the industry itself might want to do about the problem.