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Whatever other differences we might have, the fundamental disagreement between Bernie Corbett and me can be boiled down to one essential point. He thinks it is wise to disconnect people from the Internet if they are suspected of infringing copyright. I think it is stupid.

Bernie characterises those who disagree with him as thinking of disconnection as something that is wrong, a breach of a human right. I, however, think it’s stupid, backwards, foolish, boneheaded, counter-productive, not-thought-through. Here’s why:

The argument runs that, in the 21st century, people are consuming more and more of their media online. Some people consume some media illegally. Therefore we should stop them, and the people with whom they share an Internet connection, being online.

This fails to take into account the fact that a family who has been disconnected because someone has infringed copyright aren’t doing the following. They aren’t downloading TV or songs from iTunes. They aren’t buying books or DVDs from Amazon. They are not listening to songs on Spotify. They aren’t watching ad-supported videos or reading blogs which are supported by GoogleAds. They aren’t bumping up viewing figures through iPlayer, 4OD or ITV.com. They aren’t downloading free samples of the things creators make to advertise what they are making. They aren’t watching movie trailers. They aren’t emailing each other links to exciting and interesting things they have found. They aren’t clicking the ‘donate’ button on my or anyone else’s website. In short, they aren’t consuming media any more.

So creators cannot make money from them any more.

In a world where more and more is consumed (and paid for) online, preventing people consuming (and paying for) things online is foolish, backwards, all of the things I said above…

Internet disconnection works directly against writers, musicians and artists being able to get their works in front of audiences, and paying audiences. In the last five years a number of models have emerged for ‘monetising content’ (ugh!) At present, the residuals and tips and ad revenues make up a small but growing part of many creators’ incomes, and more sophisticated models are being developed.

Reducing the number of people who have access to my work is not the same as working on my behalf, Bernie.

In general the argument seems to be: disconnection will significantly reduce piracy; reduced piracy will lead to significantly greater revenues for media companies; greater revenues for media companies will lead to their commissioning significantly more things. These are all accepted at face value (without evidence) by supporters of the Bill. I don’t think a convincing case has been made that any of the above is true.

On the other hand it is definitely true that reducing the number of people with access to the Internet reduces the size of the market for (some of) the things I make. It certainly impedes them finding my work, or my finding them.

It’s only if you accept all of the contentious industry-wisdom syllogism above that you can think disconnection will be effective, fair, or wise. I don’t. I believe it is profoundly stupid.

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***UPDATED – see bottom ***

Bernie Corbett, General Secretary of the WGGB has taken the time to expand on the arguments I criticised in an earlier post. I’m going to post his response in full below, and thank him for responding at all to a member’s concerns and for such a full response.

I am not going to have Internet access for few days, so shan’t answer any of his points until next week. Here’s Bernie’s post:

Well I shall respond to Nathaniel’s reply (which is 200 words longer than my original piece). A considered argument deserves a considered response.

 

I hope he doesn’t mind me calling him Nathaniel, by the way. Those of us who have been around a bit recognise this repetitious “Mr Corbett this, Mr Corbett that” dodge – it makes Nathaniel sound polite, even respectful, while subliminally he is making me appear pompous and old-fashioned. Don’t be formal! You can call me Bernie.

 

The DEB has been much-debated in Parliament, it just happens that this took place in the House of Lords, which spent long days picking through the bill with some expertise and made numerous improvements. This is not the time for a constitutional debate, suffice it to say that a hereditary element in the Lords is anathema, a largely appointed house is an outrage against democracy, and I support a fully elected chamber. But most observers do not deny the effectiveness of the Lords as a scrutinising and revising chamber, and it played exactly that role in this case. “Tawdry and secretive” it was not.

 

Having said that, I do agree that the bill should have had a full airing in the Commons (and I would have said so but I was trying to save space and get to the point). Perhaps the bill would have been massively amended, and Nathaniel would have approved of it, had it not run into the buffers of the pre-election “wash-up”, but somehow I doubt that and I think this argument has been used just because it is available. We haven’t heard this objection in relation to the Finance Bill, the Flood Bill, the Children, Schools and Families Bill or the other measures that have followed the same procedure.

 

I am not against petitions, and have signed hundreds, but be honest – they are part of the apparatus of protest, not debate. We quote them when we agree and we ignore them when we differ. Fifty thousand people signed a petition to change the Olympic logo. Twenty-five thousand signed a petition for the Pope to pay his own expenses when he visits the UK. Does this prove anything?

 

No amendments were “shoved in at the behest of the BPI”. Anybody who has been following the passage of this bill knows that literally hundreds of amendments were proposed and lobbied for by all kinds of interest groups, and it took a lot of patience and careful argument to get them taken seriously, let alone incorporated.

 

Everybody seems to be against Parliamentary lobbying nowadays – except, that is, when it is their own opinions and interests that are being lobbied for. As a veteran of this sort of thing, I grind my teeth at the huge amounts of money and influence big business can bring to bear compared with those representing workers and the disadvantaged – let alone individual citizens.

 

One voice of big business is the BPI, although as well as the major record labels it does represent lots of small ones as well. Confusingly the initials denote “The British Recorded Music Industry” (it used to be called the British Phonographic Industry) and it is best known for running the Brit Awards. But in this case, when Nathaniel mentions the BPI he is really referring to the “Creative Coalition Campaign”, specially set up for this bill, which along with the BPI also includes the TUC, Unite, Equity, the NUJ and several other unions (including the Writers’ Guild). You may say all of these unions, and other organisations representing creators, were dupes of big business, but if you do you ought to present some evidence. I don’t believe there is any. (For what it is worth, I and the Writers’ Guild supped with the longest of long spoons.)

 

The point about people “accused” of file-sharing, not “convicted”, is a superficially attractive one. But it depends how heinous an offence you think file-sharing is. We are used to automatic penalties for minor infringements – this is the territory of parking tickets, speed cameras, etc. Modern society couldn’t cope with putting all these through the courts. A few people appeal, whether they sense an injustice or are just trying it on – and a surprisingly large proportion of these appeals are successful. But the vast majority of people know it is a fair cop and they pay up. I don’t think file-sharing is a major crime requiring a judge and jury, like murder or armed robbery, and yes I do think an automatic procedure – with safeguards – is appropriate and workable.

 

Nathaniel might argue that the bigger problem is the seriousness of the penalty. I don’t think it is disproportionate. Some people (though not Nathaniel, as far as I know) have gone so far as to say that a speed restriction or suspension of internet access amounts to a denial of a human right. I would see it more as an inconvenience.

 

A human right? How does that work unless it is also a human right to own a laptop and have high-speed access to an ISP? What about the five and a half billion people in the world with no prospect of either? At least in the UK if you get cut off you can always pop down to the local library or internet cafe.

 

Some people have argued that honest, non-infringing citizens could end up carrying the can for the actions of their teenage offspring (not much new there, I’m afraid) or of piggybacking neighbours or wifi tourists. But couldn’t such HNICs tackle such issues on receipt of the first or second warning, if necessary by simple encryption or password measures?

 

I stick to my view that this part of the bill has been talked up in an almost hysterical way, and that this hare has been set running not by well-intentioned civil libertarians, but by copy-left-creative-commons fundamentalists who believe everyone should have access to all digital material without permission and without payment. As the trade union representative of people who earn their living by writing, I would be failing in my duty if I did not attack such crazy notions.

 

Nathaniel, whom I do not accuse of such insanity, has missed my main point, which is that the whole penalty issue is a justified but small component of a much bigger change in behaviour and expectations that is needed not only from the public and consumers, but also from professional writers, performers, etc., and from publishers, producers, distributors and retailers. No Act of Parliament is going to bring that about, but I believe the relentless logic of the digital revolution will. The winners will be those who adapt early.

 

At this point Nathaniel’s arguments begin to slide downhill. He trots out some familiar urban myths and starts attacking the US Digital Millennium Copyright Act, to which the DEB bears little resemblance. The less said about Lawrence Lessig the better, in my view, but it is true there are huge issues around Google/YouTube and the like. The one thing we can’t do is ignore them or wish them away. We have to engage. Trade unions are not utopian institutions – they react to real events and they make deals to maximise the benefits to their members. The Writers’ Guild – a tiny and ill-resourced organisation – has been remarkably successful in this for the past 50 years (just look at the situation across Europe where no such guilds have established themselves). We are not going to stop now, just when a whole new set of challenges and threats has emerged.

 

I have no time for the Royal Mail argument – it is an old favourite but it is a canard. One of the besetting problems of dealing with the digital world is the way people continually try to make analogies with the analogue world, sometimes even the pre-Gutenberg world. It isn’t the same. Nothing is the same. That is the whole point about revolutions. We are all going to have to adjust our thinking and make difficult compromises. Our bookshelves, our TV aerials, our channels and schedules, our repeat fees, our royalties and our copyright laws are all headed for the museum, along with hand looms, steam engines and supersonic airliners. And the Royal Mail, I’m afraid.

 

Equally I don’t buy Nathaniel’s paranoia. There are lots of issues around surveillance and state-owned personal data, and I won’t get into all that today, but I don’t believe we live in a fascist state and I don’t believe we are heading for one. I have known many photographers over many years, and I can’t remember a time when they weren’t harassed and mistreated by the forces of authority. When I was editor of The Journalist, a quarter of a century ago, nearly every issue reported an example. Remember the miners’ strike? Wapping? The fact is, whether it is photographers, demonstrators, black people or whoever, the police simply reach for the legislation they have most recently boned up on. This is not about anti-terrorism measures (which we do actually need). It is about police behaviour and accountability – another subject for another day.

 

At the end of his riposte, Nathaniel gets philosophical – I am not being sarcastic, I think he poses the right question: “Is ownership the only valuable facet of creative work?” It sounds like a rhetorical question, but it shouldn’t be. Nathaniel doesn’t offer an answer, but I shall.

 

In the old world the author was the owner of the work, until forced to transfer ownership to an exploiter, who in return would pay the author a small fraction of the money earned by exploiting the work. In the new world this system is already collapsing. We are nearing the point where authors and creators can realistically publish their own works, if they wish, although there will be many circumstances where they still want someone else to do the production and exploitation for them.

 

But in the new world, as soon as a work is published, ownership becomes meaningless. The digital artefact is owned immediately by everybody and by nobody. The issue is: must all creativity become amateur? If not, by what means can authors and creators receive rewards to enable them to feed, clothe and house themselves and their families? That is the question that creators’ trade unions are uniquely responsible for answering (nobody else will do it). And in the Guild we believe we are finding answers.

 

In my view the jettisoning of Clause 43 from the DEB means it will be harder, and take longer, for answers to be found. Those who are currently jubilant may think differently in a couple of years’ time if we end up with a new copyright act drafted by a Tory government on behalf of global corporations. Don’t be dispirited. Let us work together – in the Writers’ Guild, in all the unions – to ensure that this remains just a bad dream.

 

We didn’t get our revolution in 1926, nor in 1968, but we have got one now and I for one relish it.

***UPDATE – As well as the comment in the section below, I raise another practical issue with Bernie in this post ***

*** Updated (see bottom) ***

Over at the Writers’ Guild website, Bernie Corbett (General Secretary of the WGGB) has written a piece called ‘In Defence of the Digital Economy Bill’). It fundamentally misunderstands both the effects of the legislation and the manner in which it was passed, and is a worrying display of ignorance of the facts and issues that surround the Bill. The Bill is bad, that my union should be so maladroit in its defence is worse.

Mr Corbett begins by calling the Bill ‘much-debated’. This is a coy misdirection. Although the legislation has been much debated in various online forums it has not been afforded full debate in the place it should have been: Parliament. It was rammed through as part of the ‘wash-up’ process at the end of a Parliament despite being hugely controversial.

Tens of thousands of people signed petitions against the legislation which fundamentally alters the way in which the Internet will be allowed to function in this country, and yet it was debated for less than two hours, by fewer than 15 MPs (although more than 200 could be bothered to turn up to vote).

That a representative of my union sees fit to support legislation passed without the usual scrutiny or debate afforded to any legislation, never mind that which directly affects the industry in which I work, I find incredible. The fact that Mr Corbett refuses to recognise that one can be opposed to the tawdry and secretive way in which this legislation was put together, with last-minute amendments being shoved in at the behest of the BPI, is baffling to me.

Mr Corbett says that he ‘makes no apology’ for supporting measures to automatically disconnect people accused of illegal file-sharing. Peopleaccused of file-sharing. Not people convicted of file-sharing, people accused of it. Or, rather, people accused of having their internet connection used for it. So a parent loses their ability to work from home because their teenager illegally downloads a game upstairs. So an old person who Skypes their distant family loses her connection because she didn’t secure her wi-fi connection. As Liberty says:

“What’s more, automatic disconnection is likely to be largely indiscriminate in its application. As mentioned above in relation to model 1, evidence of suspected infringement will not amount to evidence of a specific suspected infringer rather an account holder whose internet subscription may have been used by another to infringe copyright. Deciphering whether or not an account holder or another is the suspected infringer is certainly not possible at the stage at which technical measures would be imposed under this model. The likelihood is therefore that many who have not themselves infringed copyright will be subjected to the automatic sanctions including disconnection.”

It is a crying shame that, in order to appear to robustly support the rights of creators, the WGGB feels the need to support measures which assume guilt rather than innocence, and are fundamentally flawed and unjust in the ways in which they are to be applied.

It is more of a shame that Mr Corbett either does not understand, or pretends not to notice the difference between what the Bill does, and what he says it does: “introducing automatic penalties against people who use the internet to download music, films, books or whatever in breach of copyrights held by creators, publishers, producers, etc.”

It becomes even more absurd when we notice what sorts of people have been accused of copyright infringement (under America’s DMCA) in the past. Larry Lessig’s speech about the concept of fair use has been accused of infringement; people commenting on Ralph Lauren’s airbrushing of modelshave been accused of infringement; videos parents have made of their children dancing have been accused of infringement; Viacom even accuse Youtube of infringing with videos Viacom themselves uploaded to Youtube, according to Google’s submissions in the court case between them.

He says that “it cannot be right” for “internet service providers to have no role in policing the material they transmit” but doesn’t suggest that the Post Office be equally vigilant in policing all of the material they transmit. Are we seriously to accept that if someone is accused of receiving an illegally pirated item through the post they should have the postal service to their house suspended, and that the Royal Mail should be held liable? That seems to be what Mr Corbett thinks should be the position.

Mr Corbett goes on to say, without evidence, that these powers will not be misused. Indeed, he does further: “I believe they will operate only rarely and in the most serious cases.” Phew! Thank goodness. He believes that to be the case. It is not guaranteed by the Bill, which gives sweeping new powers for all sorts of ill-defined problems, but Mr Corbett believes these powers won’t be abused

No one believed anti-terrorism laws would be used by councils to spy on school applicants. Or to stop photographers (you know, members of the creative industries) peacefully going about their business in public. Or tocatch litterbugs. Yes, one would have to be pretty paranoid to believe that the powers we give to our government and police force will be abused…

Some of the rest of what Mr Corbett says about pricing and release windows makes a lot of sense, but he seems compelled to defend a Bill that doesn’t say what he thinks it says, and doesn’t include some of the clauses he’s defending.

As he says:

“You might not know it from many media reports, but there are lots of other sections in the Digital Economy Bill, and some of them have been victims of the horse-trading between parties in the ‘wash-up’ process”

And that is part of the problem people have with the Bill. the fact that it was not submitted to proper scrutiny means that anything that was potentially good has been stripped from it (orphan works, local news services) and it has been anti-democratically filled with authoritarian dogma. What replaced the clause on orphan works? One that could ban (and a government minister refused to rule out that it would ban) sites like Wikileaks, which just this week provided evidence of the murder of a Reuters reporter in Iraq by US forces.

This Bill is a Bill against freedom of speech. In a world where people claimthat bad reviews are libellous, that whistleblowers are infringing copyright in the documents they expose, that music blogging is, by its nature, an infringing activity, there is a clear chilling effect on speech involved in draconian new powers for governments in regulating the Internet.

There is a lot of literature on the effects of DMCA takedowns on free speech, and, as a writer, I value free speech quite highly. I imagine Mr Corbett does, too. It’s sad, however, that he hasn’t given more thought to why writers, the writers he represents, may not entirely embrace a Bill passed in an undemocratic fashion that gives massive new powers to the government, any government, and that is modelled, in part, on similar laws in China.

Mr Corbett doesn’t believe that these powers will be abused. I can only hope that he is right.

He concludes: “During the intense lobbying over the Digital Economy Bill the interests of the Writers’ Guild, and writers in general, have been brilliantly looked after by two influential organisations to which the Guild is affiliated – the Creators’ Rights Alliance and the British Copyright Council.”

The last WGGB mailing had a copy of the Creators’ Rights Alliance Manifesto. It includes such edifying suggestions as: “All schoolchildren should be encouraged in the habit of using the (c) symbol with their work, whether it be an essay or a musical composition.”

I find that more dispiriting than I can say. When confronted with the challenges of managing intellectual property in the 21st century, that’s our answer? To commodify everything, at every level? Is there no place for freedom of thought, and play in expression? Is ownership the only valuable facet of creative work? Really?

Should we also clarify for our toddlers that, technically, being tickled is an assault, but they might not want to press charges every time?

Anyway, I’m drifting off-topic. I disagree with Mr Corbett, and I’m disappointed with the confused tone of a communication from the union of which I’m a member. The Digital Economy Bill is badly thought-through, conceptually confused, and has become law, sweeping law, without going through normal Parliamentary procedures.

Mr Corbett calls the Bill “little understood”. That’s true. One of the people who doesn’t understand the Bill, apparently, is him.

*** UPDATE: Bernie Corbett has sent a full response to this post, which can be found here ***

** UPDATE 2: I wrote a response to some of Bernie’s points here (and others in the comments below his post) ***

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