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In what I’ve written on the Digital Economy Act I’ve focussed on a few main objections: that the drafting of the legislation was influenced heavily by corporations whose interests are not necessarily the same as those of writers; that it gave draconian new powers without proper scrutiny; that it will not (can not) work; and that, if successful, it will end up making writers worse off.

These are, on the whole, practical objections, but there is a range of contentious issues. In this post, Wayne Myers does a good job of amassing some of the data that challenges the premise of the Act. (There is a link back here in the post, so do try and avoid getting stuck in a Mobius loop of DE Act blog commentary…)

Here’s an open letter from Steve Lawson to the Musicians’ Union. He makes a forceful case about why he thinks his union is on the wrong side of the argument. He is so infuriated by it, he is contemplating leaving his union.

Personally, I think this is an argument we need to have within our unions, to convince them that the interests of their members are not necessarily the same as those of the large corporations who sometimes hire them. I also think there will be huge dividends for a union that catches up with our digital economy: in new members; the opening up of new business models and revenue streams for its existing members; and just, in this instance, being right…

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.

***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 ***

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