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*** 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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