The Closing of the Net  "original and valuable"  Times Higher Education

The most draconian law on copyright since the time of Henry VIII. Mandates infrastructure for wide-scale censorship. Removes Parliamentary scrutiny.  

In other words, it is more than  3-strikes.

 

The Digital Economy Bill, which gets its second reading in the House of Lords today,  is the most draconian law to regulate access to information and cultural works  since the introduction of the printing press in the 15th century. It threatens to re-introduce a regime of censorship not seen since the time when England was ruled by Kings and Queens. The only difference is that then it was religious censorship, now it is commercial.

 

ISP sources say it gives the UK government

powers to effectively re-design the entire technical infrastructure of the communications networks and specifically of the Internet. Moreover, such actions could be taken without the scrutiny of Parliament, circumventing the democratic process.

 

Over one third of the Bill relates to copyright enforcement on the Internet. Taking account of other Internet provisions, then more than one half of the bill relates to restricting the Internet. Further provisions relate to copyright matters that properly belong in copyright law and not here. That leaves a small number of clauses to address the stated objectives which are (according to the Queens Speech of 19 November) " to ensure the communications infrastructure is fit for the digital age,  supports future economic growth, delivers competitive communications and enhances public service broadcasting. "

 

The so-called Henry VIII* clause (Clause 17) gives the Secretary of State powers to re-write virtually the entire Copyright, Designs and Patents Act, using a Statutory Instrument, which means it by-passes Parliament. Clause 11 gives the Secretary of State the power to order ‘technical  measures' to cut off users Internet access for unspecified periods, or to throttle their bandwidth. The way the text is currently written, a ‘technical measure' could also be to  block URLs or access to services and applications, at an individual or generic level (limits the service provided to a subscriber in another way) .  The current Secretary of State who would attain these powers is Lord Peter Mandelson.

 

The Bill  incorporates 3-strikes measure against Internet users who download copyrighted material.  Users will receive warnings from their ISP by email or post. The ‘technical measures' will be third strike. This measure is not limited to peer-to-peer users, and could be used against any user, including businesses.

 

Under Clause 6, it would be theoretically possible for the rights-holders to draw up the Code of Practice which will spell out the way that the ISPs are to work with them, and for Ofcom to approve it without Parliament being able to scrutinise or amend  it.

 

ISPs will be fined up to a quarter of a million pounds for non-compliance. That  means they will have no choice but to install the traffic management systems and deep packet inspection, in order to comply. This is the same equipment that is used by the Chinese government to censor the Internet, and equipment being purchased by the Iranian government to enhance its censorship regime. Effectively, therefore, they are being mandated to install new infrastructure which will permit widescale censorship of every Internet user in the UK.

 

The Secretary of State's powers to order technical measures are not limited to copyright and could be applied for a different political purpose at some point in the future.

 

Clause 18 gives the government powers to take over the Internet domain registry, Nominet. Although this is only supposed to be in cases where their has been evidence of unfair or abusive proactices, the actual wording of the draft law is wide enough to encompass a range of cirucmstances that could provide commerically-driven excuses for such a take-over. Once again, the Secretary of State has the power to appoint the replacement domain name registrar.

 

The Bill makes a farce of the P2P consultation, which ended in late September. This Bill had to  have been in draft form before the Consultation ended, and it demonstrates that the current government does not listen either to citizens or to industry.

 

In my opinion, giving the Secretary of State such sweeping powers over the communications infrastructure would be problematic in most circumstances, but it is especially problematic when the incumbent Secretary is held capture by large media, film and music companies.

 

There are many other issues concerning this Bill. Notably concerning Ofcom's role. However, I suggest that you READ THE DIGITAL ECONOMY  BILL. The key measures are very easy to identify.


*In addition to beheading his wives, the English King known as Henry VIII (ruled 1509-1547) was a tyranical monarch who broke from the Church of Rome, burned monasteries, was an active censor  and re-wrote the  laws of the time to suit his own purposes. 

 

 

This analysis has been compiled using a range of legal sources, some of which  are confidential.  I am happy to acknowledge the excellent and detailed article by Francis Davey, barrister, writing on the Open Rights Group website :  


 

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009) Digital Economy Bill: Internet risk in Henry VIII clause  , http://www.iptegrity.com 2 December 2009

 

 

 

 

 

 

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Iptegrity.com is the website of Dr Monica Horten, European expert on Internet policy and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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