Blink and you’d miss it, but there is a tiny little Bill on Intellectual Property being discussed in the UK Parliament this week. The Bill has nothing to do with copyright or the enforcement of it (only patents and design rights) but guess what? There are calls for Internet copyright enforcement to be included in it. Could they, and should they, slip in measures like criminal penalties and increased intermediary liability, into the IP Bill mid-process, without having done the relevant consultations and contrary to EU policy?
***Updated Wednesday 29th and Thursday 30th January. See below.***
The Intellectual Property Bill goes to the Committee stage today, having had a second reading last week. The second reading is supposed to be where MPs debate the principles of the Bill and the Committee is where they scrutinise the detail. On the current schedule, the Committee stage will be over by Thursday.
That’s why this is important because, if I’m reading the debate correctly, there were requests made in the Second Reading to slip in new enforcement measures in the Committee stage. The Minister, David Willetts, appears to have rejected these requests, but from a policy perspective, it’s nevertheless an interesting development.
Enforcement is the other side of copyright. It is the power to sanction ( i.e. punish) people who infringe. Many people make the mistake of thinking it is just an add-on, and dismiss it. Actually, it has been in copyright law as long as copyright, in whatever form, has existed. In the good old days, there were some quite brutal enforcement measures, for example in the seventeenth century unlicenced ballad singers could be whipped through the City of London (for full citation, see my book The Copyright Enforcement Enigma). That doesn’t make it necessarily right, but it does explain why the copyright industries act as they do.
Historically, it is enforcement that drives the rights-holder lobbying, since the loss of powers to sanction and the ensuing ‘freedom’ to publish is perceived by them as the greater problem. Parliament has been beseiged by rights-holders demands throughout the centuries, and interestingly, it has not always acceded to what they wanted. (Again, see The Copyright Enforcement Enigma for citation and other sources).
In that context, we should perhaps not be surprised that the rights-holders have got at the MPs debating the Intellectual Property Bill. In last week’s Second Reading debate on the IP Bill., where MPs are supposed to discuss the principles of the Bill, certain pro-copyright MPs raised again the rights-holders demands for Internet copyright enforcement measures.
Mike Weatherley MP, who has recently been appointed as David Cameron’s special adviser and comes from the copyright industries himself, read out an entire shopping list of rights-holder demands: increasing the maximum penalty for digital copyright theft from two to 10 years; stop advertising and payment facilities on websites; criminal liability for ISPs and search engines; disconnections, fines and imprisonment for users.
Interestingly, Mr Weatherley mentioned that in his opinion, there was ‘a missed opportunity’ to include such measures could in the IP Bill ‘There are other measures […] that are not in the Bill but perhaps should be’. A little later in his speech he said : “I am grateful to the Alliance for Intellectual Property, which has produced a useful list of recommendations on how the Bill could tackle IP”.
This looks to me like he wanted to get the government to slip strong Internet copyright enforcement measures into the Intellectual Property Bill – something it was not designed to do.
Moreover, any such measures would seriously tilt the balance of third-party liability as it currently stands under UK and EU law. This is not something that should be done in a short 3-day scrutiny intended to deal with a limited set of other measures.
Nor do I think it can be done legimately this way, because there has been no public consultation, and measures affecting liability of search engines and ISPs will have to go through the full legislative process and scrutiny by the European Commission against the full EU legal framework before they can be put into law. (See my book A Copyright Masqerade: How Corporate Lobbying Threatens Online Freedoms which explains the UK process in the context of the Digital Economy Act).
Of course, the policy lead on copyright is the Intellectual Property Office (IPO) and, as the Minister, David Willetts explained, the IPO works with the Department of Culture, Media and Sport on copyright enforcement online.
I assume that this why Mr Willets diplomatically brushed it off.
If you'd like to know more about how the rights-holders lobby the UK Parliament, see my book A Copyright Masqerade: How Corporate Lobbying Threatens Online Freedoms
Update: Wednesday 29 January. Reading the transcript of the IP Bill session on Tuesday, it vindicates what I suggest above. The discussion was almost entirely about Internet copyright infringement and Google. An amendment was tabled that would have committed the government to draw up "proposals that will have the purpose of ensuring technology companies hinder access via the internet to copyright infringing material.’. In plain language, this means 'commit the government to drafting a new law for Google and ISPs to police for copyright'. If I understand correctly, the amendment was withdrawn, but the point is that it was there at all.
Update: Thursday 30 January on the IP Bill. New clause 3 tabled . If adopted, the IPO will be mandated to "report to both Houses of Parliament on proposals that will have the purpose of ensuring technology companies hinder access via the internet to copyright infringing material "
This is a way to corral the government into drafting a new law for intermediary liability. In other words, the 'technology companies that should hinder access' are Google, FaceBook, and any other platform provider. 'Proposals' in this context means a draft law. Hence, this would be a law to force Google and other platform providers to police their content. so this is a very serious amendment with major implications for the Internet and society. Notwithstanding that this would be contrary to European law, which has a struck a balance that has been agreed by all interest groups.
There are five new clauses tabled. All appear to coincide with the rights-holders' agenda. The first one is to put in place some kind of IP Czar, who would look after copyright industry interests (NC1). NC5 tries to upgrade the crimiinal penalty for copyright infringement from two to 10 years. This penalty would apply to all forms copyright infringement, including online. It would sneak in a change, without a full review of the copyright enforcement provisons and without a consideration of the issues concerning copyright and the Internet.
Both NC1 and NC5 were withdrawn - no IP enforcement (Internet enforcement) tzar and no 10 year criminal penalty. But the point of these amendments is that they prime Parliament so it is ready when a law eventually arrives. They will have been put there by industry interests who would like to see these measures. For the moment, the pressure is lifted, but it will no doubt return.
The government is to carry out a study later this year on penalties for IP infringement, including criminal penalties (as announced by the Minister, David Willetts. in the IP Bill debate).
I am still a bit confused about NC3, but think it was dropped in the Tuesday session.
The amendment text is here.
I did almost blink and miss it, but for a tip-off from TorrentFreak: UK Considers Throwing Persistent Internet Pirates in Jail
This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2014, Should copyright enforcement be in the IP Bill?, in Iptegrity.com 28 January 2014. Commercial users - please contact me.