Mandelson and €œThree Strikes€�: Not So Much €œDark Lord€�...


That Lord Mandelson has finally come down in favour of a “three strikes and you're out” approach to dealing with copyright infringement is not surprising, but it is profoundly depressing, not least because of the language he used in the speech announcing the move:

I was shocked to learn that only one of every 20 tracks downloaded in the UK is downloaded legally. One in twenty. You just can’t have sustainable creative industries under the pressure of this kind of theft – and that’s what it is. So I want to be absolutely clear. The British Government’s view is that taking people’s work without due payment is wrong and that, as an economy based on creativity, we cannot sit back and do nothing as this happens.

This is so utterly wrong, you wonder how he dared to frame it in these terms. It is not “theft”, it is copyright infringement – and if Lord Mandelson doesn't know the difference, then he should resign immediately, since he is clearly not up to the job.

It is not “taking people's work without due payment”, since the evidence is that many people *do* go on to pay: it's just that they want to hear stuff before they buy it.

And not only *can* you have a sustainable creative industry, but in fact the figures show that we already *do* for both music and films: that's pretty remarkable, because it has been achieved despite the industries' attempts to make buying digital stuff pretty hard. Imagine what could be done if they stopped fighting their customers?

But things are actually worse than the simple errors of his speech would imply. The announcement that the UK would be joining France's folly and trying to implement the punitive “three strikes and you're out” follows an extensive period of “consultation”, which at every stage recommended *against* precisely this route. (For a brilliant summary of what happened, and why it is outrageous, don't miss this wonderful post by JP Rangaswami, which compares it rather tellingly to some cricket history.)

This shows deep contempt not just for the consultative process, but also for the wide-ranging expertise of those commenting on the proposal. The fact is, the proposal is unjust and unworkable at just about every level.

Unjust, because it allows the media industries to function as prosecutor, judge and jury, with only minimal oversight by proper legal authorities; unjust because it cuts people off from what is fast becoming a necessity of modern life, as the UK government itself is promoting; unjust because it penalises an entire family for the alleged actions of one member: something that in war would amount to a disproportionate and vindictive act of reprisal - a war-crime, in fact.

It is unworkable because it will be almost impossible to tell whether copyrighted material is being transmitted legally or not; and ultimately it is unworkable because people will simply start encrypting material before downloading.

What makes this ill thought-out move even more regrettable is that at the same time that Lord Mandelson was announcing it, another minster, David Lammy, was announcing a much more sensible document, even if it has a rather silly name: “© the way ahead”. Here are just a few of its summary findings:

For the first time, individual citizens have the means to create, use and distribute copyright works through digital technology. People want to make use of these opportunities but in doing so it is almost inevitable that they will violate copyright. This mismatch of expectations is significant because neither the law nor people’s attitudes is easy to change.

Making non-commercial use less onerous for consumers, for example by removing the need to seek permission and make payment for personal use of individual copyright works, would help tackle the “mismatch of expectations” problem. But fair compensation for rights holders would be required. Action at a European level would be necessary.

Processes for licensing copyright works need to be improved. The Government has already brought forward proposals in the Digital Britain Report, which noted problems with access to “orphan works” and the potential benefits of of these problems. Non-compulsory registration systems may also help rights holders manage their rights more effectively.

It's also heartening to see statements like this:

The most fundamental issue of concern for the Government is that the simple, certain basis of UK copyright (the fulfilment of qualifying criteria leading automatically to rights over the work) is not mirrored in an equally simple and certain principle for users, through exceptions or otherwise. Neither the UK’s concept of fair dealing nor other countries’ approaches such as the US’s fair use doctrine seem to deliver such certainty or simplicity in practice.

All-in-all, this is probably the best document on copyright that I have seen from the UK government. It contains a lot of common sense, is balanced, and is full of positive suggestions for moving forward. It is truly tragic that instead of building on this good work, Lord Mandelson decided to try live up to his “Dark Lord” reputation by threatening fire and brimstone for copyright infringement – but ended up coming across more as the “Daft Lord”....

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