In defence of the Digital Economy Bill

A guest post by Bernie Corbett, General Secretary of the Writers' Guild of Great Britain

Late last night the much-debated but little-understood Digital Economy Bill was passed by the House of Commons and will become law as part of the so-called 'wash-up' of uncompleted legislation as the old Parliament breathes its last.

By far the most disputed part of the bill was the section 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.

I make no apology for the support given to this measure by the Writers’ Guild – in common with nearly all the trade unions, collecting societies and other organisations representing creators and performers. Online copyright infringement not only deprives creators of payment for the enjoyment of their work, but also damages the businesses that, like it or not, we depend on for commissions, fees, royalties and residuals.

It cannot be right for society to turn a blind eye when unscrupulous traders seek to profit on the backs of other people’s creativity, hard work and risk-taking, nor for internet service providers to have no role in policing the material they transmit.

The measures in the bill have been misrepresented as 'three strikes and you’re out' and even as the denial of a 'human right' to access the internet. For one thing it is going to take many more than three dodgy downloads before anyone faces restrictions or suspension of their internet service; and there will be an appeals process to filter out miscarriages of justice or disproportionate penalties.

But while there need to be sanctions to deter infringements, I believe they will operate only rarely and in the most serious cases. Much more important in combating piracy is for legitimate suppliers to ensure all their material is readily available at reasonable prices.

To release a film and then wait three months before putting out a DVD, and six months before a download, is to test the patience of consumers in a world of instant gratification. It is at the moment the trailers hit the screens, and the premiere is reported in the press, that viewers will want that film on their 50-inch plasma screens with 5-speaker surround sound. The vast majority are prepared to pay.

Similarly, publishers have to learn that they can no longer issue a hardback, months later a paperback, and eventually an ebook. The owners of Kindles and iPads will want to start reading as soon as they have read the reviews. Not only that, readers will want the books to be readable on any device. I recently bought an £8 ebook for my Sony Reader only to discover that I was prevented from transferring it to my iPhone. It won’t do.

Pricing is an issue as well. Consumers will expect downloads to be cheaper than DVDs or printed books – after all many of the costs, such as manufacture, packaging, warehousing, freight and retail premises are massively reduced or non-existent. The power of iTunes means that online films and television programmes are much cheaper than DVDs, but so far in publishing many ebooks are the same price – in some cases even higher – than a physical copy. Many consumers may opt for pay-per-view or subscription systems instead of permanently owning a copy.

True, aggressive pricing could well mean that writers’ royalties per copy distributed may drop, so we will have an interest in supporting a regime where the volume of sales is higher. This is perfectly possible – look at the enormous sales of iPhone apps over the past few months. Many users are simply not concerned about spending a pound or two with a single tap of the finger. Added to that, in the digital world almost every obscure piece of work will become available, including thousands of items that never made it on to a CD or a DVD, so less prolific or successful writers will at last be included in the 'long tail'.

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 – for instance a plan for government-sponsored local news services.

A lost clause with considerable implications for writers was one that would have authorised the licensing of 'orphan works' as well as introducing the concept of 'extended collective licensing'.

Orphan works are those whose authors are unknown or untraceable – this applies to most printed ephemera, a lot of journalism, many out-of-print books, some old films and much TV and radio archive material. Currently none of this material can legally be published or exploited. The idea was that collecting societies (such as ALCS, which handles photocopying of books and journals and the use of UK TV programmes on European cable channels) would be empowered to license such material, enabling it to be used legally, subject to strict conditions such as a thorough search for the rights owners and charging a market price to avoid undercutting other creators.

This reform on its own would almost certainly have been accepted had it not been for the more controversial extended collective licensing. This provision was intended to cover the increasing headache for various national institutions, such as the British Library and the BBC, which hold masses of old copyright material that they can’t use because they don’t have the resources to seek permission and make individual payments (often tiny) to the many thousands of rights owners – who would include the writers of all scripted BBC shows made before 2002. The issue is a big spanner in the works of the BBC’s plan to open up its entire archive online.

This material could have been licensed in a similar way to orphan works, but what was a step too far for many people was that the new law would also have allowed the British Library or the BBC to license themselves to use the material. This is almost the exact opposite of the collecting society principle that the licensing body should be representative of the creators and rights holders, not the users or exploiters.

To be fair, the bill would have required licensing bodies to jump through a lot of hoops and observe plenty of safeguards. Whoever wins the general election, we can be sure it will not be long before the twin issues of orphan works and extended collective bargaining are raised again – and we can only hope that the next set of proposals will be better – or at least no worse – than the ones that have just been junked.

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. If you want to know more, the CRA’s election manifesto was enclosed with the latest copy of the Guild’s magazine UK Writer, or you can visit their websites at www.creatorsrights.org.uk and www.britishcopyright.org.