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Digital Economy Act becomes law amidst continuing controversy

UK: The much-discussed UK legislation was approved last week as Parliament prepared for dissolution ahead of the General Election on May 6, writes David Davies.

UK: The much-discussed UK legislation was approved last week as Parliament prepared for dissolution ahead of the General Election on May 6, writes David Davies. Greater powers to confront those who download music illegally and increased obligations on internet service providers are among the clauses of the Digital Economy Act, which was the subject of considerable revision before it passed into law last Thursday (April 8).

Developed to establish a new pathway for the UK’s creative and cultural industries in the digital era, the Digital Economy Bill was one of ten major pieces of legislation to receive attention during the ‘wash-up’ – a frantic period of horse-trading that precedes the end of a parliamentary session prior to a General Election.

While several major proposals fell by the wayside – including a referendum on the voting system and a plan to end all remaining hereditary peerages – the Digital Economy Bill was passed during the closing hours of the parliamentary session by 189 votes in favour to 47 against. In what is unlikely to be regarded as a triumph for the democratic process, this means that only 236 MPs participated in the vote – a mere 36% of the full complement.

The Bill’s approval was nothing if not controversial. Former minister Tom Watson defied the Government whip for the first time, insisting that the legislation required more scrutiny and could result in innocent internet users being prosecuted simply because they live in the same building as those committing downloading offences.

“There might be a deal with the Tory front bench and the Lib Dem front bench, but there are 20,000 people who have taken the time to e-mail their MPs about this in the last seven days alone,” Watson was quoted as saying. “They are extremely upset that this bill will not have the scrutiny it deserves and requires.”

Some elements of the Bill were dropped as the Government sought to achieve a consensus – in particular, a clause that would have enabled the commercial use of individuals’ photographs (so-called ‘orphan works’) – but the rump of the legislation remained in place. The most attention-grabbing aspects remain the ability of copyright holders to send copyright infringement reports to ISPs and, if requested, receive infringement lists pertaining to individual, ‘anonymised’ users, but the far-ranging 76-page Act also contains an extension of Ofcom’s scope to include all media services as well as measures concerning video game ratings and internet domain name registration.

Although multiple internet campaigns attest to the strength of feeling in some quarters about the implications of the Digital Economy Act, it was generally welcomed by the UK music business, with the BPI, the Music Producers Guild, the International Federation of the Phonographic Industry and the Creative Coalition Campaign among those issuing statements in support.

Music industry umbrella group also welcomed the Bill’s approval, with chief executive Feargal Sharkey observing that, as a result of the Act, “firm foundations are now in place on which to develop the UK’s digital economy. The UK’s music industry has no urge to look backwards and, as we have consistently stressed, legislation is not a means to an end. It is a spur to action.

“We acknowledge that the real work begins now – both in terms of developing a Code of Practice with industry partners and Ofcom, cooperating with Internet Service Providers, and by opening up even more legitimate ways for fans to enjoy the music and creativity that they love.”

But even with the Bill’s passage into law, the controversy surrounding it has failed to dissipate – not least in the ISP community. Writing on its blog, one of the UK’s three largest providers, TalkTalk, struck a decidedly defiant note, saying that it would “resume highlighting the substantial dangers inherent in the proposals” after the election and unless “served with a court order” would “never surrender a customer’s details to rightsholders”.

The practicality (or otherwise) of pursuing illegal downloaders, and the costs resulting thereof, will provide a major test for this new Act – ensuring that it remains near the top of the news agenda in the months to come.