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As an aspiring screenwriter based in the UK, I was concerned recently to learn of the Writers’ Guild support for the Digital Economy Bill which I see as a great threat to the Creative Industries of the UK. I expressed this concern (via twitter) to the Writers’ Guild (@TheWritersGuild) and was directed to their blog for a statement on the matter from the Chair of the Guild’s Television Committee.

The full contents of this statement can be read at the link above. However, the general thrust of the piece supports the bill on the grounds that it protects jobs in the Creative Industry. Since I believe that this is not the case, I have written the following Open Letter requesting a clarification of the standpoint of the Writers’ Guild of Great Britain:

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To the Chair of the Television Committee of the Writers’ Guild of Great Britain,

I am an aspiring screenwriter based in the UK and directing my work towards the UK market. I was recently highly concerned to learn of the support conveyed by the Writers’ Guild – an institution of which I hope, one day, to become a full member – to the Creative Coalition Campaign in regard to the controversial Digital Economy Bill.

I agree wholeheartedly with the Writers’ Guild that various clauses of the Bill in question will be hugely beneficial to the Creative Industries and the writers which it represents and I certainly agree that online piracy needs to be addressed. However, certain clauses in the Bill – as it stands – would likely damage the Creative Industries and those employed within.

I therefore request that the Writers’ Guild clarifies its position in regards to the following points:

• That the Writers’ Guild does not believe that the creators it represents would benefit from the restriction internet which has, over the last decade, become an invaluable tool to share ideas, creations and to garner exposure and acclaim for created content.

• That the Bill deals not with internet pirates, but with those who share copyrighted material – regardless of the identity of the copyright owners.

• That the scale of internet piracy is a result, not of those seeking financial gain or of those seeking to deprive the creators of such gain, but of a lack of convenience and sharing experiences provided by the copyright holders. And, furthermore, that the Bill does nothing to encourage the Creative Industries to adapt in order to provide the public with such convenience where they do not already do so (I refer to the advancement and proliferation of online services such as BBC iPlayer and also of future media such as so-called Webseries). As online media becomes more widespread – an industry which is not limited by national borders – a failure to adapt on this front would likely harm the Creative Industries of the UK and that the Bill, as it stands, not only fails to encourage such adaption, but would make such adaption more difficult and, in some places, illegal.

• That the Bill, as written, would allow suppression of legitimate internet media by larger businesses – effectively suppressing competition; victimising small-businesses and start-ups (including both creators of content and providers – such as ISPs and businesses which provide public internet services); and effectively costing jobs.

• That the Bill, as written, does little to protect creators of so-called Orphan works (particularly photographers, but also potentially creators of online-video) from having their rights infringed by those who may wish to use said works without giving due recognition (financial or otherwise) to the copyright holder. In fact, the Bill, as written, would do more to protect those who “steal” said copyright for their own gain, requiring very little effort on their part to determine the owner of such copyright.

• That the Bill has not received sufficient scrutiny to prevent it being abused to restrict creativity for the financial benefit of large businesses and corporations (specifically Claus 18), which would harm the writers which the Writers’ Guild protects and benefit those whom the Guild is often called to protect against.

The stance of the Writers’ Guild seems to be based on the assumption that those opposed to the bill do not wish for any such bill to be put into effect. However, contrary to this, most opponents – myself included – would rather have a workable, impartial piece of legislation than the ineffectual and unscrutinised Bill in its current form. What myself, my allies in this situation and – I would hope – the Writers’ Guild would expect this legislation to acheive is this:

• To promote, protect and preserve the facilities and advantages of the internet, as well as protect those who create content for it and those who legitimately share content using it.

However, the Bill, as it is written, would fail in many aspects of that statement and, furthermore, several clauses of the Bill could – and probably would – be used to achieve quite the opposite (detailed above). A poor, ineffectual and unjust piece of legislation would likely do more harm to the creative economy of this country than if the Bill was delayed until such time as it achieves the objectives outlined in the above statement.

If the Writers’ Guild is not prepared to address each of the points raised above, would it at least agree that it would only support a Digital Economy Bill which is delayed until such time as it properly supports those whom it represents? Or, is it the position of the Writers’ Guild that the Bill, as it is currently written, already supports its members and aspirant members such as myself?

Yours sincerely,

Andrew James Carter

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I am aware that (even as I write this) the Digital Economy Bill is enduring its third reading in the House of Commons, so this letter is being penned somewhat late-in-the-day. However, I was not aware of the Guild’s stance until very recently and I do not believe the stance of the Guild to be moot even if the Digital Economy Bill is passed in its current form.

Should I receive any response, I shall post it here. Additionally, should anyone wish to comment on this letter or add more to my words, please comment below.

Today sees the second reading of the Digital Economy Bill in the House of Commons. For the uninitiated, this bill seeks to legislate the internet – endeavouring to help the British economy cope in a digital world and to combat piracy. Aside from lending new powers to media regulator Ofcom, the DEBill (twitter hashtag: #debill) contains two particularly dangerous clauses.

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Three Strikes and Everyone’s Out
The first – the so-called “three strikes” rule – would allow any phone-line to be disconnected from the internet after three allegations of copyright infringement. Note that these allegations need not be proved, simply alleged, and that the bill refers to an internet connection – not the copyright infringer themselves. This means that libraries, internet cafes, universities – anywhere which offers wi-fi internet to its patrons – would be held liable for said patron’s actions. Go to Heathrow with a laptop, download three episodes of Mock the Week, from anywhere other than BBC iPlayer, and Heathrow’s Airport’s internet connection could be cut off, permanently. I’m not, for a moment, suggesting that this would actually happen – but it demonstrates that the bill has been written to be deliberately vague, allowing huge scope for abuse and meaning that it will, inevitably, be used to infringe the rights of many innocent citizens.

And that is the least dangerous of the clauses.

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Unlucky-17
Alongside the 3-strikes rule is the dreaded “Clause-17″ which has changed form on several occasions. Originally, this clause would have allowed the Business Secretary (currently Lord Peter Mandelson) to change the law seemingly at whim with the intent of tackling new forms of piracy swiftly without having to await new legislation. In essence, Peter Mandelson would have been given a free pass to make anything he wished illegal with no notice, no oversight and no restrictions. Again, it’s highly unlikely this would ever have happened or have been abused to the full extent that it could be – but the pure fact that the potential for abuse exists should be cause for concern.

However, that was only the original Clause 17. The plot was yet to thicken. While being reviewed by the House of Lords, the fateful clause was killed by Lib-Dem peer Lord Clement-Jones who replaced with the new Clause 18. This time, the clause gave the high-court powers to legally require ISPs (Internet Service Providers) to block websites which provided access to “significant quantities” of copyrighted material upon request of the copyright owner. Again, the vaguely written clause seemed deliberately loose – designed to give it the scope to tackle unforeseen developments in piracy, but in actual fact simply giving huge scope for potential abuse. And, this time, that abuse would most certainly occur.

The way this new clause-18 was written, the ISPs would be responsible for barring the accused websites and they would be responsible for paying the court costs of answering such a request. In reality, the ISPs would be unable to fight such battles against the might of the creative industries and so would most likely block the offending sites without challenge. Also, the wording off the bill fails to clarify what it means by providing access to copyrighted material and what it means by “significant quantities” of said material. Interpreted a certain way, the bill could refer to any search engine capable of finding said material and since the ISPs would be unable to afford the legal costs of challenging any such request, the search engine would be blocked automatically, without intervention. In short, business giants would very easily be able to block Google, YouTube, eBay, all social-networking sites, file storage sites, blogs – any website which they could form the very shakiest case against. The legal case would not need to be good, it would just need to exist because, as we know, the ISPs would be unable to challenge it without going bankrupt.

If you think this would not happen, similar clauses in the UK’s libel laws are already used to suppress freedom of information and freedom of the press – simply if the litigating business (or individual) does not want a story to break. These never-challenged pieces of legal-action are called super-injunctions and allow the filthy rich (who can afford the legal costs) to suppress the voices of the relatively poor (who the rich know cannot afford the legal costs). Furthermore, these injunctions have been used to suppress free-speech across the world – all from British courts. Ironically, Jack Straw has promised to review and reform these libel laws should Labour be re-elected (as have the Liberal Democrats).

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How Convenient…
Having returned to the House of Commons for its second reading – conveniently scheduled for the same day Gordon Brown was set to call the election – clause 17 was clarified somewhat, now requiring the Justice Minister (currently Jack Straw) to consult “widely with industry” before allowing such court cases to be put forward. However, again the wording is vague and it may still be possible for businesses to demand that ISPs block certain websites without oversight since the Justice Minister would only become involved once the case was actually going to court (and since the ISPs would be unlikely to challenge, it seems unlikely that would happen). In addition, “consult widely with industry” could simply require the Justice Minister to consult with the creative industries alone – it makes no mention of consulting with the ISPs or other parties.

The consequences of this clause are far-ranging to the extent that a new loophole for abuse occurs to me every day. Today’s notion was Rupert Murdoch’s NewsCorp demanding SkyBroadband (also owned by Murdoch) block its competitor’s websites on the flimsiest of evidence of copyright infringement. Since NewsCorp and bSkyb are both Murdoch’s companies, Murdoch could prevent all Sky subscribers from accessing any media except that owned and controlled by his corporations. It should also be mentioned at this juncture, that the majority of the original bill (and many of the subsequent amendments) were effectively written by the creative industries, Murdoch playing a prominent role. They must, we assume, have hoped that few would notice the similarities between the industry’s proposed bill and the nearly identical one which emerged from parliament shortly afterwards.

UPDATE: With the announcement of the General Election timed for the same morning as the Second Reading of the Digital Economy Bill, only 5% of MPs arrived in the House for the debate. If anyone can equate this to democracy, you are – bluntly – wrong.

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The Root of the Problem
So what’s the real problem at the heart of this? What’s the root cause of this draconian piece of legislature? Well, the business-model of the creative-industries is collapsing. The major players in this game are, almost exclusively middle-men who made their fortunes discovering talent, packaging it and selling it. With the dawn of the internet, however, such middle-men are no longer needed – talent has its own portal for finding its market (beginning with sites like YouTube) and the middle-men of old don’t want to accept that their way of working – of profiting – is over.

The problem is that these people are still hugely rich and hugely powerful. Rupert Murdoch alone – through The Times and The Sun – can reach the ears of the majority of the British public, most of whom would not even look for the spin in the articles they read. If he wanted to, Murdoch could hand-pick who he wished to run the country. In fact, the only thing he can’t control is the internet.

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Lies, Damn Lies and…
Already the mis-information about everything surrounding the bill is mounting. Today, I read that piracy costs the creative industries more than £1billion every year. I’ve heard figures in the hundreds of millions before, but this seemed insane, so I went and checked that statistic and realised something. All such statistics are based on the volume of pirated material estimated to be downloaded from the internet every year. Even if we assume that the studies of this figure (despite the vast majority being conducted by the creative industries themselves) are not inflated, this is not by any means a measure of the money being taken from the creative industries. The £1billion figure makes the assumption that every person who downloads a piece of pirated media would otherwise buy that media from a legal source. Does that, even for a second, seem likely? For starters, recent studies have shown that most pirates buy the things they pirate anyway – they simply pirate to preview the material or because they can’t wait for products which are still, non-nonsensically, released at different times around the planet.

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How to Actually Stop Piracy
The internet gives people what they want immediately, that’s the beauty of it, and through piracy people can get access to media instantly. In essence, there is a huge gap in the market which the creative industries have failed to fill and instead, the pirates filled it for them. But still the industries don’t learn, they rant against the pirates, push governments to pass outrageous legislation – which will most likely leave the worst pirates unscathed and deal most of its damage to the relatively innocent – and still fail to fill that gap. They don’t even realise that its there.

I would love – absolutely love – to see figures on how much music piracy has fallen since the rise of iTunes. I’ve searched for figures, but all industry studies I’ve found show clear biases – no one wants to admit that piracy may have fallen, even if there’s a new, workable business model in it. Deliver media with the same speed and accessibility as the pirates (instantly, worldwide) and the battle becomes a very simple face-off – do you pay a small amount (iTunes charges 79p per song, piffling) for the high-quality, legal version which will pay the artist which produced it, or do you pay nothing for the unknown-quality, illegal version? If the creative industries were to stop for a moment and actually answer the question of why people pirate in the first place, they could solve the problem quickly. The problem is, even if they were to ask that question, the answer would fall on deaf-ears once it reached the Rupert Murdochs who ultimately call the shots. The answer may seem obvious to us internet-savvy types, but it seems clear now that the old giants don’t understand the internet even slightly – its why the Digital Economy Bill is so vaguely written and why some parts of it are so hopelessly unenforceable. They haven’t got a clue – but, for some reason, they think they do. Their arrogance and petulance at being told otherwise is preventing them from solving the problem. However, the moment one of the industry giants wakes up and smells the proverbial – that giant will simply slaughter the rest. Just look at Apple.

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YouTube versus Viacom
While all this is speculation – I am, as yet, unable to psychically invade Murdoch’s brain – it’s the only answer that makes sense to me. Why else would Viacom (supposedly a tech-savvy company) be destroying itself trying to sue YouTube for copyright infringement while proving constantly that it doesn’t understand how computers – let alone YouTube – work? Viacom’s case is that YouTube should be able to prevent copyrighted material from being uploaded onto its site. Despite the fact that YouTube has one of the best records for removing content once informed of its copyrighted nature, Viacom insists that YouTube should be somehow able to identify that material itself. In order to actually do this, YouTube would need a list of every piece of copyrighted material on the planet and a corresponding list of IP addresses which are allowed to handle those pieces of material. Oh, and it would also have to somehow figure out that a low-quality recording of The Matrix was actually The Matrix from the uploaded file alone. Viacom’s case was garbage to begin with – and it has not helped itself from there. Firstly, Viacom was forced to admit that it was unable to identify itself which materials it had legally loaded onto YouTube itself and which had been uploaded by third parties. So how it expected Google to do so is anyone’s guess. Secondly, Google (owners of YouTube) were later able to provide evidence that Viacom had ordered employees to upload copyrighted Viacom material onto YouTube themselves in order, presumably to add to the number of instances they could direct at the website. Viacom’s case rests, as it always did, on the courts themselves being sufficiently ignorant of computers and the web to buy its ludicrous claim that the magical YouTube is capable of identifying copyrighted material at upload, but, for some reason, does not.

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The Dirge Begins (on Kazoo)
Unfortunately, Viacom’s hope is a very real one and it’s the very same effect which has allowed the Digital Economy Bill to get this far. The people calling the shots – the people with whom the important decision ultimately rests – haven’t got the first clue about the object of their decision. So now the Digital Economy Bill is being rushed and hushed through parliament in the final days before its disillusionment in the run-up to the general election. It is not being debated further, it will almost certainly be passed in this wash-up period and enter law before the next government takes office. And, with that, the dream of the internet – of instant, infinite freedom of both speech and expression, everywhere – will cease.