Copyright law involves a delicate balance, made all the more fragile by the number of people who now find their every day actions affected by it. Some people benefit, others find ordinary behaviors made illegal. Reforming copyright in the face of new technology is a vital process, but it needs to be performed carefully, with all affected parties considered in the debate.
In the UK, the Labour administration's impatience to pass its "Digital Economy" agenda, risks throwing that balance utterly out the window.
In less than 12 hours' time, the draft Digital Economy Bill will be released. It will apparently include a provision granting the Secretary of State &mdash currently Lord Peter Mandelson &mdash the power to make statutory instruments that can re-write Britain's Copyright, Designs and Patents Act with the minimum of Parliamentary debate,.
Secondary legislation has been used in a sweeping manner before in the UK. After the UK's RIPA surveillance act was passed with promises that it would only be used for serious crime, secondary legislation was subsequently proposed that expanded its snooping powers to dozens of government bodies, including the Post Office and the Food Standards Agency.
Using secondary legislation as part of the Digital Economy Bill is far more dangerous. This bill would grant the Secretary of State sweeping powers to mess with the very fundamentals of the UK copyright system law, ignoring the voices of UK citizens to meet the needs of one set of interest holders:
In a letter to Harriet Harman, the committee leader who would be responsible for granting such powers, Mandelson says he is "writing to seek your urgent agreement" to changes to the 1988 Copyright, Designs and Patents Act "for the purposes of facilitating prevention or reduction of online copyright infringement".
Once the Digital Economy Bill is passed by Parliament, the Secretary of State could effect wide-ranging changes to the copyright system very swiftly. To give an example of why Mandelson feels it necessary to arbitrarily transform the law, in this same letter, he expressed his concern over the recent emergence of "cyberlockers" as a threat to the media industries.
"Cyberlocker" is the entertainment industry's name for services like Amazon's S3, Dropbox, Apple's MobileMe iDisk, Ubuntu One, or YouSendIt that allow you to easily upload, synchronise and share files with friends. Businesses and individuals use these services every day to collaborate with colleagues and pass on files like family photos or large work documents. In Britain, this entire large, useful Net market innovation could be regulated out of existence without even a vote. And if you think that is not likely to happen, consider that the entertainment industry successfully lobbied the US Trade Representative to include an obligation on the South Korean government to target the same sector (“webhard services”) in the US-Korea Free Trade Agreement (see the third side letter).
If Mandelson is specifically seeking the power to capriciously wipe out entire fledgling industries that depend on our current copyright law, imagine what other instruments from the grab-bag of recent rightsholder demands might also be candidates for statutory instrument action. Throttling or blocking P2P? Creating joint investigation teams of police and IP owners? Filtering all Net traffic through music-infringement-filters? All of these are entertainment industry promoted proposals which judges or politicians have previously considered.
Once granted this power for these reasons the meddling would never stop. After all, this is the government that said:
If [illegal filesharing] is a massive problem we could turn on a fast, powerful response... If there is a little problem we can be more proportionate. How draconian we are will be a matter for the secretary of state to decide at the time."
The only way to stop constant ratcheting up of punishments and restrictions on innovation is to ensure that such broad powers are never granted. If you're in the UK, call your MP now and tell him or her that no Secretary of State should be able to rewrite copyright law on a whim.