The moral question in the Digital Economy Bill

By Jim Killock
1 Mar 2010

The Digital Economy Bill was announced in the 2009 Queen’s Speech before parliament. It reaches its Report stage in the House of Lords on 1 March 2010.

One part of it aims to tackle illicit downloads of copyrighted music and films, through controversial provisions for cutting off the connections of persistent offenders. It also includes an amendment to the Copyright, Designs and Patents Act 1988 to increase the criminal liability for “making or dealing with infringing articles” and “making, dealing with or using illicit recordings” to a maximum of £50,000.

Under the provisions of the Bill, Internet Service Providers (ISPs) would be forced to monitor their customers’ use of their networks, and to send any records of suspicious activity to copyright groups or else face a fine of £250,000 for non-compliance. Regulation of content is another theme of the Bill, through adoption of the Pan European Game Information (PEGI) standard for video game ratings.

But what is the moral question in the Digital Economy Bill’s approach to illicit internet downloads: is it about theft, or the punishment of the innocent?

The contribution to the parliamentary debate from the Established Church was clear. Illicit downloads are theft. The Lord Bishop of Manchester declared: “I join the general welcome for this Bill as an encouraging sign of the Government's determination not only to deal with the pressing issues of copyright and digital piracy - which, as several noble Lords have said, is a breaking of the commandment: ‘Thou shalt not steal’ - but to enable this country's digital future to be more socially inclusive, safe and beneficial to our economic well-being, our civic flourishing and the building up of our knowledge.”

From the perspective of rights groups like the one I belong to, this was a disappointing intervention. Moral simplifications like this are unworthy of anyone speaking on behalf of a church or religious body with a clear interest in social justice and fairness.

I say this with some cause. Copyright infringement is legally subject to a lower standard of evidence than theft, because it has a different, lower impact on the person whose rights are infringed. Equating infringement and theft is therefore simplistic and misleading, as it asks us to over-react and expect a severe punishment.

Unfortunately, that is exactly the trap that has been laid by very powerful copyright lobby groups, who are campaigning for draconian punishments, particularly to disconnect people from the Internet when they are accused of copyright infringement.

The underlying problem is that copyright holders can only tell which household might have shared their content, not which person. It is impossible, therefore, to target the punishment at the guilty person without a civil court hearing and examination of all of the evidence, and to judge on the balance of probabilities.

Taking large numbers of people to court would prove difficult and time consuming. So instead, the government has created a process that will allow whole families to be disconnected without the need for a hearing. If they want a hearing, they will have to pay in advance.

It is inevitable that in most cases, when a household is disconnected, someone innocent will be punished.

But there is also a basic question about the nature of disconnection as a punishment. People depend on the Internet as much as they depend on being able to walk down the street, to get to their shops, banks, education and work.

We would never consider banning someone from walking down the street, short of an offence so severe it requires a custodial sentence or a restraining order. Yet we are considering the online equivalent for a low level financial misdemeanour, called copyright infringement. And we are considering applying this punishment in such a way that not only the infringer, but also their family members are punished too.

As such, it is difficult to see how such an approach can be anything other than destructive of the Anglican Bishop of Manchester’s desire for a digital age “to be more socially inclusive, safe and beneficial to our economic well-being, our civic flourishing and the building up of our knowledge”.

These points need to be heard from religious perspectives. We are at a critical point in the development of the new digital age, when our rights are being shaped. Currently, the people most influential in this debate are music and film copyright holders, who are demanding draconian punishments. The voices of balance and fairness must be louder, if we are to avoid innocent people being punished.

The digital age is transforming society: bringing us greater democracy, transparency and new creative possibilities. When these freedoms are under attack, people need to get together to defend them, whatever their religion or belief.

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© Jim Killock is executive director of the Open Rights Group (http://www.openrightsgroup.org/). He was formerly external communications coordinator of the Green Party. In that role he promoted campaigns on open source, intellectual property, digital rights and campaigned against the arms and espionage technologist Lockheed Martin's bid for the UK Census.

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