The effect of the Digital Economy Act 2010 upon ‘semiotic democracy’

Abstract

The Digital Economy Bill received royal assent on 12 April 2010. It was introduced in November 2009. At that time, it was much criticised for the changes that it sought to implement, namely a requirement under clause 10 for Internet service providers (ISPs) to keep a list of copyright infringers and in clause 17, a power held by the Secretary of State to make ad hoc changes to the Copyright, Designers and Patents Act (CDPA) 1988 without Parliamentary debate. As a result of amendments made in March 2010, clause 17 was significantly changed so that courts could request ISPs to block access to infringing sites – an amendment that provoked as much criticism as the original clause. The changes that the Act seeks to introduce could significantly impede the use of copyright works for even non-infringing ends, and they do not remedy many of the existing issues with copyright, namely (1) underlying uncertainty for content recipients as to whether a re-use will constitute copyright infringement, and (2) bias in the balancing exercise towards emphasising the skill, labour and effort of existing right holders. In fact, the Act will enhance these characteristics. The paper concludes by considering how the Digital Economy Act could have been implemented to mitigate these undesirable aspects of current copyright law.

Keywords:

• copyright
• Digital Economy Act
• semiotic democracy

Notes

See A. Mann, ‘Digital Controversy Bill’, http://www.bristows.com/?pid=46&nid=1491&level=2 (last accessed 9 June 2010).

See K. Howson, ‘Digital Economy “An Orwellian Nightmare”’, http://www.top10-broadband.co.uk/news/2010/01/digital_economy_bill_an_orwellian_nightmare_/ (last accessed 9 June 2010). See also C. Donstone, ‘Monday View’, http://www.dailymail.co.uk/money/article-1244025/MONDAY-VIEW-The-copyright-crackdown-pay-for.html (last accessed 9 June 2010); M. Reisz, ‘Digital Copyright Will Be Burdonsome’, http://www.timeshighereducation.co.uk/story.asp?sectioncode=26&storycode=410184&c=1 (last accessed 9 June 2010); Anon, ‘Digital Economy Bill Could Provide Citizen Backlash’, http://www.techeye.net/internet/digital-economy-bill-could-provoke-citizen-backlash (last accessed 9 June 2010). For criticism of clause 17 see K. Allen, ‘Internet Companies Urge Mandelson to Delete Clause’, http://www.guardian.co.uk/technology/2009/dec/02/digital-economy-bill-google-facebook (last accessed 9 June 2010); Anon, ‘Digital Economy Bill Could Breach Rights’, http://news.bbc.co.uk/1/hi/technology/8500876.stm (last accessed 9 June 2010); E. Berridge, ‘Digital Economy Bill Breaches Human Rights’, http://www.theinquirer.net/inquirer/news/1590819/digital-economy-bill-breaches-human-rights (last accessed 9 June 2010). For detailed discussion of the clause see T. Ballard, ‘Clause 17 of the Digital Economy Bill’, http://blog.harbottle.com/dm/?p=29 (last accessed 9 June 2010). For information about the tracking of individuals online, which is related to this, see The Register, available at http://www.theregister.co.uk/2009/05/12/davenport_lyons_acs_law/ (last accessed 9 June 2010).

J. Fiske, Television Culture (London: Methuen, 1987), 239. For development of this see W. Fisher, Promises to Keep (Stanford, CA: Stanford University Press, 2004), 28–9; S. Vaidhyanathan, The Anarchist in the Library (New York: Basic Books, 2004), 77–8. See also S. Katyal, ‘Semiotic Disobedience’, Washington University Law Review 84 (2006): 489. In relation to structure, see Y. Benkler, ‘From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access’, Federal Communications Law Journal 3 (1998): 561; L. Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999) and for interpretative analysis of the link between the layers, see inter alia A. Murray, The Regulation of Cyberspace (Abingdon, UK: Routledge-Cavendish, 2007), chap. 4. On passive re-use, see J. Hughes, ‘“Recoding” Intellectual Property and Overlooked Audience Interests’, Texas Law Review 77 (1999): 923.

Hughes, Recoding, and Fisher, Promises to Keep, 35, and for a similar view see HM Treasury, Gowers Review of Intellectual Property (London: The Stationery Office, 2006), 67. For general discussion of the economic impact of recipients entering into competition with the right holder, see W. Landes and R. Posner, ‘An Economic Analysis of Copyright Law’, Journal of Legal Studies 18 (1989): 325; H. Demsetz, Economic, Legal and Political Dimensions of Competition (Amsterdam: North-Holland, 1982).

Fisher, Promises to Keep, 31.

Fisher, Promises to Keep, 28–9; Vaidhyanathan, Anarchist in the Library, 77–8.

Katyal, ‘Semiotic Disobedience’, 489.

Benkler, ‘From Consumers to Users’, 561.

Lessig, Code and Other Laws, 87 and the appendix.

J. Bentham, The Panopticon Writings, ed. Miran Bozovic (London: Verso, 1995).

H. Rheingold, The Virtual Community: Homesteading on the Electronic Frontier (New York: HarperPerennial, 1994), 289. For other interpretations, see K. Robins and F. Webster, ‘Cybernetic Capitalism: Information, Technology, Everyday Life’, in The Political Economy of Information, ed. V. Mosko and J. Wasko (Madison, WI: The University of Wisconsin Press, 1988).

John Perry Barlow, ‘The Economy of Ideas’, Wired Magazine 2, no. 3 (March 1994).

G. Putnam, Authors and Their Public in Ancient Times (New York: Knickerbocker Press, 1893. For later developments, see R. Bowker, ‘Copyright: Its history and Law’ (Boston, MA: Houghton Mifflin, 1912) and C. Montalembert, The Monks of the West (London: Ballantyne Press, 1896. For information concerning the Stationers' Guild, see B. Kaplan, An Unhurried View of Copyright (New York: Columbia University Press, 1966), 3; and E. Arber, ed., ‘Introduction’, in A Transcript of the Registers of the Company of Stationers of London, 1554–1640, vol. I (London: Privately Printed, 1967), xxxi. See also H. Ransom, The First Copyright Statute (Austin, TX: University of Texas Press, 1956).

For further information, see Bowker, ‘Copyright’, 9.

See Kaplan, Unhurried View of Copyright, 3.

In re Verizon Internet Services Inc. 240 F. Supp. 2d 24, 26 (D.D.C. 2003) and In re Verizon Internet Services Inc. 257 F. Supp. 2d 244, 246–47 (D.D.C. 2003). See inter alia A. Kao, ‘RIAA v. Verizon: Applying the Subpoena Provision of the DMCA’, Berkeley Technology Law Journal 19 (2004): 405. For details concerning similar arrangements in the UK, see Department for Business, Enterprise and Regulatory Reform (BERR), Consultation on Legislative Options to Address Illicit Peer-to-Peer (P2P) File-Sharing (London: BERR, 2008) available at http://www.berr.gov.uk/files/file47139.pdf (last accessed 9 June 2010). The Memorandum of Understanding (MOU) is at 47.

Recording Industry Association of America Inc. v. Verizon Internet Services Inc. 351 F.3d 1229 (D.C. Cir. 2003).

As reported in The Register, see note 2.

The MOU is to be found in BERR, Consultation on Legislative Options, 47.

For a discussion of such technologies, see Metro-Golden-Meyer Studios Inc. v. Grokster Ltd., 518 F.Supp. 2d 1197 (C.D. Cal., 2007).

For example, see http://uk.youtube.com/watch?v=doMD-ORPPZA

For details, see Ransom, First Copyright Statute, 70–1 and Kaplan, Unhurried View of Copyright.

G. Davies, K. Garnett and Harbottle, eds, Copinger and Skone James on Copyright (15th ed.) (London: Sweet and Maxwell, 2005), 9–13.

N. Helberger and P. Hugenholtz, ‘No Place Like Home for Making a Copy: Private Copying in European Copyright Law and Consumer Law’, Berkeley Technology Law Journal 22, (2007): 1061 at 1061–2; and in relation to the same for DRM, see B. Rosenblatt, B. Trippe and S. Mooney, Digital Rights Management: Business and Technology (New York: M&T Books, 2002), 3.

Rosenblatt et al., Digital Rights Management, 3.

J. Griffin, ‘The Rise of the Digital Technology Meritocracy: Legal Rules and Their Impact’ Information and Communications Technology Law 15, no. 3 (2006): 211; for a solution to some of the issues raised see J. Griffin, ‘300 Years of Copyright Law: Time for a Change?’, John Marshall Journal of Computer and Information Law (forthcoming 2010). For a discussion of levies, see N. Netanel, ‘Impose a Non-commercial Use Levy to Allow Free Peer to Peer File Sharing’, Harvard Journal of Law and Technology 17 (2003): 1.

Griffin, ‘Rise of the Digital Technology’.

Enigmax, ‘This is How We Catch You Downloading’, http://torrentfreak.com/this-is-how-we-catch-you-downloading/, cf. M. Piatek, T. Kohno, and A. Krishnamurthy, ‘Challenges and Directions for Monitoring P2P File Sharing Networks’, http://dmca.cs.washington.edu/uwcse_dmca_tr.pdf (last accessed 9 June 2010).

Bentham, Panopticon Writings.

Davies, Copinger and Skone James.

See Consumer Focus, ‘Time to Change the Tune’, February 2010, available at http://www.consumerfocus.org.uk/assets/1/files/2010/02/Consumer-Focus-Time-to-change-the-tune1.pdf. The report includes data from a sample of 2026 individuals. See also D. Worth, ‘UK Public in the Dark Over Copyright Law’, http://www.v3.co.uk/v3/news/2258445/british-public-remain-dark (last accessed 9 June 2010).

HM Treasury, Gowers Review, 68.

See inter alia Designers Guild v. Williams [2001] 1 WLR 2416; Baigent and Leigh v. Random House Publishing [2007] FSR 247; for further detail see Davies et al., Copinger and Skone James, Ch. 7.

Kipling v. Genatosan Ltd (1917–23), MacG CC 203; Farnald v. Jay Lewis Production Ltd [1975] FSR 499.

Walter v. Lane [1900] AC 539 at 545.

See Griffin, ‘300 Years of Copyright Law’, forthcoming.

Universal City Studios Inc. v. Reimerdes 82 F.Supp.2d 211 (SDNY, 2000); Universal City Studios Inc. v. Corley 273 F.3d 429 (2nd Circuit, 2001).

See cites in notes 1 and 2 above.

Particularly in relation to smaller Internet websites, who may not be able to afford to indemnify the ISP for costs. For general discussion see inter alia Anon, ‘ISP Providers Outraged’, http://8el.com/news/industry-news/isp-providers-outraged-at-digital-economy-19652564.html (last accessed 9 June 2010); Anon, ‘Youtube Under Threat from Digital Economy Bill Changes’, http://www.telegraph.co.uk/technology/news/7368174/YouTube-under-threat-from-Digital-Economy-Bill-changes.html (last accessed 9 June 2010); D. Meyer, ‘ISPs Attack Misguided Site Blocking Plan’, http://news.zdnet.co.uk/communications/0,1000000085,40070583,00.htm (last accessed 9 June 2010).

Griffin, ‘300 Years of Copyright Law’.

See inter alia Netanel, ‘Impose a Non-commercial Use Levy’; Fisher, Promises to Keep.

For example, consider the case of Designers Guild [2001] 1 WLR 2416, which ran for 4 years.

For details, see C. Williams, Major Law Firm Drops Filesharing Threats.

See Griffin, ‘Rise of the Digital Technology’.

Gyles v. Wilcox 27 Eng. Rep. 682.

E. Barnett, ‘TalkTalk Would Fight Digital Economy Bill in Court’, http://www.telegraph.co.uk/technology/7079982/TalkTalk-would-fight-Digital-Economy-Bill-in-court.html (last accessed 9 June 2010).