Lord Mandelson seems hellbent on stifling online creativity, says Bill Thompson

These days history repeats itself three times, first as tragedy, then as farce and finally as an ill-considered and illiberal proposal from Lord High Executioner Mandelson, the unelected Minister for Stuff in Gordon Brown’s government.

We saw it recently when he decided, against all evidence and in direct contradiction of the proposals in the Carter report on Digital Britain, that rights-holders or their representatives should be able to kick people accused of sharing copyright material without permission off the internet.

Then Mandelson, who owes his position in the government to the patronage of Gordon Brown rather than the mandate of the electorate, called for the ability to make up new copyright laws without having to go to the trouble of getting elected MPs to debate them. Perhaps he reckoned that operating without full democratic accountability was working so well for him that it might be useful if the music and movie industries could benefit from the same flexibility.

And it seems his wish is being granted.

Measures proposed in the newly published Digital Economy Bill will make it a lot easier for rights-holders to learn the identity of internet users from their ISPs, making it easier for them to start court action, and Ofcom has been told to devise suitable ‘technical measures’ to be used against repeat infringers. Some form of “three strikes” provision seems inevitable.

The bill also contains provisions to let the government use statutory instruments to amend the Copyright Designs and Patents Act 1988 “for the purpose of preventing or reducing online copyright infringement” instead of having to go to all the trouble of having a proper debate and vote on tabled legislation.

The government say this new power is needed to ensure that the law can keep up with new methods of viewing and transmitting copyright material and deal with what they are calling “emerging threats”, and Mandelson has already noted darkly that online file sharing services might be used illegally, so they could be the first in the spotlight for new regulation.

The battle over three strikes and ISP involvement is likely to continue, since the bill includes a lot of comments about reasonableness, standards of evidence and safeguards, and it may well be that there is enough leverage in the language used to enable Ofcom to come up with codes of practice and measures that are far less severe and far less damaging to the overall health of the internet than those Mandelson was originally calling for.

But these are dark days for those who have fought for a rebalancing of copyright law to reflect the interests of the wider public instead of the continued assertion of an aggressive approach to “intellectual property” by large rights-holders.

If the provisions allowing for the Copyright Act to be amended without debate go through then we might as well forget about having a vibrant creative economy in future. Today’s powerful companies will do everything in their power to ensure that the law punishes creative remixing, limits innovation to that which comes from established players and squashes anything that could be considered radical or interesting if it involves material that might conceivably fall under someone else’s copyright, and they will have a compliant government willing and able to grant their every wish without even a pretence at democratic accountability.

When the Digital Economy Act comes into force, will the last creative professional to leave the country please turn off our Internet
connection — we won’t be needing it.