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Digital Economy Bill [HL]

My Lords, I had intended to make quite a substantive intervention on this matter, but in view of the time and the distinction of the audience—though not the volume of the audience—I shall try to keep it reasonably short. However, it goes to the heart of the Bill and my concerns about the Bill. I appreciate, as others have also said earlier in the debate, that the Government have come forward with a number of amendments that reflect the fact that they listened to what was said in Committee about the inadequacies of some of the procedure. They have particularly improved the early parts—stage 1 of the procedure—for which I am very grateful that. I declare my interest, if I have not already done so, as chair of Consumer Focus. From the view of the subscribers and those who use digital access to copyrighted material of various forms, this appears to be a seriously draconian Bill. It seems to demonstrate a spirit that is very different from the general tone of Digital Britain and the Government’s general approach to developing the digital economy. In those, the Government are in favour of accessibility, inclusion, innovation and competition. In the Bill—in Clauses 4 to 16 and perhaps in Clause 17 as well—we go straight into what is effectively a sanctions regime which is protectionist, which will lead to exclusion if it is successful, and which is likely to alienate a significant number of consumers, particularly young consumers, of digital services for music and for other forms of digitalised copyrighted material such as sport, drama and so on. This is bad business for the rights holders and bad politics for the Government. It is not sensible to alienate a whole generation—unless you are giving an alternative. The Government have an alternative, and occasionally they talk about it. This apparently innocuous motherhood-and-apple-pie clause which I am proposing in Amendment 17 says that the Bill’s objective is not to knock on the head as many unlawful file-sharers as you can find but to shift the burden of file-sharing transactions from the unlawful market in copyright material to lawful means of access. There are lawful means of access. About half of those who admit to unlawful file-sharing also have some access to lawful forms of file-sharing. Quite well known, generalised new business models are coming on line: we have mentioned Spotify here before, but there are others. There are 20-odd quite general forms of relatively cheap, relatively accessible and relatively flexible ways of getting at most copyrighted material. It ought to be the Government’s objective in their policy to move the bulk of this market to those lawful forms of access. Instead, propaganda on the Bill from the Government, and particularly from the music industry, is about clamping down, restricting and ultimately having sanctions that are disproportionate to the offence. It would help to enhance the acceptability of this general approach among consumers and consumer organisations if the Government recognised that their objective is to move people to lawful forms of access. We would then be dealing with what should be a reducing problem. At the end of all that, there will of course still be some who engage in unlawful file-sharing. However, their number will probably be reduced provided that the lawful service is reasonably cheap and flexible. They will probably largely be people who are making significant money out of illegal file-sharing, or people who are manic, mega-serial infringers. We will still need measures to deal with them. I would have preferred a strategy from the Government that recognises that it will take time to move the bulk of these transactions into a lawful market. This strategy would recognise that serious sanctions are still needed but that they do not necessarily have to involve going through the kind of procedures that we were talking about under the present system—the threats from lawyers and court action. It would, however, deal with the residual problem. Perhaps I may underline the problem that one faces with consumers at the moment. Consumer Focus has recently conducted a small survey of people’s understanding of these matters. Three-quarters of consumers know that they do not understand what is lawful and what is unlawful. We took three transactions which are actually unlawful, one of which is copying a CD or DVD which you have bought to another format so that you have a copy in more than one location. Three-quarters of people believe that that is legal. One-quarter recognises that it might be unlawful, and 86 per cent do not believe that it should be unlawful. You get similar results on similar format shifting. With this level of ignorance of the law, and with consumers adapting to the new technology rather faster than institutions and businesses, it is not surprising that the threat of intervention—a temporary closing-down, throttling, suspension or reduction of internet connections in order to enforce that—meets with significant hostility. We should go back to a strategy that is aimed at moving everybody onto a lawful system, and which emphasises that, rather than the burden of this Bill, in which we now have 17 or 18 clauses on sanctions. It includes nothing about a lawful system, nothing about support for the creative industries and nothing about making access easier and more flexible. The Government ought to think about re-presenting the Bill and their strategy in that regard. A small step in that direction at this stage in the Bill would be to put an objectives clause at the beginning of the Bill, before going into the sanctions sections. There may be better ways of drafting this clause, and I would be delighted if the Government came up with better ways of drafting it. However, it would be a small but significant step in making their whole approach rather more palatable than it is to me at the moment. I therefore hope that the Government, if not immediately grabbing this opportunity tonight, will think that there is some merit in spelling it out here, and that there is some merit in re-presenting what they are doing. In the long run, it would be of benefit to the rights holders as well as to consumers and the Government. That is the intention of this clause, and it is pretty central to the strategy for the Bill. I beg to move.