Moussa Clarke

Dear Ms. McCarthy

I just spoke to your secretary who suggested I email you about this, since I believe the Digital Economy Bill is getting a second reading today.

I have recently become one of your constituents, after moving from London. I am very concerned that the Digital Economy Bill is being rushed through Parliament without proper scrutiny and that it will give sweeping powers to the government that haven’t been properly debated.

I have a personal interest in Copyright legislation, since I currently work in the music industry, and I feel that this bill is wrong in many ways, not least because it seems to have been created at the behest of industry lobby groups, rather than considering the general public interest.

It ignores and misunderstands the new digital reality, and attempts to prop up an outdated [...] business model with ill-conceived protectionist measures. More worryingly, it has the potential to help the UK lag further behind in the internet age – it is ill-informed, anti-consumer, potentially harmful to free speech, and ultimately will not help the entertainment industry at all in the long term.

I am a long-time Labour supporter, but I don’t feel I could support a party that fails to understand the modern age, and worse, appears to hurry through bills without scrutiny when pressured by powerful and monied corporate lobbyists. I voted for Labour, not the BPI.

Please could you let me know your own position on this? Regardless of the eventual outcome, I and I think many others would appreciate it, if you could at least demand that this receives proper debate and scrutiny, rather than being pushed through in a hurry at the end of parliament.

Thank you very much for your time.

Kind Regards
Moussa Clarke

Dear Moussa

Thank you for contacting me about the Digital Economy Bill, and welcome to Bristol! Please note that, now Parliament has been dissolved, I am not able to reply to you using my Parliamentary email account.

You will not be surprised to learn that I have received several emails on this topic in recent weeks and I appreciate why people will be concerned that its process through the Commons had to be completed during wash-up, in which the Government and Opposition agree how to conclude business before Parliament is dissolved. This meant, though, that there was the necessary degree of cross-party consensus, and the general view across Parliament was that illegal online copyright infringement is a serious problem for our creative industries. The debates rightly focused on how this can be tackled most effectively, and of course, very strong views on both sides of the argument were expressed in the Commons.

The Bill was ultimately passed by 189 votes to 47. It is certainly disappointing that there was not more time for debate within the chamber. This is in part, however, because the Bill was so extensively scrutinised in the House of Lords, and indeed significantly amended with further safeguards. While it is regrettable that we ran out of time for more detailed scrutiny in the Commons, I think the considerable debate we have had outside Parliament has been a positive addition and given MPs significant food for thought. We also had significant scrutiny and consultation of the Digital Britain white paper.

I have tried to attend a number of events over the past few months to hear both sides of an admittedly complex debate, and have certainly appreciated the information I have received through the many emails from constituents, comments on my Blog and from the people contacting me on Twitter. This has informed my discussions with colleagues and Ministers about the controversial measures in the Bill, but I could not vote last Wednesday as I was one of the duty tellers.

Although the Bill included many widely supported and much-needed measures, I share some of the concerns that have been raised with me about some clauses, not least the potential to disconnect; undoubtedly this should only be used as an absolute last resort if, firstly, the warnings and advice are not heeded, and subsequently the less stringent technical measures are ineffective.

Before Wednesday, I had received assurances that only the uncontroversial would go through. As it turned out, this was not entirely the case, although some such as Clause 43, were dropped. Additional amendments were introduced though, and further regulations will now be required before the technical measures can be used, or a copyright owner can apply to the courts to block a website. Very importantly, these Commons amendments will require further public consultation and greater parliamentary scrutiny before the regulations can be introduced.

Personally, I am keen to see musicians’ livelihoods protected, but it is troubling that the positions, generally, of the music industry and internet providers/users are currently so polarised, and I would certainly support greater negotiation between the two. I have spoken with Stephen Timms, the Minister for Digital Britain, since the vote and he agreed that this would be a more positive way forward. I hope to be in a position after the election to discuss with him further how the Bill will be implemented to ensure the sanctions are only used where absolutely necessary.

Similarly, I have received an email from my colleague, Eric Joyce, inviting returned MPs to a meeting at the House of Commons in the first week of the new Parliament to discuss how to make changes to the Act to ensure it is appropriately implemented and takes account of reservations raised by both sides of the argument. If re-elected, I do plan to attend this.

In particular, I have promised to look into concerns raised with me by Watershed, amongst others, about the implications of the law for cafes offering free wi-fi access. It would be entirely wrong if they were penalised, or felt they had to withdraw the facility because of provisions in the Act.

Thank you for taking the time to contact me with your thoughts on the Bill; while I appreciate you may still disagree with some of its measures, I hope you may be reassured that it has been subject to much more deliberation than last week’s debates in the Commons, and will still be in the months to come to ensure it is appropriately implemented, on which we must now focus.

Yours sincerely
Kerry McCarthy

Thank you for taking the time to reply to me at length, and thank you for the welcome to Bristol. I am definitely enjoying life here!

I’m sure you’ve heard these points made by other people, but while I have your attention, I might as well add my voice. Apologies in advance for length

MY PERSONAL EXPERIENCE
As a music industry creative myself, I very much appreciate your commitment to the creative industries in the online environment, but I would say we need to be very careful with language. For example, the terms “music industry”, “record industry” and “musicians” are not interchangeable, and their business issues are not identical. This bill seems to me to be primarily designed to protect a certain subset of the record industry, i.e. the major labels, but I’m not sure it really helps any other stakeholders, except insofar as they align themselves with the record industry’s ailing business model.

I am an independent record producer, DJ, and also do some digital marketing consultancy work. I also used to work for large record labels, so I understand the arguments from quite a few perspectives.

The recording side of my business already forms a much smaller part of my turnover than it used to – I’m resigned to that fact, I see it as an inevitable result of an internet-enabled world – but it’s this same internet world thats has reduced my marketing expenses, globalised my business like never before, increased my publishing and PRS revenue, and enabled me to find new ways of making money within the music industry. And this is without even going into the huge cultural, social and educational benefits that the internet provides outside of my business.

So far from being a terrible threat to my creative business, its net effect on my income has been pretty much neutral. Boring, I know. Yes, my business model has had to evolve, but that’s not been a particular problem. In fact it’s been very interesting to try to rise to the challenge.

[...]

THE BILL AND ITS PASSAGE
Regarding the bill and its passage through parliament, there are many issues that have been endlessly rehashed online: Was the bill properly debated? Were lobbyists’ claims adequately critiqued rather than just taken at face value? Was there sufficient expertise in parliament to properly debate the issues? Is the resultant bill even enforceable?

I do appreciate that the bill was debated at least in its initial stages, however it still seems strange to me and to many other people that something of this complexity was hurried through wash-up in 2 hours, and forced through with a 3-line whip, when it would normally have been debated for much much longer. Surely it would have made sense to wait until the next session of parliament? Surely the long debate in the Lords that you mention should have been a signal that this needed lengthier debate when it went back to the Commons?  While I don’t claim to understand the ins and outs of the parliamentary process, I am led to understand that it was pretty much without precedent that something so complex was passed through wash-up. Why was this?

You say it “had to be” this way – but it’s my understanding that this was a decision taken by Harriet Harman’s office, not that this was an inevitability. The country is now left with a highly unsatisfactory and contentious bill having been passed, and while I appreciate the law will be further knocked into shape when parliament returns, why was it so necessary to rush something so flawed through in the first place? It seems that the Labour Party (I dont include Tom Watson, Fiona McTaggart and others who defied the bill, they are now bona fide geek heroes) is now left with a very vocal horde of liberal-minded digirati, outraged at the apparent lack of scrutiny, many of whom where possibly previously sympathetic (or at least apathetic!) to Labour, and who are now effectively campaigning against them online ahead of the coming general election. Whoops.

I watched the second reading and the wash-up “debate” with great interest (it’s the first time I have sat in front of BBC parliament coverage for any length of time!) and I was struck by the lack of expertise on display. While I appreciate that MPs can’t be masters of all trades, I would at least have thought that the “Minister For Digital Britain” might have been familiar with basic digital terms and practices. Sadly that didn’t seem to be the case. The fact that someone like John Redwood, who I personally find politically odious in almost all other respects, was one of the few making perfect sense on the subject was also rather troubling. Intelligent comment seemed to be the preserve of those who were against the bill – again Tom Watson, Fiona McTaggart, Eric Joyce et al. I don’t say this only because I agree with them, but also because they seemed to be the only ones present who actually “get” what the internet is about, rather than merely repeating the record industry lobbyists’ dubious claims without subjecting them to any kind of analysis. The whole debacle would have been funny, were there not such worrying ineptitude on display. It also smacked of cynicism. There’s a tweet from the night that sums the feeling up very well:  ”A whole generation just lost all faith in modern politics in the space of 24 hours. Well done guys, well done.”

THE MUSIC INDUSTRY VS THE RECORD INDUSTRY
Music is an intrinsic part of human nature and our culture, there will always be demand for it, and that demand will always be exploited commercially in a capitalist world. The Music Industry covers a whole range of businesses and activities from performing music, sound engineering, to marketing and selling music, music publishing, record labels, radios, nightclubs, producing music for TV, film, advertising, and many, many other interconnected fields.

To say that the “music industry” is in trouble is inaccurate. It’s the “record industry” we’re talking about here. While the BPI figures have historically been rather spurious (See for example http://www.guardian.co.uk/news/datablog/2009/jun/09/games-dvd-music-downloads-piracy), it would be difficult to dispute that the record industry is suffering because of the advent of the internet.

Although I think this suffering is inevitable, since as I will argue below their business model is on its last legs. But conversely, organisations like the Performing Rights Society (PRS), which collects income from Radio and other sources, seem to be taking in record revenues, and largely as a result of online income – and certainly their artists (including me) are benefiting from this financially. (See http://news.bbc.co.uk/1/hi/business/8567099.stm) The live music industry is also currently in great shape.

So let’s stop pretending that the music industry as a whole is in the doldrums – it isn’t. There is some market restructuring happening, but it’s not going anywhere soon.

Clearly a paradigm shift has occurred that the record industry (for self-preservation reasons) want to try to combat. It’s worth taking a look at the origins of the record industry, to give us an insight into why it’s in the pickle it’s in now.

A LITTLE HISTORY
I know this is a rather philosophical point, but the recording industry business model only exists originally because of what was at the time a new technology – the phonograph. The industry was made possible because physical media have built-in scarcity, i.e. they were difficult to copy. The phonograph cylinder was later joined by other types of physical music media, including Shellac Discs, Vinyl Discs, the cassette, the CD, the minidisc, the DAT etc etc – all with varying levels of success, and each affecting and finding their niche within the music media ecosystem in their own way. Later media (cassettes, CDRs, etc) became gradually easier for the layman to copy. Those physical media are now (almost) obsolete, and the new digital-only media such as mp3s have entirely different market dynamics. They are not physical, and easily copied/shared without any cost to either producer or consumer via the internet. You can’t impose any artificial scarcity on them to prop up the old business model via technical restrictions, at least not for long, because the internet community will always find a way to circumvent it, and these methods will be shared online as quickly as the copyrighted material is. Add into that differing legislative attitudes to copyright throughout the world and it amounts to one gigantic and futile game of whack-a-mole for the copyright enforcers. No amount of protectionist legislation will change that in the long term, unless you really want to have internet restrictions on the scale of China’s in place (I hope you don’t)

Let’s look at history again, this time at some of the industry panic that greeted gramophone records, radio and the humble cassette.

When records first appeared, the music industry was up in arms because they thought no-one would buy sheet music anymore. Why would they when they could hear it on their gramophones? It was true at first, and music publishers (companies originally set up to sell sheet music) thought they would die out, but eventually income from licensing the music for record sales was enough to sustain them. The music publishing industry changed its business model, and a whole new subset of the music industry was created – the recording industry.

When radio first appeared, the music industry was up in arms because they thought no-one would buy records anymore. Whey would they when they could listen to them on the radio? It didn’t – radio actually drove record sales. Additionally, the music industry made a deal with the radio stations and collection societies such as the PRS collected money from them – this created another revenue stream for artists and publishers (I’ll come back to this point later).

When cassettes gained popularity, the music industry was terrified that home taping would kill music. It didn’t, and music is still alive and well. Dan Bull has parodied this brilliantly on Youtube: http://www.youtube.com/watch?v=R3jkUhG68wY

And so on… Every industry has these worries when a potentially disruptive technology comes along, and I’m sure some companies would love to be able to legislate against anything new ever happening – every saddle-maker up and down the country must have been worried about their livelihood when automobiles became popular and threatened the horse & cart industry. (I’ve taken this image from an article I read online, can’t remember exactly where!)

It seems to me that the major labels have made some major business blunders in the last couple of decades which haven’t helped their situation – hind sight is a wonderful thing, but there are some things they could have avoided doing, which many pundits pointed out at the time, and which might at least have slowed down the uptake of free file-sharing – for example not agreeing digital standards early enough, trying to enforce unpopular restrictive DRM, and other failures. Their intense lobbying for this bill shows how desperate they are, but a lot of people can’t help feeling they didn’t do much to help themselves, and that they probably got a lot of bad advice from lawyers and tech companies only too willing to take their dollars throughout the last couple of decades.

And European governments are now legislating to try to protect their sclerotic business model – for example Hadopi in France, recent legal activity in Sweden, and now the UK’s Digital Economy Bill.

A BAD LAW

This law seems to be the latest in a long line of measures that treat consumers like idiots (or worse, potential “criminals” [...]). I know that the recording industry and the BPI are potentially fighting for survival, [...] but why do they seem to be aiming all their fire at music fans? They are alienating their main consumers, the people who actually support their industry – with everybody’s civil liberties as unfortunate collateral damage. Strange tactic.

This is irrespective of the privacy, legal, technical and moral issues which the bill itself brings up.

[...]

I’m also concerned about the knock-on effects the bill could have: suppressing sites like Wikileaks which could in theory fall foul of the bill as it currently stands (and it’s not good enough for government just to say “oh but we wouldn’t do that”), stifling competitiveness and innovation in the digital economy, and by default all businesses which rely on digital technology and the internet (i.e. pretty much all businesses!), making the uk look more backward and less dynamic and lagging even further behind other parts of the world in the tech stakes, reducing public wifi access, and potentially depriving families of what is now an essential utility and right (especially those not tech-savvy enough to google “VPN”)

It seems quite a hard sell to persuade people that a couple of crumbling international record companies’ supposed “rights” to sell us mp3s trump our rights to privacy, free speech, internet access, and our future economic competitiveness.

It’s entirely the wrong approach. You say you will be trying to knock this law into shape, but you’re starting from a very low base.

SOLUTIONS:
So what about solutions for the online “problem” if we can call it that? And what about the “carrots” for music fans rather than beating their internet connections with a big ill-thought out “stick”?

Well at one end of the scale, people already know what some of their business solutions are. Diversification, selling merchandising, concentrating on live income and treating recordings as promotion (http://www.longtail.com/the_long_tail/2007/01/give_away_the_m.html), the honesty box sales model (see Radiohead - http://www.wired.com/entertainment/music/magazine/16-01/ff_yorke), deals with advertising brands, and many other potential income streams which already exist or are emerging now – all of these are valid, but don’t provide a one-size fits all – it largely depends on the artist.

I don’t think mp3 stores necessarily provide a long-term solution, although offerings can work quite well depending on price and the consumer experience. Itunes is a model that works, at least for now, mainly because of the hardware lock-in with the Ipod and Iphone. [...] What might be needed outside of Apple’s offering is a cheap and convenient enough alternative to free downloading – and I don’t think that currently exists on a large enough scale – or with enough choice of material to rival a simple Google search (unless Google starts an mp3 store integrated into search, now that would be an idea – the beginnings of it already exist – http://www.wired.com/epicenter/2009/10/google-closes-the-loop-on-music-search/). However free will always trump nearly free for a lot of people, so it has to be accepted that we will never have a situation where all fans will buy via these sources.

To me the most sensible and possibly the only workable option borrows from the kind of deal that the collection societies made with radio many years ago: Blanket licensing ISPs to distribute music and other media. I would think that an organisation like the PRS/MCPS alliance or PPL would be best-placed to administer this revenue since they already do this with radio, or maybe a new society should be set up. Money could be allocated to artists or their publishers via per-download/stream accounting where it could be traced, and where it can’t would go into a pot to be distributed via a Nielsen type ratings system. The financial burden would still ultimately be on consumers (via the ISPs), but this would seem to me to be a much fairer way and less contentious way of achieving the same aim – i.e. getting consumers to pay for access to music. I believe something like this was even suggested at the committee stage, and it’s not entirely clear why this advice was ignored. There is more info on this idea all over the web, and I’m sure you’re already familiar with it, but here are some examples:
http://www.boingboing.net/2008/04/03/how-an-isp-musiclice.html
http://www.intelligencecentre.net/2010/03/16/could-blanket-licensing-for-isps-be-the-solution-to-file-sharing/

This last idea wouldn’t save the major record labels, and might even accelerate their decline since they could easily become irrelevant in this new music business ecosystem – so by definition it would not be championed by BPI lobbyists since it might put them out of a job – but as I’ve argued their current business model is very nearly at its natural end anyway, since the physical media which enabled it are obsolete – maybe they will slowly go the way of the saddlemakers, or eventually be absorbed into music publishing or artist/event management where there is still money to be made (this is already pretty much the case with smaller independents). And that… is just fine, I don’t really see any compelling economic or moral argument for rescuing their current business model.

CONCLUSION:
It was good while it lasted, but this awful law won’t bring back the good old days. Music as both culture and industry, with the internet as one of its major promotional forces, is definitely here to stay whether the record industry survives or not in its present state, and whether daft illiberal laws like this one get passed or not. Regarding the bill, the overwhelming worry of many of my online peers is that we now have a potentially terrible law in place, and that parliament as a whole does not have the will to solve this situation, maybe because some of its more powerful members have decided to prioritise the recording industry lobbyists’ outdated and self-serving views over those of all other stakeholders, including the general public’s, and maybe because it doesn’t sufficiently understand the new internet paradigm nor its technology. Certainly the parliamentary processes that so many watched online didn’t do anything to dispel these worries, in fact quite the opposite. Not a good starting point.

I hope you prove them wrong, and I for one think it’s better to look to the future of the music business, rather than to pine for the gramophone!

Sorry for length, this has turned into a bit of an essay, but I hope I’ve managed to make some valid points that you might consider in your future deliberations.

As for where my vote will go in the general election, I am still undecided, but I am very impressed indeed by you taking the time to respond to me, and sincerely wish you all the best in the coming weeks

PS: Would you mind if I published our correspondence online?

Kind Regards
Moussa Clarke