End of the Peer-to-Peer Reviews

November 11, 2010

The Digital Economy Act 2010 is alive and kicking. But with everybody inquiring into its effectiveness and legality, I have to wonder if its days are numbered, at least when it comes to some of its most prominent provisions on illegal file-sharing and the like.

When BT and TalkTalk launched their application for judicial review, I commented here, in a tortured reference to the supremacy of Parliament and Diana Ross, that ‘they seemed to have engaged a lawyer with as much grasp of legal realities, and constitutional law in particular, as the allegedly flaky diva herself’. It’s not looking so flaky now. I will nevertheless be very surprised if the application is ultimately successful. (But I say this after watching last night’s edition of {i}The Apprentice{/i}, and apparently being the only person in the nation to think that the packaging for the Germ–o-nator made it stand out – in a good way.)

BT and TalkTalk might not have to worry for long even if they lose. With changes afoot at an EU level and the review of IP rights promised, their lot could be eased in the near future even if they lose on the judicial review application. Surely this new government review of IP rights cannot take long, bearing in mind that its terms of reference are so close to those of the Gowers Review completed in 2007. A quick top and tail and a new cover and that job is done – they can spend the remainder of the six months of the review on ‘fact-finding’ trips in Brazil and Australia.

The announcement of the review by the Parliamentary Committee simply irritated me – not a very constructive response I admit. It is welcome insofar as it covers an issue that is of major concern to many users and owners of IP rights online. But Parliament turned down the chance to do its job properly when the Digital Economy Bill was before it. If any involved in the great debates about file-sharing and IP rights in a new age had any respect for Parliament before that, I am pretty sure it was lost then. I know that many individual members tried to do their job properly and were undermined by Peter Mandelson and Jeremy Hunt, but their very powerlessness raises the question ‘why bother what MPs think?’ and that question is especially pertinent bearing in mind the government review that is going on at the same time.

I am left with one major question – and not just because I have to justify the awful puns in the title. When will the review process end? We need certainty in the area almost as much as we need well adapted law, and nothing undermines voluntary compliance and enforcement more effectively than the feeling that the law is uncertain and shifting. In some areas, IP rights enforcement is like trying to stamp on ants in sandy ground and those eager to comply with the law are left unsure and out of step.

I suspect that the Digital Economy Act will see large-scale amendment in 2011/12 and a reluctance to hurry through the provisions that are currently live. But I have now reached the stage where nothing would surprise me in this area.