Further to my earlier posts I have come home to a letter from Michael Fallon MP (his ears must have been burning) – nice to see that he has taken it on himself to keep me abreast of developments.

Dear Michael Cockeram (sic),

Digital Economy Bill

Thank you for contacting me about this important Bill.

Labour left it disgracefully late to bring this Bill to the Commons, and they are now rushing it through in two days – normally a Bill of this importance would be scrutinised in detail for two months.

Faced with this, our shadow Culture Secretary, Jeremy Hunt, has set out the Conservative position. Because we hope to form the next government, I thought you would like to have as much detail as possible, so I am enclosing copies of his speech and of his letter to fellow MPs.

With all best wishes,

Sincerely,

Michael Fallon

From the tone of the letter you could be forgiven for thinking that there was an election in the offing! In all seriousness though, given the degree to which this Bill has caused alarm in the photographic community here and abroad, I thought it was worth sharing these items with you, as well as some thoughts that arise from them.

Firstly, Jeremy Hunt’s letter to his fellow MPs:

Dear Colleague,

I know that a great many of you have been contacted about the Digital Economy Bill. I wanted to get in touch to set out our position on a number of its different aspects as I realise many of them are controversial.

Firstly I share a number of concerns about the constitutional aspects of rushing this Bill through in wash up. It is deeply regrettable that the Government was unable to prioritise Parliamentary time in the House of Commons. It says a great deal about their support for the creative industries that despite considering many of these issues as far back as 2006 they have only now just brought this piece of legislation forward.

Despite these concerns there are a number of very important aspects of this Bill that are needed as soon as possible. Online piracy is a rapidly growing problem for our creative industries and one that we need to tackle. The measures within the Bill designed to block access to websites promoting illegal downloading and tackle illegal peer to peer file sharing set up a relatively weak regime that could, following repeated warnings and due process, lead to people having their internet connection temporarily suspended. It will not, as many have suggested, lead to people being disconnected without an appeal. Even if people are disconnected they will be able to sign up to another ISP immediately without penalty.

Blocking these measures in their entirety would have risked hundreds of thousands of jobs in the TV, film, music and sports industries and therefore not something we are willing to do. However the substantive point to make to your constituents is that widespread concern over these measures would have been assuaged if a committee stage had been allowed for the Bill prior to wsh up. I have no doubt such scrutiny would have improved these measures, a point I made strongly in this afternoon’s debate on the Bill.

There are a number of other aspects of the Bill that we do not find acceptable and we will be doing all we can to remove these during the wash up process. Clause 1 adds an unnecessary duty to the regulator Ofcom which will make little difference to the way they operate. Clause 29 will prop up regional news with tax payer subsidy when we should be looking at long term financially sustainable measures to support local news. Finally, clause 43  tries to create a system that would unlock a large amount of digital content primarily held by the BBC and the British Library whose ownership is unknown. Unfortunately this has been drafted so badly that many rights holders would find their content automatically defined as an orphan work – as such they would lose control over their content. We cannot support these provisions but will return to this issue after the General Election.

I am very happy to discuss any of these issues should you find it helpful.

Yours sincerely,

Jeremy Hunt

Shadow Secretary of State for Culture, Media and Sport

The key point to note from Mr Hunt’s letter is that they are not against the premise that gave birth to clause 43, only that it was so badly drafted it would create unacceptable problems for people creating content now. Indeed, in his speech during the debate, and in response to a question posed by Dr Julian Lewis (Conservative MP for  New Forest East), Mr Hunt said, “We would like to support the objectives of [clause 43] on orphan works, but unintended consequences occur unless the wording is right.”

On one level photographers should find his statement reassuring, assuming that the Tories find themselves in power in a month’s time. However, when taken with two other statements he made, I suspect we may not be out of the woods yet.

The first is when he said, “We are stating categorically that we reserve the right to review anything that becomes law as a result of the wash-up, if we win the next election, and we will indeed review it if it turns out that the legislation is flawed. … Legislation is urgently needed to protect jobs, and their competitive position. It has taken this Government 13 years to bring these issue before the House, and the industries are worried that if the whole thing is killed now, they might have to wait a very long time…”

The second statement, a little further on: “We agree with the Secretary of State about the critical importance of the digital and creative industries – the largest independent television production sector in the world, the second largest music exporter in the world and,… the third largest film and video games industries in the world. When we desperately need to rebuild a broken economy in proven areas of British competitive advantage, what way is this to treat those industries?”

The question that naturally arises from this position is if Her Majesty’s Opposition is of the opinion that this legislation is so vital in principle, that the industries it affects are so strategically important to the UK economy as a whole, and that the Bill as presented by the government is so fundamentally flawed, why did they not opt to block its passage and commit to introduce a suitable replacement for proper considered debate and detailed committee analysis immediately after the election once they had assumed the reigns of power? If the industries affected have been waiting 13 years for legislative help, surely another six months to get the legislation right is not unthinkable.

It seems reasonable to suppose that they are merely paying lip service to the importance of the legislation and the industries it affects and that they would not find it that urgent a problem to address after the election, although I could be charitable and suggest that they recognise the fickle nature of the electorate and did not want to chance the possibility of not being returned to office and Labour just ignoring the issue altogether if the Bill were blocked at this stage.

In truth, I suspect the former is more likely, in which case one wonders what the impact on the creative industries will be when the new Secretary of State starts to pick over the flawed legislation and try to make the proverbial silk purse. He has already gone on record saying that the idea of clause 43 is laudable, but has given no indication as to how a Conservative government might address the considerable problems it might cause for working photographers. And if their approach is that bad legislation is better than no legislation, it does not bode well for an easy few years ahead as we try to protect what remains of an industry that some already consider to be in crisis.