Lord Mandelson is the UK minister for Business Innovation and Skills which includes the digital infrastructure remit. He recently announced that a version of the “three strikes” approach to combatting illegal firesharing, with the sanction being removal of internet access, would be applied in the UK. This is a copy of a letter I have sent to Lord Mandelson via the wonderful site www.writetothem.com that provides an easy way to write to UK parliamentarians. If you have an interest in the issue I suggest you do the same.

Lord Mandelson

House of Lords

Palace of Westminster

4 September 2009

Dear Lord Mandelson

I am writing to protest the decision taken by yourself to impose a “three strikes” approach to online rights and monopoly violations with an ultimate sanction requiring service providers to remove internet access. I am not a UK citizen but have lived in the UK for ten years and regard it as my home. I have a direct interest in the use of new technologies for communication, particularly in scientific research, and a vested interest in the long term competitiveness of the UK and its ability to support continued innovation in this area.

Your decision is wrong. Not because copyright violation should be allowed or respected and not because the main stream content industry should be ashamed that it makes money. It is wrong because it will stifle the development of new forms of creativity and the development of entirely new industries. As an advocate of Open Access scientific publication and copyright reform I am critical of the the current system of rights and monopolies but I work hard to respect the rights of content producers. And it is very hard work. Even as someone with some expertise in copyright and licensing, to do this right, requires time and effort. When I write, or prepare presentations, I spend significant amounts of time identifying work I can re-use, checking that licences are compatible, and making sure I license my own derivative work in a way that respects the rights of those people  whose work I have built on.

New forms of creativity are developing that re-use and re-purpose existing content but in fact this is not new at all. Re-use and re-purposing in culture has a grand tradition from Homer, via Don Quixote to Romeo and Juliet, from Brahms’ Haydn variations to Hendrix’s version of the Star Spangled Banner. In my own field all science and technology is derivative. It builds constantly on the work of others. But the internet makes new forms of re-use possible. New types of value creation are also made possible.  Re-use of images, video, and text, as well as ideas and data are enabling the development of new forms of business, new types of innovation in ways that are very challenging to predict. Your proposal will stifle this innovation by creating an environment of fear around re-use and by privileging certain classes and types of content and producer over the generators of new and innovative products. Those who do not care will ignore and circumvent the rules by technical means. And those who are exploring new types of derivative work, new types of innovative content, will be discouraged by the atmosphere of fear and uncertainty created by your policy.

Nonetheless it is important that the rights of content producers are respected. The key is finding the right balance between the needs to existing industries and individuals involved in the creation of new content and new industries. I would suggest that the key to any protection mechanism is parity. Large and traditional content producers, if given additional rights over those currently provided by law, must also respect equivalent rights for the small and new media producer.

This can be simply achieved by providing a similar three strikes mechanisms for traditional media. Thus if a television broadcaster uses, without appropriate attributions or licensing, video, images, or text taken by an individual then they should have their broadcast licence revoked. Similarly if print media utilise text from bloggers or Wikipedia without appropriate licensing or attribution, then the rights holders should be able to revoke their paper supply. Paper suppliers to the print media would be required to implement systems to enable online authors to register complaints and would be responsible for imposing these sanctions.

Clearly such a system is farcical, creating a nightmare of bureaucracy and heavy handed sanctions that stifle experimentation and economic activity. Yet it is analogous to what you have proposed. Only you are imposing this to protect a mature set of industries with no real long term growth potential while stifling the potential of a whole new class of industries and innovation with massive growth potential over the next few decades.

Your proposal is wrong for purely economic reasons. It is wrong because it will stifle a major opportunity for economic growth right at the point where we need it most. And it is wrong because as a government your role is not to legislate to protect business models but to regulate in a way that balances the risks of damage in one sector against the potential for encouraging new sectors to develop. I respectfully suggest that you have got that balance wrong.  I disagreed with much in Lord Carter’s report but perhaps the best measure of its balance was the equally vociferous criticism it received from both sides of the debate. This to me suggests that it forms a productive basis on which to move forward.

Yours sincerely

Cameron Neylon