Stephen Timms explains (a bit) why the government wants to change the copyright act

Following on from the story earlier today about Lord Mandelson's plans to get an amendment made to the Copyright, Designs and Patents Act (CDPA) of 1988 that would allow him - or any future secretary of state for industry - to amend it over copyright enforcement issues, I spoke to Stephen Timms, the financial secretary to the Treasury, who is also involved in the Digital Economy bill, being published on Friday at 7.30am. (The quotes that follow are from contemporaneous shorthand notes, though they may contain errors.)

He revealed that the bill "has a clause which gives the secretary of state power to amend the CDPA to prevent or reduce copyright infringement. The reason for including this in the bill is to enable government to respond to technological changes if the CDPA isn't sufficient. We think we've now got an effective way of tackling peer-to-peer but reckon that isn't all of the problem."

So the logic behind giving Mandelson - and any incoming secretary of state for business, don't forget - this power to determine any sort of change to the CDPA in the future is because there might be copyright problems in the future that the present act doesn't catch.

Is that likely, I asked? "Maybe other forms of illegality are going to be a significantly larger share of the problem. We need flexibility to keep pace with new illegal forms [of piracy/copying/filesharing]."

But isn't it dangerous to give secretaries of state powers to amend the act at will like this? "The way that this clause is formed there would be a clear requirement for full public consultation [before any change] followed by a vote in favour by both houses of Parliament."

Surely, though, public consultation doesn't necessarily mean listening to the public, and any government in power will by definition have a majority, and the Parliament Act means that votes in the Commons must eventually to be approved by the Lords. So what and where is the safeguard? "It will be very public and significant," Timms said. As to the clause itself, he emphasised that "it wouldn't amend the act itself, but will give us the power to amend it if it becomes clear in the future that it's needed."

[This alteration of the CDPA is known as a statutory instrument: read up about it at the Wikipedia article, specifically on Parliamentary (lack of) control over them - Parliament can either accept or reject such an instrument, but cannot amend it. SIs are a very common method of getting things done in Parliament because it's quick and easy. But it's not usual to do it to something as fundamental as the copyright act. Update: Phazer points out in the comments that the CDPA has been altered a number of times to bring it into line with European law and change copyright terms. True, though that's not quite the same as giving the Secretary of State abitrary powers.]

Why might that change be needed? What's not working about the CDPA at present? Surely, the provisions of the act cover illicit peer-to-peer file sharing, so what's not functioning? Record companies have sued people successfully in the courts. So what doesn't work?

"It's reflecting the fact that technology is changing very fast," said Timms. "The existing [method] is quite cumbersome. We might need something else in the future."

And what about the 'Murdoch question' - the possibility that an incoming government might change copyright law to favour, say, a big newspaper proprietor that had backed them and made angry noises about copyright?

"The best safeguard against actions of that kind is the requirement in the clause that there has to be full public consultation and there has to be a positive vote in Parliament. This would be a very, very open and public process."

But why is the government taking on powers now for which it does not have an immediate use? "We have been consulting on these problems. The fact that it's not just peer-to-peer is a point that has been raised in the consultation. That's where we took the view that we needed the ability if it becomes clear this is a big problem."

Ah, the "cyberlocker" problem referred to by Mandelson in his letter to Harriet Harman (who would have to approve the SI). This is where people upload stuff to online storage, which can only be found by giving out the URL - the storage is effectively invisible to search engines. Are they really such a problem? "It's about what could be a problem. Note that this is about civil infringement - we're not creating new offences. We won't be able to change the existing criminal offences on copyright. It's a simpler way of dealing with the problem."

What about the clause which will let the secretary of state "impose such duties, powers ...on any person as may be specified with or for the purposes of facilitating prevention of reduction of online infringement of copyright"? That's a huge power to give someone, surely? How do we know that won't get abused to create what some have called a 'militia'? "I'd draw your attention to the public consultation. It would be a very, very public process. This would be a very public process indeed. It wouldn't be possible to slip something through clandestinely. That's the biggest safeguard. People will obviously want to look at what the clause says. But it simply gives us the ability to tackle what's likely to be a growing problem."

(Clearly, the emphasis that Timms wants to give is that this isn't being done secretly. But the concern is that it's not being done accountably - that there's no way of seeing who the government is actually paying attention to.)

Perhaps I'm being dim, I said, but I can't see how these 'cyberlockers', which were cited by Mandelson in the letter to Harman, aren't already covered by the legislation. In what way aren't they already covered? "There's an analogy with peer-to-peer. Yes, there are existing laws because the approach in the bill we believe will be effective. There are systems other than peer-to-peer which are also a problem [for copyright holders]. By analogy, we want to be able to do comparable things to stop them."

But you can with cyberlockers. Or is it a problem of jurisdiction - that they're often located in other countries? "No, it's not that. The answer is the same as peer-to-peer, we need an effective way to deal with it. It's an effective answer to do this so we don't have to work out a proposal [to control copyright infringement in some new way] where we would need to develop and go through the whole process [of enacting legislation]. But we need this to be able to address parts of the problem other than peer-to-peer."

And that was the end of the conversation. If I'm honest, I still do not understand what elements of copyright law don't already include everything you can do with a computer. If you store a file onto your computer and you don't have the rights holder's permission to do so, that's infringement. If you store a file online and don't have the rights holder's permission to do so, that's infringement too, though it falls into the problem of jurisdiction - what if the servers are in the US or China or Korea? Sure, copyright is useful (necessary, in fact, for lots of businesses to function). In fact, it works very well. Music companies are seeing illicit file-sharing fall - but it's not because of the distant threat of "three strikes" or past lawsuits, it's because of services such as Spotify or We7.

We'd also like to know who is so concerned about these "cyberlockers", apart from Mandelson of course. Let us know.