Revealed: Proposed new powers over search results

We wrote last year, many times, about the discussions being hosted by the Department for Culture, Media and Sport between rights holders and various ‘intermediaries’ – which to normal people means companies like Internet Service Providers and search engines. One of the most recent roundtables saw the group of rights holders present search engines with a paper on how they should help tackle copyright infringement.

After two Freedom of Information requests, we have received the proposals, which you can download here.

As well as containing some dangerous ideas, the proposals help emphasise that copyright enforcement policy is suffering from a severe democratic deficit. This whole process needs rebalancing so that it is based on a sound analysis and evidence, and operates through a transparent and open process. Otherwise, just like as is happening with ACTA, DCMS are simply repeating mistakes we’ve seen so recently over SOPA and PIPA in the US.*

Here’s the summary of what the rights holders were asking for:

• Assign lower rankings to sites that repeatedly make available unlicensed content in breach of copyright
• Prioritise websites that obtain certification as a licensed site under a recognised scheme
• Stop indexing websites that are subject to court orders while establishing suitable procedures to de-index substantially infringing sites 
• Continue to improve the operation of the ‘notice and takedown’ system and ensure that search engines do not encourage consumers towards illegal sites via suggested searches; related searches and suggested sites
• Ensure that they do not support illegal sites by advertising them or placing advertising on them, or profit from infringement by selling key words associated with piracy or selling mobile applications which facilitate infringement.

There are some particularly worrying elements. First, what does ‘establishing suitable procedures to de-index substantially infringing sites’ mean in this instance, having already mentioned those subject to a court order? Is this a suggestion that there should be action outside of a court order? There is little on how search engines or the industry might classify illegal or legal sites in practice, let alone consideration of any possible market distortion or abuses. The paper is about private enforcement with little or no independent, proper oversight or due process.

The minutes from the meeting (which we posted about previously here) suggest that the search engines were not impressed, and promised to write their own proposals to be discussed at a future meeting.

Once again vague, poorly supported ideas for new powers to control the flow of information online are leading DCMS to exactly the same mistakes as were made in the US – discussions based on little or no evidence or analysis, offering few opportunities for open and transparent consultation, leading to clumsy proposals for new powers, and finally an inevitable and forceful backlash. 

The Government is currently both absenting themselves from the process (by saying: ‘we are just facilitating this discussion’) whilst simultaneously threatening to legislate. That means that, at best, the process is being driven forward by the momentum given by this promise, or threat, of legislation. It’s all speed, and no coherent direction.

We began to see movement towards openness and transparency at the tail end of last year; we were present at the previous roundtable, for example. However, we have had no indications as to whether future discussions will continue this trend towards legitimacy. We had to prise these proposals out of DCMS – even though we attended the roundtable on 15th December, it took until 30th December to be sent the proposals, at the second time of asking. 

It’s fun for us being the very unofficial long arm of DCMS’ transparency operation, but it would be easier for everyone if this kind of publication and openness was part of their approach by default.

What now?

The start of this year should be seen as a watershed moment. Millions of people told their elected representatives in the US their concerns with SOPA and PIPA, and people all around the world joined the protests. That floodgate can not be shut. And that is a real opportunity. 

DCMS now need to show some leadership and channel this debate. Their approach to enforcement policy this year needs two things. First, proper evidence and analysis of the nature of the problem we’re trying to tackle. And second, the inclusion of voices and perspectives of those who, to date, have had few opportunities to shape the direction of policy or offer their perspective. Only then will we reach any kind of agreement about a way forward. 

They need to set out how the process will work and when meetings will happen, and with who. Tell us why it’s happening by demonstrating some clear analysis and understanding of the nature of the policy issue.

This shouldn’t be difficult. It will result in a better, more inclusive and more constructive process. And it’s the only way to give a shot of democracy into the arm of copyright policy making. It badly needs it.

* There’s an excellent piece on lessons from SOPA and how to move forward, by Yochai Benkler, over at TechPresident.