A Letter to My MP About the Digital Economy Bill

Just sent, via WriteToThem… It rambles a bit, which may be a problem… and it’s possibly a little bit confused – but then, if I’m confused about a law and break it, that’s no defence, right? (And the great thing about this bill is that if it’s enacted, it seems to pre-enable another bit of law that hasn’t been written yet?!)

Dear Andrew Turner,

Following the passage of the Digital Economy Bill from the House of Lords to the House of Commons, I am writing to you again in order to express my concern at both the current state of the bill and, to quote the Earl of Erroll, the “unethical” way in which it is being passed into legislation (Hansard 15 Mar 2010 : Column 464 ( http://www.publications.parliament.uk/pa/ld200910/ldhansrd/text/100315-0004.htm ).

As you proudly state on your website http://www.islandmp.org: “First and foremost I am the Island’s representative at Westminster, scrutinising parliamentary bills, working to shape legislation to improve the lives of all my constituents and holding the government to account.”

Question: do you think it is right that as a member of the House of Commons, you will be limited in your ability influence the passage and content of this bill?

Question: I would like to ask you to detail the extent to which you are and/or will: a) scrutinise the bill and b) hold the government to account about the way in which it passes bills such as the Digital Economy Bill into law apparently without respect for due process.

Question: what steps will you take personally to demonstrate support for other members who are interested in scrutinising and influencing this bill, as well as those who wish to speak out about what is widely believed by industry members and and interested parties such as myself to be an example of bad (proposed) legislation?

As to the bill itself, I would like to ask you:

Question: whether you have you read it and formed an opinion about the consequences of passing into legislation the bill as currently drafted?

For example, regarding the amendment to Part 1 of the Copyright, Designs and Patents Act 1988, in particular the insertion after section 97A of:
“97B Preventing access to specified online locations for the prevention of online copyright infringement The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court for the prevention of online copyright infringement.”
my reading of this paragraph is that sites such as Youtube or flickr that encourage user contributed content under a post-moderation (takedown when informed) policy might in principle be identified as sites to whom access should be prevented. In situations where material is copyrighted and held in private, but where it may be in the public interest to share that material without permission (e.g. Wikileaks, or even accredited news sites), could the amendment be used to effectively censor sites hosting that content? If that reading is correct, do you think this (mis)use of the law as proposed is fair (i.e. using it not in the spirit it was presumably intended?)

Based on my reading of the Bill, it also appears that the Bill is drafted in such a way that a “Code” that is: i) enforceable by the terms contained within the Bill, if enacted, and that ii) can draw on provisions also drawn up within the Bill, has been proposed that has not, as yet, been written (and may not be…). That is:

‘After section 124C of the Communications Act 2003 insert—

“124D Initial obligations code by OFCOM in the absence of an approved code

(1) For any period when sections 124A and 124B are in force but for which there is no approved initial obligations code under section 124C, OFCOM must by order make a code for the purpose of regulating the initial obligations.

(2) OFCOM may but need not make a code under subsection (1) for a time before the end of—

(a) the period of six months beginning with the day on which sections 124A and 124B come into force, or
(b) such longer period as the Secretary of State may specify by notice to OFCOM.

(3) The Secretary of State may give a notice under subsection (2)(b) only if it appears to the Secretary of State that it is not practicable for OFCOM to make a code with effect from the end of the period mentioned in subsection (2)(a) or any longer period for the time being specified under subsection (2)(b).

(4) A code under this section may do any of the things mentioned in section 124C(3) to (5).

(5) A code under this section may also—

(a) confer jurisdiction with respect to any matter (other than jurisdiction to determine appeals by subscribers) on OFCOM themselves;
(b) provide for OFCOM, in exercising such jurisdiction, to make awards of compensation, to direct the reimbursement of costs, or to do both;
(c) provide for OFCOM to enforce, or to participate in the enforcement of, any awards or directions made under the code;
(d) make other provision for the enforcement of such awards and directions;
(e) establish a body corporate, with the capacity to make its own rules and establish its own procedures, for the purpose of determining subscriber appeals;
(f) provide for a person with the function of determining subscriber appeals to enforce, or to participate in the enforcement of, any awards or directions made by the person;
(g) make other provision for the enforcement of such awards and directions; and
(h) make other provision for the purpose of regulating the initial obligations.” ‘

Whilst I am not legally trained, my reading of this section, and the one shown below regarding what the Secretary of State (who may be anybody by the time the law, if passed, comes into force…) may or may not ask an unelected body (i.e. OFCOM) to do what can be summarised along the lines of “we might ask OFCOM to make up a legally enforceable code using some or all of the bits of some laws we’ve just made up; or not; whatever…”

Question: How would you summarise: a) the intent of the passages quoted immediately above and below? b) justify the passage of the legislation as stated bearing in mind your role as my representative at Westminster, with a “first and foremost” role for scrutinising parliamentary bills on the behalf of constituents such as myself?

’10 Obligations to limit internet access: assessment and preparation
After section 124F of the Communications Act 2003 insert—
“124G Obligations to limit internet access: assessment and preparation
(1) The Secretary of State may direct OFCOM to—
(a) assess whether one or more technical obligations should be imposed on internet service providers;
(b) take steps to prepare for the obligations;” ‘

I look forward to hearing your response, in particular your answers to the questions that I have specifically identified as such.

Yours sincerely,

Tony Hirst

PS here’s the response @liamgh got from his MP: A reply from my MP about the Digital Economy Bill. If you’ve written to your MP on this matter, and received a reply, why not post it somewhere and add a link to a comment below? Or just paste the response into a comment to this post…. not that the MPs are likely to be sharing answers or anything…;-)

PPS this all reminds me about Nomic, which I seem to remember I tried to recast into a Digg like game I called Nomigg… Hmmm… would be good to revisit that one day…

UPDATE (19-20/3/10): I had a holding letter response saying that Andrew Turner was looking into the matter. I just replied with an additional question:

Thanks for getting back to me to let me know that Mr Turner is looking
into matters raised in my letter regarding the Digital Economy Bill
and the way in which it is being rushed through the House of Commons.
I wonder if I could add another question to the ones raised in my
letter, specifically:
Question: is Mr Turner aware of the Open Letter regarding the way in
which the passage of the Bill is handled ( http://www.guardian.co.uk/technology/2010/mar/19/digital-britain-file-sharing ) and does he intend to add his name to it or otherwise express
support for it?

Bits and Pieces Around OERs…

Some bits and pieces of the jigsaw that may or may not relate to a bid I’m trying to write… it’s a core dump of base/basic principles and assumptions that I may or may not believe, to see whether or not any of them actually make sense…

– from a tweet a few weeks ago: OERs as “openly licensed resources that educators can reuse in teaching, or that learners can independently discover and learn from”

– an untested suspicion that OERs (whatever they are) are often produced under the tacit assumption that if they are to be reused, they will be selected by an educator and reused in a formal educational setting, or will be discovered (in some magical way) within an OER repository and reused by a student in a formal educational setting.

– a utilitarian view that open educational resources are just resources. That if you can find them, are willing make use of them, and can actually make use of them at least in part how you want to (which may include repurposing them, editing them, etc etc), they are to all intents “open” to you; and that they are educational if they help someone learn something or how to do something (e.g. so that if someone comes to a resource not knowing something, or not knowing how to do something, and after engaging with the resource they do know the something, or how to do it, without having to refer back to the resource, then they’ve learned something about the something…)

– a belief that a resource that can be open and educational (as described above) might also be trivial: a flashcard containing a picture of a dog and the word dog next to it, for example.

– a belief that an OER is only useable or reusable if it fits into someone else’s educational process (someone wanting to know how to do a thing, finds a resource, and ends up learning something about the thing; or a teacher trying to help someone else learn something.)

– an observation that academics often make a distinction between a “proper” academic education, and training (so you know how to design a car from first principles, but have no idea how to actually bend pieces of metal to make one, or even how to drive one;-) (Hmmm: try this: academic education helps you to make distinctions, ask questions, and find alternative ways of doing the same thing; it provides you with (cognitive) tools for abstracting out elements of a problem and solving that problem. Training maybe just shows you a single way of addressing a particular problem in a practical way?)

– a recollection of thoughts from when I last spent some time thinking about the “uncourse” model I used to draft materials for the OU Digital Worlds course: that courses typically have a single linear narrative that is determined prior to the start of the course; that the uncourse had a linear narrative only in the sense that it documented a set of topic explorations by means of a series of blog posts that were posted in serial/linear time as and when I wrote them that documented my (learning) journey through the topic; but that by the use of link structure, multiple other (linear) narratives could be woven through the network of resources that my linear sequence of posts left behind, or linked to themselves; that “self-containment” is often viewed as plus in the production of OERs, so they operate as standalone resources; but that by embedding resources in a network of other resources you potentially make them discoverable through those connected resources, and also provide context derived from those connected resources and the way they are connected; that one model for uncourse blog posts was a template that included: a question, a set of linked resources, and an example answer to the question or reflection on the linked to resources. That the resource might contain both “academic” and “training” components, that could help someone solve a practical problem (the training element) yet also referred to abstractions and reflections contextually relevant to the training element (the academic component). That as such, the resource: a) was appropriate for someone discovering the resource via a “how do I?” search query (the training bit); b) that the resource contained a contextualised example (the training bit) that could be reused by another educator or picked up on by a user who originally arrived looking for an answer to a how-do-I question; c) that the resource contained a contextualisation container (the academic bit) that could be reused by another educator with their own training component; that the uncourse produced resources that were primarily part of the web and could freely be discovered on a post-by-post basis via web search engines by users searching for appropriate terms. That the uncourse resources were not made discoverable (hah!) by virtue of being placed in siloed OER repositories, but were gifted into the web via a public website (a hosted wordpress.com blog) that made no claims about having academic authority or provenance.

Maybe related: @ambrouk’s Connecting people through open content and @kavubob’s Public funding, OER, and Academics – a brief reflection and An OER manifesto in twenty minutes

PS This post was written whilst trying to write a JISC OER3 bid, struggling to find the words and phrasing required to clarify the jumble of thoughts relating to what I (think I’m) bidding, for, and already suspecting that I’ve left it too late to get the signatures/sign-offs and accounting stuff done in time (needless to say, folk are on holiday, and OU deadline is a week before the JISC submission deadline)… Plus the fact the bid still isn’t written and the bits that are pretty weak:-( Sigh… I guess that makes this post a displacement activity, albeit one I thought might help with the bid (it hasn’t:-(. Needs must though – as we’re moving from being publicly funded to being funded by paying customers, I suspect the “public service because I’m publicly funded” argument I use to stave off the guilt and try to justify my activities (to myself at least) won’t work past October 2012, if even until then:-( Marketisation of HE is really going to mess things up, methinks:-(