A text transcription follows.
This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome to OUT-LAW Radio, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.
My name is Matthew Magee, and this week we return to the ever-controversial Digital Economy Bill and speak to one peer who says that the law needs to do more to try to keep up with digital developments and not allow industry to, as he puts it, persecute individuals.
But first, here are some of the top stories from OUT-LAW.COM, where you can read breaking technology law news throughout the week.
Data fines to reach half a million pounds
and
Google threatens China pull-out.
Organisations responsible for major breaches of personal information security will face fines up to £500,000 from 6th April this year. The long-awaited penalties for serious data protection breaches have been approved by the Government.
The Information Commissioner's Office has campaigned for a number of years for increased powers to enforce the Data Protection Act. As well as increased fines it has asked the Government to introduce jail terms for those who trade in personal information.
A consultation on jail terms closed last week and the Government is still considering what action to take, an ICO spokeswoman said.
The ICO said that it would assess breaches according to various criteria including the financial resources of the organisation when deciding whether or not to impose the full £500,000 penalty.
Google has said that it will stop doing business in China unless it can operate without government-imposed censorship. The announcement follows hacks of Google's systems that it said were intended to snoop on the e mail accounts of human rights activists.
A Google statement said that when launching Chinese service Google.cn in 2006 it accepted government censorship of the results it could display, but that it now was 'no longer willing to continue censoring our results on Google.cn'.
Many companies have faced criticism for operating in tandem with the Chinese government, whose censorship, use of the death penalty and interference in the judicial system are frequently criticised by humans rights organisations.
Google has struggled to challenge the dominance of China's biggest search engine, Baidu. Its co operation with government censorship has tarnished its reputation outside of China. Google comes under greater ethical scrutiny than other firms because of its much trumpeted founding principle: don't be evil.
Those were some of the top stories from this week's OUT-LAW News.
This week a committee of The House of Lords began examining, line by line, a controversial and far-reaching new proposed law, the Digital Economy Bill. That process continues next week.
The Bill is the Government's way of putting into law those recommendations of the Digital Britain Report that require new legislation. In doing so it amends lots of other laws, including the Copyright, Designs and Patents Act.
At first it was the subject of heated debate only because it proposes allowing ministers to force internet service providers to sever the connections used by suspected copyright infringing file sharers.
But as politicians have looked more closely at the Bill they have found more and more problems with it. The Bill has not yet reached The House of Commons, so far it has only been peers that have been able to suggest improvements to the law through suggested amendments.
Some of the most interesting have come from a Conservative Party backbench peer whose main interest so far has been in education. Lord Lucas has tabled amendments that would strengthen the rights of individuals and weaken some of the protections the Bill gives to copyright holders.
He wants to give people the right to take action against companies that make baseless threats about supposed copyright-infringing behavior; he wants to force those making claims to specify the exact damage they have suffered and he wants to give search engines a more secure legal footing than they currently enjoy.
All of his amendments, he says, stem from his basic view that copyright is not in itself a desirable right, rather a necessary evil.
Lord Lucas: I think copyright should move away from the concept of permission to one of a right to remuneration. I really agree with Lord Macauley if you can recall his speeches in 1841 or thereabouts when copyright was being discussed. That copyright of itself is not a good, copyright is a combination of a monopoly and a tax on the innocent enjoyment of by and large worthwhile material. We are dealing with something which is not some sort of a serial right of creators, we are dealing with a commercial and legislative compromise that allows the people at large to enjoy the fruits of the creativity of those who produce the material.
Lucas says that businesses based on copyright should take responsibility for their own futures and change the way that they operate rather than just rely on law changes to try to alter people's behaviour.
Lord Lucas: We estimate 6-7 million people in the UK are regularly downloading copyright information without paying for it. The industry has allowed it to become common practice. I mean it was the industry that refused to do the deal with Napsta that might have made this, the whole process legal. I think the key to protecting copyright in a digital age is to offer the customer something more than they can get for free.
That is not to say, though, that copyright infringers should be let off scot free. The Bill proposes severing the connections that they use. This would simply not work on a practical level and is undesirable in principle, says Lucas.
Lord Lucas: I certainly don't think disconnection is a practical method because now you just move your service provider. I mean are you going to pass names round and sort of create a blacklist and what sort of systems for appeal exist for this thing and how much, how do you measure the damage you are doing to the customer by depriving them of broadband. I would much prefer a system which was akin to the civil enforcement of parking fines. In other words if there is a civil penalty which can be levied against people who continue to transgress. So you just effectively say to them if you you're not paying the copyright holder you will be paying the fines.
Lucas has proposed specific alterations to the Bill to help redress the balance of copyright law and practice in favor of users of content. One suggests that the law create the ability for people wrongly accused of infringement to take action against their accusers. This, he hopes, will solve a problem he has identified of companies trying to bully people into paying hundreds of pounds to settle charges based on evidence that the accused cannot necessarily trust.
Lord Lucas: You get one of these letters it says you have downloaded this, that or the other and you are – no – we will, are prepared to settle this for a promise never to infringe again and a cheque for £500 and you are faced in the alternative with spending – what something like £10,000 defending yourself against a charge where you - how do you defend yourself against something like that? There is no, they claim to have proof of what you had done. You have no easy way of refuting it and generally the practice is that if you fight on long enough they just withdraw because there is actually no basis on which they could win a proper court case.
But many people don't fight on and pay up.
Lord Lucas: Most people pay up, if you assert a groundless right to patent protection against somebody else then you can seek damages from the person who threatens you in that way. I think the same should in principle apply in copyright and in practicality is a good a way as any of trying to deal with the problems which tens of thousands of internet users are facing every year at the moment.
He also wanted to introduce a change forcing anyone making a claim of copyright infringement to quantify exactly what damage they had suffered.
He now says, though, that the issue is more complicated than it at first appeared, and that he won't pursue that amendment.
Lord Lucas: But what I am trying to look at there is how the minor infringers will not find themselves on the wrong end of very expensive and hard to defend civil litigation. The precise way of doing it does not work because I had, I had been listening too much to the language being used about this being a Bill which was aimed at people who downloaded copyright material. This Bill is not about that, it is about people who make their material available for upload. I think the idea of under those circumstances of trying to put a value on the transgression won't work.
Lucas lodged another major amendment this week, demanding that the Digital Economy Bill formalise the legality of the way search engines operate. They work by making a copy of web pages and storing it. When you search for something it is this index of copied pages they search before giving you the link to the real, live page.
This copying might or might not be permitted by current copyright law. But fearful that powerful publishers might suddenly try to enforce a right to retract permission for the copying, Lucas wants the Bill to formally state that search engines can do this.
Lord Lucas: Well, it seems to me that one of the principles we ought to be operating on, on the internet is access to information for all and equality of access rather than something being based too heavily on payment, and that to know what is there even if you have to pay for the final product that it is important that people know what is there and know what is out there without having to pay for things and that the way that the search engines have developed provides that, it provides that now that information is freely available to everybody.
Lucas is not the only peer trying to refine the law so that it better protects individuals. Lords Razall and Clement-Jones want the law specifically to state that disconnections are done in a way consistent with people's rights to privacy and free speech; while Clement-Jones wants it to force copyright holders to swear that all the information that they act on has been collected in line with data protection and privacy laws.
In the end, Lucas is a self-described libertarian and does not want to rewrite the law so that it closely governs individuals' behaviour. All he wants, he says, is for copyright law to reflect a new reality brought about by the digital revolution.
Lord Lucas: I don't think that at the end of the day it is going to be appropriate to make vast changes to the way that copyright works without proper consultation with the industry and all involved. My objective in putting these amendments down is really to focus the minds of us legislators on the fact that this is not a Bill which will produce a solution to anything, it is merely a step on a road; the world has moved on. Things are different, there are different ways of doing things now. We have to adapt to it, we have to make copyright effective but at the same time copyright holders have to live in the real world.
That's all we have time for this week, thanks for listening. Why not get in touch with OUT-LAW Radio? Do you know of a technology law story? We'd love to hear from you on radio@out-law.com. Make sure you tune in next week; for now, goodbye.