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In an amusing democratic coup by French Socialists, President Sarkozy’s illegal downloading bill was defeated when a crowd of MPs snuck up on the near-empty National Assembly and voted the law down, 21-15. This was embarrassing for Mr Sarkozy. In my view, it serves him right and I wish the Socialists the best of luck in defeating the law when it is next on the agenda.
The proposed law is Sarkozy’s solution to the problem presented by the Record Industry & Motion Picture Associations of America (RIAA & MPAA respectively): their pre-internet model of distribution is unattractive to the modern consumer. The costs undertaken in the production, storage, distribution and sale of physical media simply cannot compete with digital distribution.
It has been just over a year since I completed my dissertation on this subject. This news has prompted me to think about it, and I would like to reiterate an argument I made then, but in stronger terms.
The move to digital distribution of music (and other media) is powered almost entirely by the market. It is a complete fallacy to suggest that at the turn of the millenium, with the advent of Napster, millions of people threw their ethics out the window and decided they need never pay for a musician’s recorded work again. As Radiohead’s release of In Rainbows demonstrated, people are still willing to pay a reasonable price for a product they like. The album – available for free – netted more money for the band than digital sales of all of their other albums combined.
The reality is that the millions of people who used Napster followed the path of least resistance. Yes it was free, but it was also easier and quicker, and provided everything to the comfort of your own home. As soon as broadband speeds allowed it, the market shifted to the new model of distribution. Physical media was dead.
The music industry made a fundamental error in trying to fight rather than embrace the change presented by new technology. Largely speaking, the past decade has been dominated by an industry attempting to kill itself off, and lobbying governments to join in. By way of example, the most significant and immediate reaction of the industry was to slap Digital Rights Management (DRM) technology on their physical product, to prevent copying. Of course, as we know now, that doesn’t work. A quick refresher – DRM is flawed because:
As if #6 wasn’t upsetting people enough, you then start suing people. Not just people though; mothers, minors, students. People not well-placed to have litigation directed at them from a huge industry body. All these moves have done is erode any sympathy consumers may have had for the industry.
The final pillar of the industry’s policy has been legislation through government lobbying, bringing us back to Mr Sarkozy. However, people downloading music are not necessarily doing the musicians any harm; digital flexibility makes it much easier for artists to be discovered, and many have already adapted to making most of their money from live performances. The lynch-pin in the industry’s argument when it talks about lost revenue is that statistics on music downloading are representative of lost sales. Yes, there is a coincidence of sales going down and downloads going up, but the causal link has not been adequately demonstrated.
What is left is a mess of the industry’s own making. A generation of consumers are unwilling to cough up to companies they perceive as doing little to benefit artists but plenty to punish the people who would give them money. A new wave of artists are already keen to distance themselves from the industry: as more of them recognise the benefits of distributing their music without a label, the industry is left in a very dangerous place.
It would be much better for music, and the market, if Mr Sarkozy just left internet downloading alone. Whether the industry chooses to hang itself is a question for its shareholders.
This is the first post looking at our constitution and a brief look at the Human Rights Act.
At the end of my last post I said the UK has no written constitution; that’s not strictly true. Bits of it aren’t written down. Other bits are. And the whole point is that it can change all the time. This has advantages and disadvantages. On the plus side, it has meant that the UK has been fairly stable, politically, for hundreds of years. We’ve been doing parliamentary democracy longer than anybody else. This is because our constitution is so flexible it can adapt to whatever the circumstances ask of it, like the massive reform of the House of Lords at the beginning of the twentieth century and the gradual erosion of the powers of the Monarch. We haven’t had to chop any heads off for ages.
On the down side, however, it means that our current law is very much subject to political pressure. One of the main benefits of having a relatively fixed constitution is that you can do some longer-term thinking; you can set things aside that won’t change in a hurry. The most obvious things found in written constitutions in other countries include inalienable rights (i.e. rights that cannot be taken away). For Americans the ‘First Amendment to the United States Constitution’ provides them with their right to free speech. It cannot easily be restricted, regardless of what pressure is on the government of the day. Good stuff. Whether giving everybody the right to bear arms – through the second amendment – was such a great idea is perhaps less universally accepted.
We have not had anything similar in the UK until relatively recently, when we signed up to the European Convention on Human Rights at the end of the Second World War. This sets out a number of inalienable rights. These include the right to freedom of expression (Article 10) and the right to life (Article 2). If necessary these rights can be enforced by taking a case to the European Court of Human Rights in Strasbourg.
However, through the Human Rights Act 1998, UK courts are also obliged to take the Convention and Strasbourg case law into account when making judgements. The courts can also issue a ‘declaration of incompatibility’ if no amount of interpretation is going to get an Act of Parliament to sit with the Convention. Grand though it may sound, this has no legal effect on the Act or on the parties in the case, until Parliament amends the Act in question. In such a case it is still open to the parties to enforce their right by taking the case to Strasbourg.
It is not, then, from the Human Rights Act that human rights derive. Instead it is from the Convention – the treaty we have been party to for over fifty years. What the Act does is make things less expensive for litigants (that is, people going to court) by bringing the law ‘in-house’ – back to a UK level. This helps prevent us having to ‘wash our dirty linen’ at the European Court. The Human Rights Act is often blamed when perceived injustices take place, but it is important to recognise that it does not grant any new rights. It only makes it easier to enforce ones that have been enjoyed for decades.
Nevertheless, the Human Rights Act represents one of a number of big shifts in the law. If the UK does have a written constitution then the Act forms a key part of it. If there is a debate on the validity of human rights – whether we should grant these particular rights to all people – then it is one that must examine the Convention itself, not the Human Rights Act.
Personally speaking, I would not want to be deprived of any of the rights in the convention and so live much happier knowing they are secured in law for all. Perceived injustices relating to human rights usually involve those convicted of horrible crimes, who have effectively deprived others of their human rights. I am not comfortable with the idea of treating them as less than human, as in some ways that is to become them. I am even less comfortable with the idea of the state deciding that some humans are not to be given the same rights. The authors of the ECHR drafted the document primarily to prevent the state committing attrocities against the individual. I would not be quick to do away with that protection, even if it sometimes leaves us uncomfortable in our protection of those who we feel society should owe nothing.
You may disagree – comments are of course welcome.
In the next post we’ll look at sources of law in the UK.
This is an interesting one – the other week the Liberal Democrats launched their Freedom Bill. More details including the full text can be found on their campaign website.
The objective of the Bill is to repeal a large block of legislation that has been put on the Statute Book in recent years, legislation which has taken away or eroded important freedoms that we in the UK had previously enjoyed. As the Bill stands at the moment (the Lib Dems are asking people to contribute), twenty laws are identified for repeal.
Three that particularly stand out for me are getting rid of Identity Cards, removing innocent people from the DNA database and scrapping ContactPoint. In my view these represent a paradigm-shift in the way institutions of the state deal with the individual. In that respect, bringing an end to them means not just changing the way we do things, but tearing down a pillar of New Labour’s ‘war on terror’. As a civil libertarian, that would make me very happy.
Even if it will be a struggle to make the Bill law, I am very pleased that a major Party is making civil liberties an issue again. At the very least, the campaign will make it more awkward for politicians to be ambivalent: they will have to take a stance on these issues, and defend it.
Disclaimer: nothing here should be considered legal advice nor are any guarantees or warranties made as to its accuracy. If you do see something you believe is inaccurate please let me know. This information is provided purely for your interest.
The law in England and Wales is often complicated, patchy and out of touch with society. Yet these rules are supposed to set the boundaries within which we live our lives. Be it in the more familiar criminal law – defining rights and wrongs within society – or in more obscure law such as contract or trusts, laws affect everything in our lives.
To live in ignorance of the law is not bliss. If you don’t know what the law is, you cannot follow it. There is a risk that you will break the law without realising it. This ‘legal uncertainty’ can have a very negative impact on society, and is a hallmark of a very strong, authoritarian state. In such a state, people can be made into criminals at the whim of bureaucrats. Unfortunately the UK increasingly looks like such a state.
Within the past few years, Parliament has produced a record amount of legislation. On average, over three hundred pages a week have been produced. This is too much for anyone to be familiar with. In recent cases it has been seen that even lawyers working for the government do not understand exactly what the law is (See, for example, this post from Geeklawyer). No person can claim intimate knowledge of all law within the UK.
What I hope to achieve with these posts, however, is to bring you a bit closer. Posts in this category are written with young people in mind, perhaps those considering studying law, but I hope it will be of interest to anyone who wants an introduction to the legal system of England & Wales. The aim is not to create something like the FreeLegalWeb, which aims to make all English law available from one source online. This is just a humble introduction.
Thank you for reading this first post, I hope it has piqued your interest. In the next post we will be looking at sources of law and, in particular, an introduction to the constitution of England & Wales.
Never heard of it? That is because it is not written down. The law can be a bit like that.
Clint Eastwood (of all people) once said ‘take your profession seriously; don’t take yourself seriously’. It seems a sensible adage to live by, in the spirit of which you will notice a fairly drastic restructuring of this website. In addition to http://nigebox.com, the site has been split in two, with a new sister site: http://nigelaw.com. The former is now to be a tongue-in-cheek place for ranting about the world and a place for me to write about other things as I see fit. It should be read with Clint’s wise words in mind, and not taken too seriously.
This however is the first post of nigelaw (see what I did there?) – the objective of which is quite different. In September I will begin studying for the LPC (Legal Practice Course) in London, and will be writing about my experiences and hopefully collating some useful content on these pages. I enjoy reading a number of serious (and not-so-serious) blawgs written by practitioners, academics and students. The aim is to throw this blog in amongst them.
Exactly what form the ‘useful content’ mentioned above will take remains to be seen. The approach I intend to take is to produce content that I find useful. If over time others find it useful then all the better. Hopefully by obliging myself to produce this content I will understand my course better. If that’s not really happening, I’ll dedicate my time to other things.
The first project that I will be undertaking on here is something that I have decided to call ‘The Law And You’. This will be a series of posts meant to provide an introduction to the law of England & Wales. The aim is for them to be easily understood without any prior knowledge of the legal system. Perhaps for young people thinking of studying law, or for anyone who wants to know a bit more about the way law works.
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