In yesterday’s “Open letter to Ed Vaizey” post I made the point that much of what is bad about our current Intellectual Property regime stems from the previous Labour regime’s willingness to let themselves be to the media industry’s tool for giving the rest of us a shafting. At the time I wrote that, I honestly had no idea quite how true it was.

I’m a great fan of the WhatDotheyKnow.com website, which allows people to submit Freedom of Information (FoI) requests to pretty much any organisation which is obliged to answer them. One that I spotted on there earlier is a very long drawn-out and convoluted discussion between Phil Bradley and the Department for Business, Innovation and Skills, titled Correspondence with representatives of the creative industry, Aug 08-09. Despite having originally been submitted in October last year, the final response didn’t arrive until yesterday.

This last piece of information is a series of emails and memos relating to meetings between Lord Mandelson, in his capacity as Business Secretary, with representatives of the media industries. As usual, I’d suggest that you have a look at the originals rather than taking my word for what they say, but some comments do bear repeating.

A large chunk of the material consists of a memo sent by Lucian Grainge, CEO of Universal Music Group International, to Lord Mandelson’s office in July 2009. Here are some highlights:

Internet music piracy appears to have become a socially acceptable norm, across all generations and all social classes. But just because it’s widespread doesn’t make right. Stealing from a musician or a music company is exactly the same as shoplifting a picture from a gallery, or stealing coins from a busker’s hat.

Sweden: the home of Abba, Roxette and the Cardigans has seen even greater levels of piracy and the inevitable has happened: Universal and the other majors have virtually stopped investing in new talent. The once thriving Swedish music scene hasn’t produced a successful new act in years.

The UK could be in exactly the same place in just 3 years – diversity will go first and soon the only new music will be on the ‘X Factor’.

Even more critical that Government must start planning now for step 3 (a statutory obligation on ISPs) and essential that this power is included in the Digital Economy Bill

The first of those comments (that copyright infringement is exactly the same as theft) is such a discredited argument that I won’t waste my time rebutting it here. As for Sweden and the UK becoming musical wastelands, Wikipedia disagrees with the former, and I’ve heard plenty of good new stuff from the UK in the past couple of years. Fair play to Mr Grainge, though, he’s absolutely right when he suggests that an X Factor dominated music scene would be disastrous (although spoils it a bit by failing to recognise that Simon’s Karaoke Show doesn’t actually generate any new music at all – it’s all cover versions). His final point, of course, is an opinion, and one that he’s perfectly entitled to hold.

Anyway, the next item is a short email in which Mandelson asks his advisors

why was is originally envisaged to wait until the end of 2012 before technical measures were in place? Shouldn’t technical measures be in place from the outset?

followed by another quickie in which he tells his staff

please tell Kevin and press handlers that we need to be seen to be balanced, genuinely consulting and sensitive to individuals who may unwittingly fall foul of the law

Given the preceding email, the words “seen to be” in the second are rather telling. It’s pretty obvious, from this sequence, that Mandelson had, by this point, already decided that he wanted to favour the media industries over ISPs and consumers, and that any consultation was primarily designed to give an impression of being open minded.

A bit further down the document is a section headed “TIMETABLE: PEER-TO-PEER FILE SHARING”. Again, some extracts (“SoS” means “Secretary of State” – that is, Lord Mandelson):

02 July 2009
SoS meeting with Lucian Grainge of Universal. SoS asked for advice on options exploring whether Digital Britain proposals on peer to peer file sharing will go quickly enough and far enough.
03 July 2009
Advice to Lord Carter (copied to SoS and DCMS) on possibility of SoS having a power to direct Ofcom to go directly to introduction of technical measures.
07 July 2009
Advice (through Lord Carter) recommending that the “power to direct” process should be adopted as preferred route (rather than Ofcom decision)

10 July 2009
Advice (through Lord Carter) on removing reliance on “trigger” mechanism to judge the efficacy of initial obligations.
13 July 2009
E-mail sent to officials stating: The Secretary of State has seen the letter from Lucian Grainge and commented “I think we should examine, including step 3 power in Bill. What is Stephen Carter’s view? Officials need to meet and discuss asap as Lucian suggests”. Geoffrey Norris begins series of meetings with key stakeholders to canvass views.

Rather amusingly, the next email is one in which Mandelson’s private secretary expresses concern at the media reports of his holiday on David Geffen’s yacht. The suggested response is to point out that, far from changing his mind as a result of meeting Geffen, Mandelson’s mind never needed changing at all – he had always favoured the media industry:

I would be grateful if you could draft a brief generic statement emphasising that work on this was already well in hand before the SoS’s holiday, which we could then deploy to the BBC et al later today if needed.

Finally, the supplied documentation ends with another couple of short emails. One is titled “SoS views on P2P”, and says:

To summarise what we just discussed:

– a telescoped process with us taking power to direct Ofcom;

– further consultation with us suggesting a power for suspension to be included in the technical measures

and then a final note from one staff member to another:

Peter wants to go further on technical measures to include suspension. Apologies I have not got back sooner. What are the next steps?

I think all of this pretty much speaks for itself. It seems abundantly clear, from this exchange of emails, that Lord Mandelson had swallowed the media industry position hook, line and sinker and wasn’t at all interested in trying to reach a balanced view.

Unfortunately, a lot of this did find its way into legislation, via the Digital Economy Act, and we’re now faced with the task of unpicking it and rewriting the law to be more balanced and more sensible. Despite my comments yesterday, I am still optimistic that this can be acheived. The FoI response also included copies of emails and memos relating to Ed Vaizey’s meetings with the media industry, and they’re much more reasonable. For example, this couple of extracts are encouraging:

At the BPI’s suggestion, EV agreed to convene a meeting with the heads of major records labels. EV noted that he would make clear at any such meeting, that the legislation in the DEA to tackle illegal file sharing is intended to be light touch and that the real emphasis was on continued development and promotion of ways to download content legally, at a reasonable price and as such he would like to propose an agenda for this meeting which included a list of actions he would like the record industry to take forward.

EV advised the BPI that IPO may be undertaking a desk based review of the copyright strategies and encouraged the BPI to mirror this approach and initiate a similar review, which converged the views of rights holders and for example, the views of the Open Rights Group.

It’s important, though, that we keep up the pressure on the government to ensure a more equitable outcome. That’s even more true in the light of the Meltwater case, which illustrates just how much copyright law disadvantages users of electronic material. Given Lucian Grainge’s comment about Swedish music, this seems an appropriate way to end. Because someone has to save the creative world…