Jeni Tennison

Jeni Tennison

Jeni Tennison

Data Protection and Digital Information Bill

It’s been a hectic few weeks as the Data Protection and Digital Information (No. 2) Bill winds its way through Parliament: producing briefings, oral and written evidence, and supporting both parliamentary advisors and the loose coalition of organisations seeking to influence the Bill.

This is my first foray into attempting to influence legislation, and it’s really interesting learning about and getting involved in the process. Some reflections, bearing in mind we’re just part way through the Committee Stage of the Bill in the Commons:

  1. Be prepared – The Bill Committee go through Bill clauses one by one, and there’s no going back to clauses that have already been considered. That means members of a Bill Committee need to have tabled amendments – particularly those in the first part of a Bill – before the first session. It means written evidence is unlikely to be considered during the Committee Stage unless it comes in at least a week before the Bill Committee starts. It means oral evidence should be reinforcing tabled amendments rather than introducing new ones. Basically everything that can and will be discussed needs to already have been laid out well before the Committee starts sitting.
  2. It’s who you know – Politicians choose what they want to advocate for, and who to call as witnesses. Knowing who their advisors are and being on good terms with their advisors means that your material gets in front of them and you get on those lists.
  3. Quality not quantity – There is a very human limit on the work that can be done by an advisor around the Bill. Every amendment (or set of amendments) needs drafting and speeches to be written. Advisors are often working in a new area, so value work having been done for them in terms of pulling together material that can used to make your case. Something well argued will be straight up copied into MP speeches. That means focusing.
  4. Scrutiny my ass – In the Commons, the constitution of the Bill Committee reflects that of the Commons, so naturally the Government side will have a majority, and will have selected members from their own side who will vote with the Government. So only amendments proposed by the Government will be accepted. It’s rather theatrical really and I imagine must be fairly dispiriting for opposition MPs. I’m told that on occasion the Government might propose an amendment that’s a version of an opposition proposal (in a not-invented-here kind of way), and that sometimes Bill Committee discussions are used, after the Bill has become law, to clarify the intention behind pieces of legislation, but it does seem a little pointless following this stage too closely.

The next stage is the Report Stage, which I’m hoping won’t come before mid June (given all the other things on between now and then). My expectations are pretty low for that stage too. I doubt there will be overly much interest in this Bill from MPs, particularly not to the extent of Conservative MPs voting against the Government.

(It could be possible to raise the saliency of the Bill in MP’s minds through, for example, a letter writing campaign. But that requires the public to care quite a lot about data rights. And while they do if you ask them, it’s really not at the level of public salience where MP’s inboxes will be flooded.)

But that’s ok: our real goal of engagement in the Commons is the longer-term one of persuading opposition MPs of our policy points on data and digital rights, so that future manifestos and policies include them.

I gather scrutiny is a little more meaningful in the Lords and I know there are a number of peers who are interested in (particular aspects of) this Bill. So I’m looking forward to a bit more engagement at that stage.

Generative AI

It’s been impossible to avoid discussions about generative AI over the last few months, and during this last week I’ve been involved in two more detailed ones: one a GPAI Townhall meeting, and one discussion with the Creative Commons Board, which I’m a member of. I also took advantage of some downtime in Washington to watch most of the Senate hearing on generative AI.

I’ve really benefited from conversations with knowledgeable and open-oriented copyright lawyers like my GPAI co-chair Maja Bogataj through this process. It’s helped me understand some of the risks around the prevailing narrative about “theft” of copyright works, the kind of technical and policy solutions that might be put into place as a result, and who will benefit from them.

While we think of copyright as being held by the little people (screenwriters, artists, musicians and so on), in fact a lot is held by the organisations who have consistently lobbied for extensions to copyright terms and restrictions – movie studios, music labels, publishers – so that they can extract rent on IP that is never passed on to the originators of those works, and in many cases restricting the flows of knowledge and culture that helps enrich our lives and society to progress.

In practice, policy solutions around generative AI that aim to extend copyright or provide recompense to those whose copyright material has been used for training AI will help funnel more money towards those big copyright holders, and/or force generative AI developers to exclude knowledge and content from training materials, making that AI less useful, and more biased (particularly as it will be proportionally more reliant on older, out-of-copyright material that is even more inaccurate, out-of-date and biased than more current content).

In fact these copyright holders look set to benefit three times: from reimbursement for the use of the copyright they hold; from an extension to copyright restrictions that furthers their ability to extract rent from the IP they own; and from the ability to use generative AI to create more content more cheaply.

We should be aiming to support creators, not copyright holders. How, I’m still not sure. (Well, honestly I think it’s Universal Basic Income, but I really don’t know how we get there from here.)

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