On June 16, the UK government published The Digital Britain Report, its strategic vision for ensuring that the UK is at the leading edge of the global digital economy.
The report provides actions and recommendations to promote and protect talent and innovation in the UK's creative industries, to modernize TV and radio frameworks and support local news, and introduces policies to maximize the social and economic benefits from digital technologies.
As part of the report, the government has unveiled the publication of a new legislative approach for addressing the problem of illicit use of Peer-to-Peer (P2P) file-sharing technology to exchange unlawful copies of copyright material.
The proposals will provide a legislative baseline aimed at changing the behaviour of the majority of file-sharers, provide a mechanism for identifying any further action to be taken against repeat infringers if appropriate, and facilitate rights holder efforts in taking legal action against the most frequent infringers.
Unlawful P2P file sharing was identified in Andrew Gowers’ Review of Intellectual Property as causing significant damage to the UK’s creative industry.
Gower’s Recommendation 39 called upon the government to take action if no industry solution proved possible. This was accepted by government and recognized in the Creative Economy Strategy Paper (February 2008).
Despite industry efforts, culminating in the Memorandum of Understanding (MOU) signed in July 2008, no voluntary solution was identified, although the MOU process provided much valuable information and experience, according to the report.
The government consulted on possible regulatory solutions in parallel with the MOU process. The outcome of that consultation was announced as Action 13 in the interim Digital Britain Report (January 2009).
Action 13 sets out two obligations which will apply to ISPs. ISPs will be required to send notifications to subscribers who have been identified in relation to alleged infringements of copyright. The second obligation is for ISPs to maintain (anonymised) records of the number of times an individual subscriber has been so identified and to maintain lists of those most frequently identified.
Both obligations would be underpinned by a code drawn up by industry and approved (or imposed in the absence of agreement) by Ofcom.
Following further consideration, the government is now proposing a change to the way in which it constructs these obligations. The latest document to be published as part of the Digital Britain Report sets out an approach whereby a duty will be placed on Ofcom to take steps aimed at reducing online copyright infringement. Specifically it will be required to place obligations on ISPs to require them:
Ofcom will also be given the power to specify, by Statutory Instrument, other conditions to be imposed on ISPs aimed at preventing, deterring or reducing online copyright infringement, such as:
The exercise of this power would be subject to consultation with stakeholders subject to annulment by resolution of either House of Parliament.
If Ofcom is satisfied that the obligations and targeted legal action scheme has proved to be insufficient to dissuade serious infringers, then it will have a power to require ISPs to impose specified technical measures against infringing individuals.
Finally, Ofcom will be placed under a duty to ensure that there is a code of practice, with which ISPs will be under a legal obligation to comply (and rights holders to follow if they wish to trigger action under the code).
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