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:
- to notify alleged infringers of rights (subject to reasonable levels of
proof from rights-holders) that their conduct is unlawful; and
- to collect anonymised information on serious repeat infringers (derived
from the notification activities), to be made available to rights-holders
together with personal details on receipt of a court order.
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:
- Blocking (Site, IP, URL);
- Protocol blocking;
- Port blocking;
- Bandwidth capping (capping the speed of a subscriber’s internet connection
and/or capping the volume of data traffic which a subscriber can access);
- Bandwidth shaping (limiting the speed of a subscriber’s access to
selected protocols/services and/or capping the volume of data to selected
protocols/services); and
- Content identification and filtering
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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