Digital Britain Report - Proposals to prevent illegal file-sharing

Note: this alert has been updated to reflect a new statement published by the government on this topic on 25 August.

As part of its Digital Britain initiative and following on from a process started after a recommendation made in Andrew Gowers’ Review of Intellectual Property in 2006 to take action against unlawful peer-to-peer (“P2P”) file-sharing, the government launched a consultation on legislation to address illicit P2P file-sharing on 16 June 2009.  Subsequently the government issued a Statement on 25 August 2009 announcing some new ideas to be considered as part of the consultation.

The Digital Britain report recognises that a significant proportion of consumers are choosing to access digital content unlawfully, mainly through illicit P2P file-sharing, and that this is a major concern for content industries. For example, it has been estimated that the UK music industry loses £180 million per year, and that there was a £152 million loss for the television and film industry in 2007. 

The government is proposing a two-stage process to reduce or prevent online copyright infringement. Firstly it plans to impose a duty on Ofcom to take steps aimed at reducing copyright infringement. If this does not have the desired effect, Ofcom will then be granted additional powers to impose technical measures against infringers. The consultation seeks views on how to implement this new regime and how the costs should be apportioned.

First step – notification and action by rights-holders

The new duty imposed on Ofcom to take steps aimed at reducing copyright infringement will include an obligation on Ofcom to require internet service providers (“ISPs”) to:

(i) notify account holders on receipt of appropriate evidence that their account appears to have been used to infringe copyright, and

(ii) maintain and make available (on the basis of a court order) data to enable the minority of serious repeat infringers to be identified.

It is proposed that a code should be put in place establishing the detail of how the ISPs should comply with this new regime, including practical measures, appeals, standards of evidence and the apportionment of costs.  The government hopes that an industry body, such as the digital rights agency it proposed in the interim Digital Britain report, will be established to draft the codes of practice for Ofcom to approve.  However, Ofcom will have authority to impose its own code if the industry fails to reach any consensus on this. 

The government is proposing that the cost of notifications be split 50:50 between rights holders and ISPs, with ISPs bearing the costs of logging notifications and rights owners paying their own costs of pursuing court action against serious infringers. However, the government is seeking views on the apportionment of costs, including whether small ISP businesses for whom the cost would be disproportionate should be exempted. 

Ofcom will have the power to fine ISPs and rights holders for failing to comply with the code. 

The government believes that much of the illegal downloading can be prevented by notifying and educating consumers about their illegal activity and providing them with an incentive to choose lawful routes for downloading material by offering affordable and convenient content. It is envisaged that rights-holders will take civil action against serial infringers based on information supplied by ISPs under court order mentioned at point (ii) above. 

The government wants Ofcom to review the level of unlawful file-sharing activity after the code has been operational for six to twelve months to test the efficacy of the notification procedure by the ISPs and the execution of legal action by the rights holders. 

Second step – Technical measures

Originally the government proposed setting a 70% target for reduction in unlawful file sharing, measured by the percentage of those notified who had stopped unlawful file sharing.  Under the original proposals, if this target was not met, the government proposed to introduce new legislation under which Ofcom would be granted powers to place additional conditions on ISPs aimed at reducing or preventing online copyright infringement by the application of technical measures, such as blocking content or reducing download speed. 

On reflection the government has decided that it is inappropriate to define a precise “trigger” as the basis for introducing technical measures, particularly given the inherent difficulties of measuring unlawful P2P activity with any precision.  Instead, the government now considers that the Secretary of State should be given discretion to impose additional powers on Ofcom taking into account all the evidence available to him, including, but not limited to, reports from Ofcom.

These technical measures include:

• blocking of content, either to particular websites or protocol blocking to deny access to particular services;
• reducing the speed or volume of data downloaded by bandwidth capping (which caps the speed of a subscriber’s Internet connection and/or caps the volume of data traffic which a subscriber can access) and bandwidth shaping (which limits the speed of a subscriber’s access to selected protocols/services and/or caps the volume of a data to selected protocols/services);
• content identification and filtering;
•  suspending a subscriber’s account. 

The latter option of disconnecting the most flagrant copyright pirates was not included in the original consultation, but was added as an option in the government’s August 2009 statement. However the government has stressed that suspension of an account is a measure that would only be taken as a last resort, bearing in mind the proportionality and effectiveness of the measure. 

Under the updated proposals, the Secretary of State would be able to direct Ofcom to carry out preparatory work on the mechanics of introducing technical measures, including an assessment of their efficacy on different networks, as well as the code that will apply to implementing such additional measures and to consult on their conclusions.  The Secretary of State would also be empowered to direct Ofcom to introduce the measures they had determined were effective and proportionate should he conclude that such measures are necessary to achieve the overall objective. These revised proposals would enable the government to introduce more robust methods of tackling unlawful P2P file-sharing more quickly than under the original plan. (The original consultation proposed that there be a further consultation and involvement of either House of Parliament before any additional powers could be given to Ofcom.)

In light of the government’s Statement of 25 August 2009, the closing date for responses to the consultation has been extended from 15 September 2009 to 29 September 2009. 

Please contact us if you would like FFW to assist with responding to the consultation or to respond on your behalf.