One of the central issues addressed in the government's recent Digital Britain report was how to protect the creative industries in the UK, and in particular how to tackle Peer-to-Peer (P2P) file-sharing. Previous proposals have polarised views and attracted criticism in equal measure from both sides of the debate. The Department for Business, Innovation and Skills latest consultation issued on 16 June 2009 sets out the government's plans to empower Ofcom to ensure Internet Service Providers (ISPs) take steps to prevent unlawful P2P file-sharing. These latest proposals go further to strike a balance between the interests of rights-holders, ISPs and consumers. The proposals, if implemented, will impose a statutory duty on Ofcom to take steps to reduce online copyright infringement. ISPs will be required to send notifications to alleged file-sharers and to store information on file-sharing to be released to rights holders on receipt of a court order. Further 'technical measures', such as slowing down particular users' Internet connections, will be available if necessary.

The consultation provides an opportunity for all affected parties to make their views known, and encourages cooperation between key players to establish a new Digital Rights Agency. The consultation sets out a reasoned general framework; nevertheless key questions remain unanswered, such as who will pay for the costs of the new proposals.

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The government has for some time had plans to legislate to address P2P file-sharing. It consulted on legislative options to tackle this issue last summer. This consultation revealed that there was no consensus between content owners, ISPs and consumer organisations about how best to prevent the current widespread and unauthorised downloading of copyright protected material. Having taken on board a variety of views, the government outlined its vision for the future in its Interim Digital Britain Report. The report recommended the creation of a Digital Rights Agency to coordinate attempts to prevent illicit file-sharing on the Internet. Recently the UK Intellectual Property Office canvassed views on how a Digital Rights Agency should operate.

Last month the final Digital Britain Report was published which further developed the government's tough stance on P2P file-sharing, characterising it significantly as a 'civil form of theft'. At the same time, The Department for Business, Innovation and Skills consulted on new proposals to tackle this problem.

Changing Behaviour

The underlying intention of the plans is to change the behaviour of those who use the Internet, specifically to discourage use of file-sharing to infringe copyright and to encourage the development of commercial models that offer attractive alternatives. Recent reports of a commercial tie up between Virgin Media and Universal Music and the well-documented success of iTunes suggest such a cultural shift is possible.

Ofcom's New Role

Ofcom will be placed under a duty to take steps to reduce online copyright infringement. Ofcom 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 their notification activities), to be made available to rights-holders together with personal details on receipt of a court order.

The second obligation may be more significant than it looks. By requiring ISPs to record this information, it should be much easier for rights holders to obtain large scale 'Norwich Pharmacal Orders' to obtain names and addresses of large numbers of infringers. The first obligation places the burden of collecting data on the rights holder.

Technical Measures

Ofcom will be responsible for monitoring the success of the notifications and of legal action taken against serious repeat infringers. If the above measures prove to be insufficient to change behaviour substantially, Ofcom will be further empowered to require ISPs to impose specified technical measures against infringing individuals. Such technical measures will be specified in a statutory instrument and may include:

  • Blocking sites, protocols, ports, IP or URL addresses
  • 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)
  • Content identification and filtering

Ofcom will also be charged with the development and implementation of a Code of Practice to underpin how the obligations will work in practice. The proposals repeat the government's desire for industry to come together and for a self-regulatory code to be developed by affected parties. If such a code is not forthcoming, Ofcom will develop one.

Canvassing Opinion

After the previous consultation the government is already aware of the fundamentally conflicting views of rights holders and ISPs and other interested parties. The consultation requests views on a number of important aspects of this new framework, such as who should have the right to require an ISP to send a notification, the content of such notifications, the nature of the technical measures, whether any restrictions should be placed on Ofcom's role, the content of the code and so on. The questions that may attract the most attention are those concerned with who should pay for the proposals to be implemented and whether there should be any limits on the numbers of notification requests from rights holders that ISPs must comply with.

Proof and Rights

As well as cost, one of the key battlegrounds is likely to be around levels of evidence, and when technical measures can be applied to consumers. By way of analogy, the French government's recent plans to cut-off Internet users and to impose sanctions without recourse to a Court of law were (predictably) deemed to be unconstitutional. The UK government seems to accept that this area will be contentious, suggesting that ISPs should be indemnified by rights holders who breach the code by for example providing incorrect evidence or using a flawed identification process. With respect to how the technical measures may be imposed the consultation states that:

"... the government is conscious that there needs to be protection in place for consumers who consider that they are being targeted wrongly.....It also seems reasonable and appropriate that, should further obligations be imposed, consumers have access to a clear and transparent (and independent) appeals mechanism since such measures may be taken against them without the benefit of a judicial hearing. In those circumstances it may be appropriate for an enhanced consumer appeal process to be introduced along the lines of an ombudsman."

While the UK government has backed away from adopting the controversial "three-strikes rule" model, it is not clear how acceptable enforcement steps will be if taken without the benefit of a judicial hearing. Even with an appropriate appeal mechanism in place, some consumers will object if the onus is on them to appeal, a reversal of the fundamental principle of 'innocent until proven guilty'. This raises the question as to whether the government's proposals would fall foul of the amendment made to the draft Telecoms Package by the European Parliament which states that a user's Internet access may not be restricted without a prior ruling by judicial authorities. These issues are particularly topical as it is well known that wireless Internet connections can be 'hi-jacked' and that sophisticated infringers are adept at masking their true identity, both being factors which increase the likelihood of the wrong person being identified. Some commentators have aired concerns that sophisticated infringers will, in any event, be able to avoid the identification methods and enforcement measures proposed.

More work to be done

There is more work to be done before a deal is reached that is palatable to rights holders, ISPs and consumers. Nevertheless the government's commitment to the cause and its grasp of the issues seem to be strong, even if its conclusions may not be to everyone's tastes.

The consultation is open until 15th September 2009.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 07/07/2009.