Canada: UK Government Issues Final Digital Britain Report

In TLQ 5:1, we reported that the UK government had issued its Digital Britain: Interim Report, which outlines a strategic plan to position the UK as a leader in the global digital economy and to spur growth in the digital and communications industries. Following extensive consultation with key stakeholders and members of the public, the government has now published the final report and accompanying action plan.

The final report sets out a number of recommendations to foster and protect talent and innovation in the UK's creative industries as well as to modernize and upgrade the wired, wireless, and broadcasting infrastructures and support local news. The report also introduces policies aimed at maximizing the social and economic benefits from digital technologies. These measures include:

  • a three-year national plan to improve digital participation by expanding Britons' knowledge of the Internet;
  • the provision of universal access to broadband services by 2012 so that every home in the UK has access to 2 Mbps broadband;
  • the creation of a fund that will invest in Next Generation broadband services;
  • an upgrade of digital radio by the end of 2015;
  • a liberalization of the mobile spectrum, enhancing 3G coverage and accelerating Next Generation mobile services;
  • the development of a robust legal and regulatory framework to combat digital piracy;
  • the provision of support for public service content partnerships; and
  • a consultation on funding options for national, regional and local news.

The report is accompanied by an action plan that sets out the steps for implementing the final report. Previously, we reported on the UK government's intention to consult further on a new rights agency and possible ISP obligations to collect anonymized information on serious repeat peer-to-peer file-sharing infringers and to make that information available to rights holders. The final report now outlines what the UK government considers is a clear path to addressing the problem, aiming to reduce the incidence of unlawful file-sharing by 70 to 80 per cent. The action plan and report detail a number of steps toward achieving this target including:

  • Consulting further on proposals to give Ofcom (the independent regulator and competition authority for the UK communications industries) a duty aimed at reducing copyright infringement. The current proposal is that Ofcom will be obligated to take steps aimed at reducing online copyright infringement by requiring ISPs to:
    • notify alleged infringers of rights (subject to reasonable levels of proof from rights holders) that their conduct is unlawful; and
    • collect anonymized 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.
  • Giving Ofcom "backstop" powers to specify other conditions to be imposed on ISPs, if the notification process outlined above has not been successful after a year in reducing infringement by 70 per cent of the number of people notified. These conditions might include:
    • 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 that 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 UK government recognizes that the obligations will need to be underpinned by a detailed code of practice and hopes that an industry body (the 'rights agency' envisaged in the Interim Report) will draft these codes for Ofcom to approve. Pragmatically, the government recognizes in the report that Ofcom needs the ability to impose its own code if it is satisfied that the industry cannot produce a code itself and has no immediate prospect of producing one.

  • Consulting further on the trigger mechanism that will give both rights holders and ISPs strong incentives to make the notification system work. The current proposal is for a trigger that the UK government suggests should be calculated by:
    • taking the number of unique individuals notified; and
    • assessing what percentage of those notified have stopped unlawful file-sharing, either voluntarily or due to prosecution.

If that percentage does not exceed or is not significantly close to 70 per cent, the Ofcom "backstop" powers will be triggered.

More recently, the UK government outlined how its thinking has evolved since the publication of the final report, particularly with respect to the proposed use of a 70 per cent trigger, which it now believes would be inappropriate due to the difficulties of measuring unlawful file-sharing activity and the length of time that it would take to implement the proposed measure.

As an alternative, the government has proposed that the Secretary of State have the ability to impose additional powers on Ofcom, taking into account all evidence available to him. The government also included in its follow-up consultation a request for responses on its ideas that:

  • the technical measures or "backstop" powers outlined above be extended to include the ability to suspend a subscriber's account as a last resort; and
  • costs relating to the notification and collection of data on notifications be borne by individual parties, except in relation to the costs of sending notifications, which would be split between rights holders and ISPs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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