NEW EU ONLINE DISPUTE RESOLUTION SERVICE

If you are a client and we have made a contract with you by electronic means you may be entitled to use an EU online dispute resolution service to assist with any contractual dispute you may have with us. This service can be found at http://ec.europa.eu/odr.  Our email address is  pamela.forte@fortelaw.co.uk or law@fortelaw.co.uk.

This online dispute resolution service is provided in accordance with new legislation - the EU Regulation No 524/2013 regarding Consumer Online Dispute Resolution ("ODR") and the Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015. 

‘A VETERAN OF THE WELSH MEDIA AND ENTERTAINMENT SPACE’ – HIGH PRAISE FOR PAMELA FORTE FROM CHAMBERS UK 2016

Forte Law is delighted to announce that Pamela Forte has, for the seventh year running, been recognised for her media and entertainment law expertise in Chambers UK.

The UK 2016 Guide, published on 30 October 2015, states:

‘Pamela Forte of Forte Law is a veteran of the Welsh media and entertainment space, having carved out a niche as an expert television lawyer. Her media and entertainment practice is complemented by extensive corporate law expertise.’

Pamela was delighted to hear of her inclusion in the prestigious guide to solicitors, stating ‘I only established my practice, Forte Law, in 2007 so I am honoured to be described as a veteran by such a well-respected publication’.

In announcing the publication of the 2016 guide, Chambers has outlined its rigorous research process - ‘to rank the world's best lawyers and law firms, our 150 researchers conduct in-depth interviews world-wide in over 20 languages’. The 2016 Guide can be viewed online at

www.chambersandpartners.com/guide/uk/1.

30 October 2015

FORTE LAW'S UPDATED EQUALITY AND DIVERSITY POLICY

Forte Law has recently updated its Equality and Diversity Policy. The up-to-date policy below replaces the policy published at the foot of the Forte Law website.

FORTE LAW

EQUALITY AND DIVERSITY POLICY

1.   INTRODUCTION

 

   1.1   Forte Law is committed to promoting and maintaining equality and diversity and to the prevention of discrimination and/or harassment in relation to all aspects of our business. 

   1.2   This policy sets out Forte Law’s obligations in relation to equality and diversity and how we intend to fulfil those obligations and promote and maintain equality of opportunity and diversity in everything we do.  In so doing we intend to meet the expectations of our clients, suppliers, employees and independent contractors (where applicable) and the Solicitors Regulation Authority and any other relevant regulatory bodies.

      1.3    This policy will be published on Forte Law’s website and made available to clients, suppliers, the Solicitors Regulation Authority and any other relevant third party upon request.  Upon request we can provide this policy in large print format or on audio cassette tape.

      1.4    This policy shall be effective from 6 August 2007

2.   MONITORING AND REVIEW

              Monitoring

      2.1   Forte Law will monitor the implementation of this policy on an ongoing basis to ensure that the principles and procedures set out in it are being effectively implemented by the practice and in any event a formal monitoring process shall be carried out and recorded in accordance with 2.2 below.

.

 

      2.2   We will monitor by reviewing on an annual basis the operation of this policy by careful consideration of whether all of our business activities over the preceding twelve months were compliant with it. In the carrying out of such monitoring we will give due regard to any complaints (including any expressions of dissatisfaction) with regard to any issue covered by this policy and any circumstances where Forte Law has identified any shortcomings in its implementation of this policy. We will use the monitoring process to identify and, where our resources allow, address any failure to implement this policy and best practice.  Forte Law will keep a written record of this formal monitoring process and of any action points identified as a result of it.

              Review

       2.3   Forte Law does not currently employ employees or engage independent contractors to provide any of its services to clients.  In the event that any decision is taken to employ or engage the services of any third party in connection with the provision of its services to clients we will review this policy and make such amendments as are appropriate to reflect the obligations of Forte Law in relation to such third parties and their own obligations to be aware of, promote and maintain Forte Law’s policy in relation to equality and diversity.

      2.4   Forte Law will review this policy on an ongoing basis to reflect changes in the law and guidance issued from time to time by the Solicitors Regulation Authority, the Law Society and any other relevant body and best practice (having regard to the resources available to us) for a sole legal practice committed to the principles of equality, inclusion and diversity. In any event this policy will be reviewed on or before 30 May 2013 and at least annually thereafter.

3.         KEY PRINCIPLES

 3.1       Forte Law will not in its dealings with clients, suppliers, barristers, other lawyers or any third party (including, to the extent  relevant, any future employees, partners, members or directors) discriminate, without lawful cause, against any person, nor victimise or harass them on the basis of any of the following protected characteristics or on the basis that (s)he is  perceived to have or associate with anyone having any of the following protected characteristics:

            a)   race or racial group (including colour, nationality and ethnic or national origins);

            b)   sex (including marital status, gender reassignment, pregnancy, maternity and paternity);

            c)   sexual orientation whether actual or perceived (including civil partnership status);

            d)   religion or belief;

            e)   age whether actual or perceived ; or

             f)  disability.

 3.2      Forte Law will take such steps and make such adjustments as are reasonable in  all the circumstances in order to comply with its duties under section 20 of the Equality Act 2010 (“the Act”) in relation to its clients or, to the extent relevant, any future employees, partners, members or directors of  Forte Law.

              

4.         EXPLANATION OF TERMS USED IN THIS POLICY

4.1      What is discrimination?

            Discrimination occurs when one person is treated less favourably than another is treated, or would be treated, in the same or similar circumstances without legitimate reason.

            Direct discrimination occurs when someone is treated less favourably than another person because:

·                     they have a protected characteristic,

·                     they are thought to have a protected characteristic or

·                     they associate with someone who has a protected characteristic.

Direct discrimination under the Equality Act 2010 (“the Act”) is defined as follows:

'A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others'.

This definition of direct discrimination applies to all protected characteristics. In relation to the protected characteristic of age, direct discrimination can be justified if it is a proportionate means of achieving a legitimate aim.

Separate provisions exist in respect of discrimination against a woman on the grounds of pregnancy or maternity (sections 17 and 18 of the Act).

            Direct discrimination also covers a situation where someone is treated less favourably than another person because they are thought to have a protected characteristic (discrimination by perception) or because they associate with someone who has a protected characteristic (discrimination by association).

            Indirect discrimination occurs when a policy or practice that applies to everyone particularly disadvantages people who share a protected characteristic. Indirect discrimination under the Act is defined as follows:

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

Indirect discrimination can only be justified if you can show that the policy or practice is a proportionate means of achieving a legitimate aim.

            Indirect discrimination had already applied to age, race, religion or belief, sex, sexual orientation and marriage and civil partnership. It has been extended under the Act to cover disability and gender re-assignment. It does not apply to pregnancy or maternity.

            Indirect discrimination can occur whether or not the person applying the provision, criterion, practice, requirement or condition intended to discriminate against the person or group of people affected.

            The term “without lawful cause” means that the discrimination has taken place in circumstances which are not dealt with under the following paragraphs in this 4.1.

          Discrimination arising from disability (section 15 of the Act)

Under section 15 a person discriminates against a disabled person if he/she treats them unfavourably because of something arising in consequence of their disability, and this treatment cannot be justified as a proportionate means of achieving a legitimate aim.

            If a person acting as either an employer or service provider did not know and could not reasonably have been expected to know of the disabled person's disability, then the unfavourable treatment will not amount to discrimination. However, the employer or service provider must do all you can reasonably be expected to do to find out if a person has a disability.

            Unlike direct and indirect discrimination, this form of discrimination does not require the use of a comparator to establish less favourable treatment.

4.2      What is the duty to make adjustments (section 20 of the Act)?

The Act consolidates and extends existing duties upon employers and suppliers of goods and services from the Disability Discrimination Act 1995 to make reasonable adjustments for disabled persons.

The duty is three fold:

·                     Where a provision, criterion or practice puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the person to whom the duty applies must take reasonable steps to avoid the disadvantage.

·                     Where a physical feature puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, the person to whom the duty applies must take reasonable steps to avoid the disadvantage.

·                     Where a disabled person would, but for the provision of an auxiliary aid, be at a substantial disadvantage in comparison with persons who are not disabled, the person to whom the duty applies must take reasonable steps to provide the auxiliary aid.

In relation to requirements where the provision, criterion or practice in question or the auxiliary aid required relates to the provision of information, 'reasonable steps' include making sure that the information is in an accessible format.

The duty referring to the provision of auxiliary aids only previously applied to premises and goods and services, but has now been extended to employment. More details about how the duty operates in the goods and services and employment contexts can be found in Schedules 2 and 8 of the Act.

4.3       What is harassment (section 26 of the Act)?

Harassment is defined in the Act as:

'unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual' .

Harassment applies to all protected characteristics except for pregnancy and maternity, and marriage and civil partnership.

The Act specifically prohibits three types of harassment:

·         Harassment related to a 'relevant protected characteristic'

·         Sexual harassment; and

·         Less favourable treatment of a service user because they submit to or reject sexual harassment related to sex or gender reassignment.

For harassment related to a protected characteristic, 'related to' includes where the employee or client being harassed has a protected characteristic or where there is any connection with a protected characteristic. 'Any connection' includes a situation where the employee or client being harassed has an association with someone who has a protected characteristic or where they are perceived wrongly as having a particular protected characteristic.

4.4       What is Victimisation (section 27 of the Act)?

Victimisation occurs when an employer or service provider subjects a person to a detriment because the person has carried out (or the employer or service believer  believes they have or may carry out) what is referred to as a 'protected act'.

A protected act is any of the following (section 27(2)):

·         bringing proceedings under the Act

·         giving evidence or information in proceedings brought under the Act;

·         doing anything which is related to the provisions of the Act;

·         making an allegation that another person has done something in breach of the Act.

The term 'detriment' has not been defined under the Act but it can be reasonably inferred that if an action has the effect of putting a person at a disadvantage or if it makes their position worse, such treatment will amount to a detriment.

The victim need not have a protected characteristic in order to be protected from victimisation under the Act; for example they could have been supporting a person with a protected characteristic who is making a claim. Claims for victimisation can only be brought by individuals and not groups.

4.5      What is a disability?

            A person has a disability if (s)he has a physical or mental impairment, which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities.

5.        IMPLEMENTATION OF THIS POLICY

           Forte Law will implement the key principles set out in 3. above in the following ways:

           a)   Forte Law will observe the key principles in accepting instructions from and all its dealings with clients and third parties;

           b)   In any circumstances where barristers or any third parties are to be instructed by Forte Law they will be instructed solely on the basis of their skill, experience and suitability (having regard to issues such as specialist expertise and cost) to undertake the work in question.  Forte Law will comply with a client’s request to instruct a named barrister (subject to our duty to discuss the suitability of that barrister for a particular type of work).  Where a client’s instructions as to the choice of barrister are discriminatory under the Act Forte Law will encourage the client to modify them. If the client refuses to do so, Forte Law will cease to act for the client.

          c)    All suppliers of services or products to Forte Law will be selected only on the basis of their suitability to supply such services or products and selection will not be discriminatory having regard to any of the protected characteristics set out in 3.1.

          d)    Forte Law will expect its suppliers of services and products and all third parties from whom it commissions services or products to be committed to the principles of equality and diversity set out in this policy and will not knowingly commission services or acquire products from  any third parties who engage in discriminatory practices.

          e)     Forte Law’s terms of business will state Forte Law’s commitment to meeting the needs of all of its clients.  The terms of business and Forte Law’s complaints policy and any other external policy will be supplied in large print format or on audio cassette tape on request.

          f)      Forte Law’s website has been designed to incorporate features which will make it accessible to persons with a disability.

          g)      In the provision of its services Forte Law will at all times:

                

·        Treat disabled people fairly, with respect and not less favourably than other members of the public unless different treatment can be justified on health and safety grounds or is otherwise justifiable

·        Consider in respect of the provision of services the accessibility of those services to the public and the reasonable adjustments which might be made to make such services more accessible, consulting with disability interest groups/organisations where relevant

·        Consider and where appropriate (having regard to Forte Law’s resources and the effectiveness and availability of any proposed adjustment), action any requests by disabled people for any reasonable adjustment to be made e.g. visiting clients at their own premises in order to take instructions, providing information in large print or on audio cassette tape.

  h)    In the event that Forte Law shall employ any person Forte Law will comply      with its obligations in the Act related to recruitment and employment.

6.     COMPLAINTS

         Forte Law is committed to the principles set out in this policy and their effective implementation and will do its best to resolve any complaints relating to any of the issues covered by this policy.  Any complaint should be addressed to:

         Pamela Forte

         Forte Law

         The Cottage

         Penmark

         Vale of Glamorgan

         CF62 3BP

         or sent by electronic mail to pamela.forte@fortelaw.co.uk.  Where possible, complaints should be made in writing but Forte Law will consider complaints made orally in circumstances where, by reason of a disability, any person would be disadvantaged by having to make a complaint in writing.  Forte Law will also make any other reasonable adjustment to its complaints procedure in order to make the process accessible to persons with a disability. A copy of Forte Law’s formal procedure for handling complaints will be made available upon request and can be supplied, upon request, in large print or on audio cassette tape.

FORTE LAW IS AUTHORISED AND REGULATED BY THE SRA UNDER SRA NUMBER 466875

With effect from 6 October 2011 recognised sole practitioners and recognised bodies are required to state on their websites that they are authorised and regulated by the Solicitors Regulation Authority (SRA). Pamela Forte is a solicitor and recognised sole practitioner authorised and regulated by the SRA under the name Forte Law (SRA number 466875). More information about Forte Law can be found in Forte Law's Terms of Business. More information about the SRA can be found on its website www.sra.org.uk.

PROTECTING IDEAS - IT'S A QUESTION OF CONFIDENCE

The article below was first published in ScreenDaily by Emap on 14 October 2010.

Don’t allow others to rip off your ideas when you can take some simple steps to protect yourself! Pamela Forte, media lawyer at Forte Law, offers some practical tips on safeguarding confidential information.

It shouldn’t happen but it does and we’ve all heard the stories. The producer, whose development pitch is rejected by a broadcaster, discovers twelve months later that the commissioner has set up his own production company and is developing a project suspiciously like the one she pitched. The company looking for co-production finance finds out that its former co-production partner is hawking its treatment round financiers following the break-down of negotiations. As a media lawyer, I’ve heard more of these stories than most and the question I am most frequently asked over a soggy bruschetta at media gatherings is ‘How can I stop someone else ripping off my idea?’

The short and truthful answer is you can’t. It’s a business risk which you can’t eliminate entirely. However, you can manage and reduce the risk by a combination of practical and legal measures.

The main difficulty in protecting ideas against copying and misuse is that there is no copyright in an idea. The law of copyright in England and Wales protects only certain categories of ‘works’ which have been recorded in some form rather than the ideas embodied in the work. A treatment may be protected by copyright as a literary work but this only gives the owner of it the exclusive rights to copy and exploit that particular literary work and prevent others from doing so. If another writer comes along and independently creates a new treatment based on the idea contained in the original treatment there will be no infringement of copyright.

So if your idea isn’t protected by copyright what legal protection do you have if someone walks off with it? In this situation your idea may be protected under principles of common law or equity which have evolved over time through decisions of the courts. Broadly, the law provides protection for confidential information which has been disclosed to third parties where two conditions are satisfied. The information must be inherently of a confidential nature and it must have been disclosed, expressly or impliedly, in confidence.

In the context of ideas and treatments for films there will generally be no problem with satisfying the first condition but in order to avoid any argument as to whether or not information was imparted to a third party in confidence it is best to ensure that, wherever possible, a confidentiality or non-disclosure agreement is signed before the idea is disclosed. As well as putting beyond doubt the fact that the relevant idea was disclosed in confidence, a confidentiality agreement creates a contractual obligation of confidence which, if breached, will give rise to an action for breach of contract.

How then, in practical terms, should you go about protecting your ideas? I suggest the following:

1. Make sure all ideas, treatments and outlines are recorded in writing and marked with an appropriate copyright notice in the form © [Name] [year]. All rights reserved. While the copyright notice isn’t essential for copyright protection in England and Wales and won’t serve to confer copyright protection on the idea embodied in the relevant treatment or outline, it does convey the message that you are serious about protecting your intellectual property.

2. Where the circumstances and your bargaining position allow, ensure that all third parties sign a confidentiality agreement before you disclose your idea to them. Realistically, major financiers and broadcasters are not going to sign confidentiality agreements prior to receiving submissions (and may indeed ask you to sign a submission agreement). This is understandable when you consider the number of submissions they receive and the risk that they will subconsciously copy an idea or develop an idea which, although original in the mind of its creator, is strikingly similar to another idea which may have been submitted and rejected. But when you can insist on it, a confidentiality agreement not only protects your legal position in the case of unauthorised disclosure of your idea but concentrates the mind of the person asked to sign it and demonstrates your professionalism in managing your intellectual capital.

3. Above all, take care that ideas, treatments and outlines are not disclosed more widely than is necessary to seek development interest/finance. It is far better to prevent confidential information from coming into the hands of third parties in the first place than to rely on legal remedies for its misuse!

Pamela Forte established Forte Law, a media and entertainment law practice, in 2007. Pamela previously worked for 16 years as an in-house lawyer at S4C where she gained extensive experience in film and television financing, production and distribution. Pamela contributes regularly to media and legal journals and is noted in Chambers Directory 2011 as a media and entertainment law expert.

Disclaimer: The points made above are intended as general guidelines and should not be regarded as a substitute for legal advice on any particular situation or agreement.

Copyright © Forte Law 2010. All rights reserved.

COLLABORATING ON FILM DEVELOPMENT – WHY TRUST DOESN’T COME INTO IT

The article below was first published in ScreenDaily by Emap on 1 March 2010.


Media lawyer, Pamela Forte of Forte Law, explains why trust is no substitute for a legally binding agreement when it comes to collaborating on feature film development material.

If I had a tenner for every time someone’s said to me “We don’t need an agreement – we trust each other” I could buy a small Caribbean island. And the area of film production where this occurs most frequently is in the development stage.

You know how it is. You may be a producer or director working in collaboration with a writer or another producer/director. You’re working together on a treatment/first draft script. You feel a tad uneasy about the copyright and rights situation but it’s not worth getting an agreement drawn up at this stage, is it? Plenty of time to sort out the legals when you get financiers on board and, hey, you trust each other don’t you?

I can never understand the logic of this. So the time to enter into an agreement is when you don’t trust each other? I’ve done both types and, believe me, the ones where the trust has gone out of the relationship take longer and hit your legal fees budget harder. Financiers and the money they bring to the table, welcome though they are, can often show up the cracks in relationships built on the most solid of foundations. At this crucial stage you don’t want to discover that the person you’re collaborating with has an entirely different view to you as to the direction the project should take.

Far from damaging trust, entering into an agreement before the collaboration commences builds trust. It ensures you and your collaborator are clear as to the expectations that you both have in respect of issues such as ownership of resulting copyright works and the basis upon which these may be further developed and/or exploited by you together or individually. Having an agreement in place before you approach a financier will also underline your professionalism and demonstrate your attention to legal detail.

Convinced? If so, what do you need to cover off in the agreement at this stage? Here are a few issues you might want to think about:

Ownership of any existing material. This might include any outline, treatment, etc.on which the collaborative work is based. Is it owned by one or both/all of the collaborators? Have any necessary rights been acquired from third parties?

Ownership of copyright in the resulting copyright works and the proportions which each party will hold. Copyright can be held in any proportions not just 50:50. Holding a nominal share of the copyright is a good way of ensuring that you won’t be cut out of the production at a later stage without acceptable terms being agreed.


Waiver of moral rights. Financiers will invariably require moral rights to be waived and it is preferable for the parties to agree specific contractual provisions in place of the rights comprised in moral rights.

Licence/consent to exploit jointly owned rights in specified ways. Where the copyright is jointly owned it may be useful for the parties to provide advance consent to specified forms of exploitation.


Rights of owner of any existing material to exploit that material in ways which do not compete with the collaborative work. For example, if the existing material is a play its author may wish to reserve the exclusive right to exploit live stage rights, radio rights etc.

Warranties and indemnities. (Originality, non-infringement of third party rights etc.)


Provisions which will apply if a film is produced based on the collaborative work. Depending on the nature and circumstances of the collaboration these may include provision for the parties to have an ongoing role in the production and a share of net receipts as these may eventually be defined in respect of the film. These provisions need to be drafted carefully to achieve the outcome of protecting the parties’ position while ensuring there is sufficient flexibility to meet financiers’ requirements.

So the next time you’re planning to proceed on trust alone just ask yourself - if you and your collaborator wrote down your expected position on the above issues would your answers be the same? Time to get your agreement down on paper?

Pamela Forte established Forte Law, a media and entertainment law practice, in 2007. Pamela previously worked for 16 years as an in-house lawyer at S4C where she gained extensive experience in film and television financing, production and distribution including structuring complex international co-productions involving treaty finance. In 2009 Pamela lectured on copyright and film related issues at Newport University’s International Film School and she contributes regularly to media and legal journals. She is recognised in Chambers Directory 2010 as a media and entertainment law expert.

Disclaimer: The points made above are intended as general guidelines and should not be regarded as a substitute for legal advice on any particular agreement.

Copyright © Forte Law 2010

DIGITAL BRITAIN - THE FIGHT AGAINST ONLINE PIRACY

The tide may have turned against online piracy in the UK. In its Digital Britain final report, published on 16 June, the government outlined proposals to legislate to achieve a reduction of 70-80% in the incidence of unlawful peer to peer file-sharing.

The government hopes this will stem the considerable losses which the creative industries claim they are suffering from unlawful access to digital content - allegedly £180m pa in 2008 for the UK music industry and £152m in 2007 in the UK for TV and films. But the proposals will place increased burdens on both rights holders and internet service providers (ISPs) which they and their legal advisers will need to consider.

Unlawful file- sharing is not the only form of online piracy but it is arguably the most damaging to rights holders because of the nature of the technology. Peer -to-peer file-sharing software allows files to be downloaded and disseminated across the file sharing community very quickly and its decentralised nature means that there is no central server which can be held liable for hosting or authorising the downloading of infringing material. Rights holders therefore have had to seek redress against individuals in respect of their unlawful uploading and downloading although in other jurisdictions cases have successfully focused on the operators of sites facilitating access to torrents hosted elsewhere – most recently in The Pirate Bay trial in Sweden, in which the four founders of the site were earlier this year sentenced to a year in prison and given a £2.4m fine.

The government has been forced to legislate to resolve the issue of illegal file-sharing because the voluntary memorandum of understanding between ISPs and rights holders, which it brokered in 2008, has not been effective in reducing the incidence of such activity. This is hardly surprising given the disparity of interests between the rights holders whose rights are being infringed and the ISPs, which are being asked to take action against their own customers. But this means that the carrot of self-regulation through a voluntary agreement will now be replaced with the stick of legislation.

The government proposes to place the media and telecommunications regulator, Ofcom, under a duty to take steps to reduce online copyright infringement. Specifically, it will be required to place obligations on ISPs to:

notify alleged infringers of rights (subject to reasonable levels of proof from rights holders) that their conduct is unlawful; and
collect anonymised information on serious repeat infringers (derived from the ISPs’ notification activities), to be made available to rights holders together with personal details on receipt of a court order.

The government is hopeful that most people who receive a notification will cease unlawful file-sharing. It has stated that existing evidence to this effect has been backed up by survey results, which found that significant numbers of people say they would stop or significantly reduce their file sharing activity upon receipt of a notification. The second limb of the obligation is intended to facilitate targeted court action against the “serious repeat infringers”.

The proposals have been given a lukewarm reception by many rights holders and their representatives, for whom they do not go far enough. They argue that file-sharing and the expectation of accessing free content has become so embedded in online culture, particularly among the young, that the mere act of notification, unless backed up by sanctions to prevent continued infringement, will not prove to be a sufficient deterrent. There are also concerns that, given the scale of unlawful file sharing, court action against individual 'serious repeat infringers' is impracticable in terms of time and costs and unlikely to have a significant impact on reducing the incidence of illegal file-sharing by the desired 70-80%.

Given that the majority of the individuals engaging in such activity are probably already aware that it is unlawful, the government’s optimism that notification will be effective does appear naïve. In addition, the proposals place the onus on rights holders to inform the ISPs in an agreed format and to provide 'reasonable levels of proof' of infringing activity. It may be that it will be relatively straightforward for rights holders to track downloads and obtain IP addresses from 'torrent swarms'to provide ISPs with the desired level of proof; but will they have the incentive to devote resources to doing s, if notification cannot be backed up by technical measures to restrict future infringement?

The government acknowledges that more draconian measures may be required, and proposes to take the unusual step of providing backstop powers for Ofcom 'to place additional conditions on ISPs aimed at reducing or preventing online copyright infringement by the application of various technical measures'.

Ofcom will be given the power to specify, by statutory instrument, these additional conditions which may include blocking access to subscribers through various means, capping the speed of a subscriber’s internet connection and/or the volume of data traffic which the subscriber can access (bandwidth capping), limiting the speed of a subscriber’s access to selected protocols/services and/or capping the volume of data to such services (bandwidth shaping), and/or content identification and filtering.

Ofcom’s backstop powers will be triggered only if, at the end of a period of 12 months from the date at which a code covering notifications and identification of serious repeat offenders became operational, there has not been a significant reduction in unlawful file sharing. The Government is consulting on the so-called 'trigger mechanism' but it is currently suggesting that it should be calculated by '(a) taking the number of unique individuals notified and (b) 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% the mechanism will be triggered.'

Rights holders will no doubt be quick to respond on this but it does seem incongruous that, having expressed its belief that measures to address the problem of unlawful file sharing need to result in a reduction of 70-80% in its incidence, the government has set the benchmark by reference to the percentage of those notified who have ceased file sharing. As the government itself points out in its illustration: 'If the baseline unlawful peer- to- peer universe identified by Ofcom was 100, and notifications were sent to 50% of that universe with prosecutions against serial repeat offenders, the benchmark would be met if there was a 35% reduction in unlawful file sharing i.e. 70% of 50%'. In fact, given the onus on rights holders to identify infringers and provide evidence to ISPs of infringement, it seems highly unlikely that notifications would be sent to 50% of the file-sharing universe. The number of notifications is therefore likely to be much lower with the result that a comparatively small overall percentage reduction in the incidence of unlawful file- sharing may look like a large one - and the 'trigger mechanism' for additional technical measures will not be activated.

In addition, 12 months is surely an unrealistically short timescale in which to expect to see an impact from court action against serious repeat offenders? Some rights holders have accused the government of 'digital dithering' arguing that it will have to put in place technical measures in any event and should do so now rather than lose another 12 months.

The proposed backstop powers pose a dilemma for rights holders. The government has signalled clearly that the backstop powers should be used only if notification by ISPs and the execution of legal action by the rights holders have been fully implemented, alongside other tasks the government considers to be the responsibility of rights holders. These tasks include educating consumers to respect copyright and evolving business models that provide attractive alternatives to unlawful file sharing. This is a considerable burden to place on rights holders who, to the extent that they are not represented by collective organisations, will vary in their ability to take court action against piracy and put in place the other expected measures. But if they do not, the government will hold back from imposing on ISPs the technical measures to address unlawful file-sharing for which many rights holders have been lobbying.

The tide may have turned against online piracy, but rights holders will still have a difficult course to steer in the year ahead.

Pamela Forte
Forte Law

The above article was first published by and is reproduced here by kind permission of the Law Society Gazette. It reflects the situation as at June 2009 and has not been updated to reflect subsequent developments.

Copyright (c) Law Society Gazette 2009.