DIGITAL BRITAIN – WHY THE GOVERNMENT’S PROPOSALS TO TACKLE ONLINE PIRACY ARE DOOMED

Well-intentioned they may be but the Government’s proposals to tackle online piracy are unlikely to achieve its objective of reducing unlawful peer to peer file sharing by 70-80%.

The Government proposes to legislate to require Ofcom to impose obligations on ISPs to:

“notify alleged infringers (subject to reasonable levels of proof from rights-holders) that their conduct is unlawful; and
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.”

Perhaps in anticipation of criticism from rights-holders that these proposals do not go far enough, the Government has proposed that Ofcom be given backstop powers to impose further obligations on ISPs to put in place technical measures aimed at preventing or restricting unlawful file-sharing. These might include blocking, bandwidth capping or shaping and content identification and filtering. The Government will be consulting on the “trigger mechanism” by which these backstop powers will become exercisable. In essence, it is suggesting that if, at the end of the period of 12 months after which the Ofcom code imposing the notification and data collection obligations on ISPs is operational, 70% of infringers who have received a notification have not ceased the infringing activity, the backstop powers should be used.

Good news for producers, broadcasters and other rights holders then? It may appear so but rights holders need to peer beyond the surface and check out the icebergs beneath.

Identifying infringers and gathering evidence are pre-requisites for the notifications on which the rest of the proposals hang. In its consultation paper “Copyright in a digital world – What role for a Digital Rights Agency?”, issued earlier this year, the Government itself acknowledged “To identify an infringer might well require examination of computers. There are considerable difficulties in identifying downloaders where, for example, illegal downloading has occurred at an internet café or other area where there is public access. In the P2P area for example, infringement is established on the basis of identifying the IP address of uploaders not downloaders”. In the same consultation the Government states “The standard of evidence required from rights holders should be as high as can reasonably be demanded.”

How many rights-holders will have the resources to identify infringers and gather evidence to the standard required? And will they want to if the only outcome is a letter notifying infringers that their conduct is unlawful (a fact of which many accessing sites with names like The Pirate Bay can hardly be unaware)?

Enforcing the second limb of the proposals regarding “serious repeat infringers” (however this may be defined) is even more burdensome with rights holders facing the prospect of financing two sets of court proceedings - one to get a court order for disclosure of identity from the ISP and another for infringement of copyright. As the Government itself stated in the consultation mentioned above, “the cost of bringing an action can run into thousands of pounds very quickly, with estimates in the region of £6k-£10k having been quoted at various times by rights holders”. And surely the determined infringer against whom the proposals are aimed will be able to circumvent the data collection measures by frequently changing IP addresses or ISPs?

Some rights holders will no doubt be thinking that all they need to do is sit tight for 12 months and await the inevitable failure of the notification and data collection measures. The Government will then have to activate the backstop powers to force ISPs to address the issue through the technical measures, right? Wrong. The Government has made it very clear that the backstop powers will be introduced only if the notification and data collection proposals have been fully implemented by rights holders and ISPs along with other measures which the Government expects rights holders to initiate such as consumer education and new business models. Rights holders appear to be between a rock and a hard place – if their pockets aren’t deep enough to fund the identification of and court actions against infringers and consumer education and they don’t embrace new business models they will forfeit the technical measures which some think offer the only real prospect of reducing the impact of unlawful file sharing on the content industries.

And shouldn’t rights holders be asking why, if the Government wants to reduce unlawful file sharing by 70-80%, it would be satisfied with a 70% reduction in unlawful activity limited to those who have been notified. The Government has clearly suggested this for ease of measurement but given that the number of persons notified will, in practice, be likely to represent a very small percentage of the UK unlawful file-sharing universe, it leads to the anomalous situation where a minimal reduction in the incidence of unlawful file-sharing overall (as opposed to those notified) would justify the Government in declining to impose further obligations on ISPs.

The consultation which the Government plans to issue on the proposals may be the last chance for producers, broadcasters and rights holders to shape policy in this key area – they should not miss the opportunity to respond.

Pamela Forte is a lawyer and founder of niche media law practice Forte Law which advises producers, broadcasters and individual talent. She is a visiting specialist lecturer on copyright and rights related issues at the International Film School, Wales and on Newport University’s creative sound and music course.

© Forte Law 2009

This article was first published by Emap (Broadcast) on 26 June 2009.