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Digital Economy Act is proving hard to follow with real prog

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Post » 16 May 2011, 13:28

From: ... t-progress
A year on from its parliamentary approval the Digital Economy Act leaves a lot to be desired, reports Jemima Kiss

If rights holders of the UK's film, TV, music and book industries had hoped the Digital Economy Act (DEA), which aims to tackle illegal file sharing over the internet, might be a magic bullet to cure the plague of copyright infringement, they will be sorely disappointed by the progress made over the past 12 months since the act came into force.

Following the approval of the act by parliament in April last year, the design of the act, which allows rights holders to gather information on internet users they believe have infringed their copyright and then request information about those users from the relevant internet service provider (ISP), meant media regulator Ofcom has had to consult and devise regulatory codes that will determine how the act operates. For instance, what level of evidence does the rights holder need to demonstrate before an ISP notifies a user that they are infringing copyright?

Combined with a judicial review brought by ISPs BT and TalkTalk, who argued that the act infringed internet users' "basic rights and freedoms" and had received insufficient parliamentary scrutiny, this has hindered its implementation so much that even supporters, such as the chief executive of the Publishers Association, Richard Mollet, concede that there have been few visible results.

"It would have been better if rights holders and ISPs had greater clarity about what was required," says Mollet. "What we have had instead is a year of consultation on yet further regulation. It has taken a very long time to implement."

The campaign against the act has been small but very vocal, accusing rights holders, such as the British record industry body the BPI and Publishers Association, of a King Canute-like attitude to consumer behaviour. Indeed, TalkTalk's executive strategy director, Andrew Heaney, describes the DEA as "a dog of a bill" and says it should be scrapped completely.

"It's not going to work because people will still find a way round it," says Heaney. "The world has changed through the internet, and you can't stop people sharing music and films. You can't police the internet like you can police bootleg CDs at a car boot sale. This act is trying to solve yesterday's problem." And despite losing the judicial review, Heaney contends that "nothing the judge said has changed our view ... we will look at appealing".

TalkTalk has been quick to say that challenging the DEA was a decision made for the benefit of customers. "We got involved because nobody was standing up for customer rights. It's a shame the government didn't take those into account when they drafted the legislation in the first place." Those concerns include extra costs for customers, who are likely to pick up the shared administrative cost of ISPs sending enforcement letters, as well as letters sent to the owners, rather than individual users, of accounts that have been identified for copyright infringement. Heaney also says he is confident that the EU will "have serious things to say" about the DEA when it moves to review it.

"There are two things you can do to make people pay," says Heaney. "One is to educate them, and make them aware that copyright infringement is not a victimless crime – that if they don't pay, then film, music and books just won't be as good. The second is to support innovative, attractive paid services, such as Apple's iTunes store. The emphasis has to be on the carrot and not on the stick. All this act does is try to sustain the old, arcane way of doing things."

But Mollet says it is wrong to describe copyright infringement as an inevitable rising tide. "The thrust of the legislation is one that will help ISPs' customers, making it easier to search for legitimate content without being encumbered by illegitimate content or getting the malware and viruses that go with P2P [peer-to-peer] files." He cites research which shows that warning letters reduce repeat offences, and says many of the campaigners' arguments against the act are disingenuous.

"What it boils down to is a refusal to work with rights holders to do something about copyright infringement, though this should be a joint enterprise. The judgment of the judicial review was unequivocal. I'd be surprised if BT and TalkTalk's legal team saw any chinks of light to make them think it was worth pursuing an appeal. They'd be better off starting to work with rights holders to make the act work."

For many of the traditional creative industries, pressure to stem that tide of copyright infringement comes from the declines in their businesses. "We are already seeing the effects this is having on investment in recorded music in the UK," said Adam Liversage, communications director for the BPI. "Fewer British acts broke through in 2010 compared with recent years, and as revenues fall, A&R spend [which identifies new talent] – sustained in the face of the piracy challenge – is now under threat. This will ultimately lead to less consumer choice, not more."

Graham Hann, media and technology partner at law firm Taylor Wessing, shares industry concerns about striking the right balance. "I wouldn't argue that we don't need changes to improve protection for rights holders," he says, "but the DEA could effectively require ISPs to be judge and jury. How is an ISP to know whether a reported incident is in fact an infringement? In practice ISPs are likely to be forced to treat all reports as valid, giving significant power to rights holders." But equally, Hann notes that "the TalkTalk ruling says it all: we don't yet have new law – we only have a set of broad principles. Not only that, but the code of practice requires approval by the EU."
It seems that all concerned with the DEA may be in for a long wait for some much needed clarity.
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