ISPs and industry at odds over anti-piracy plan
Plans to halt the flood of illegal filesharing among British internet users have hit a major stumbling block after the government's consultation process failed to find consensus among ISPs, content owners and internet companies as to how to tackle the issue.
Internet companies and content owners alike dismissed the government's preferred option of an industry-wide code of conduct backed by Ofcom's oversight – nicknamed co-regulation – as either going too far or not being radical enough.
The flood of differing opinions received by the Department for Business Enterprise and Regulatory Reform (BERR), which were published yesterday, throws the spotlight firmly upon the Digital Britain review being carried out by Lord Stephen Carter.
The communications minister said earlier this week that one of the five major areas that his review, the first part of which will be published later this month, will cover is the creation of a "world-class regime" for intellectual property protection.
But the responses received by BERR, which carried out the exercise as a result of the Gowers review of intellectual property, show just what a difficult task Lord Carter faces in trying to knit together a workable scheme for protecting copyrighted material from internet pirates.
In its original consultation document the government's preferred plan was co-regulation, which consists of a voluntary code of practice dealing with the treatment of intellectual property, combined with "high level regulatory oversight" – probably by Ofcom. Underlying the plan is an obligation placed on the ISPs that they must work with copyright holders to tackle repeat offenders.
Announcing the publication of the responses to the consultation, BERR acknowledged that "there was a marked polarisation of views between the rights holder community and consumers and the ISPs over what action should be taken".
"There was a degree of consensus that any solution must involve the provision of new legal sources of attractive content and the need for education on the importance of copyright in the wider economy," BERR said.
The ISPs seem to have been particularly vociferous in their calls for the content industry to come to its own rescue by producing viable legitimate filesharing, streaming and downloading services.
In one of the most forthright submissions, Orange said it "does not accept that it has any existing legal obligation ... to assist in the enforcement of private legal rights", adding that it is a "mere conduit" – the defence upon which the ISPs have relied for some time.
"A fundamental flaw in the preferred regulatory option is that it seeks to cut the court – or any other independent review – out of the process and install the ISP as the arbiter of private rights as between the rights holders and users," it said.
"Orange fails to see how a proper regulatory regime could even contemplate the imposition of the costs of enforcing private rights on innocent third parties – namely ISPs and consumers – which would be a courageous political move."
BSkyB, meanwhile, said "an ISP is not and should not be the arbiter of whether the content accessed by their customers is lawful or not", it is up to the courts to decide.
Sky, which is the UK's fourth largest broadband provider, instead proposed that there be detailed evidence and analysis of the problem and then an education and awareness campaign. It also recommended "effective and concerted action" by rights holders against infringers through the courts, "supported where possible by ISPs" as well as the development of legitimate filesharing services.
The BBC had similar points to make. It said it "believes that it is only by a combination of steps including education and awareness and alternative, compelling legitimate services, as well as actions against the worst offenders (provided they can be correctly identified) that will overcome the problem".
In its submission, the BBC said it believes education and compelling services are the way forward but there must be a legal "backstop" although the broadcaster is "not minded" to support an entirely new raft of legislation.
"Instead, the BBC believes that by working together with a broad industry group including ISPs and other distributors of content, many of the problems facing the television industry can be addressed without the need for substantial new legislation?," it said.
The BBC also called for the scope of the government's investigations to be wider so that it includes user-generated content sites such as YouTube and MySpace where copyrighted material is often posted.
Unsurprisingly, the British Video Association – which represent the interests of publishers and rights owners of pre-recorded video home entertainment – said the government's plan should be strengthened so that the "underlying obligation" placed on the ISPs to protect copyright should be a regulatory requirement, to prevent any ISPs opting out.
"We are attracted to the underlying concept of co-regulation put forward by government," added the Motion Picture Association. "Voluntary agreements would have been preferred, but it is amply clear that there is no light at the end of that tunnel. Government intervention is required."
The BPI, which represents the UK music industry, said in its submission: "We have long held that it is the combination of informing consumers about the impact of copyright infringement, continuing to develop new digital music services and increasing enforcement against illegal activity which will be the most effective approach in tackling illegal filesharing."
Several of the rights holders suggested technical solutions to the problem of illegal filesharing. In its submission, however, BT shot these down, not least because some of them would breach data protection rules.
"There is no single silver bullet technique which could be applied to deal with the perceived peer to peer problem accurately and proportionately," BT said. "Applying a combination of techniques will not do so either. Unauthorised peer to peer filesharing of copyright material is fundamentally a market issue which needs to be addressed through a range of commercial means."
Richard Wray
Friday 16 January 2009 14.52 GMT
guardian.co.uk © Guardian News and Media Limited 2009
Plans to halt the flood of illegal filesharing among British internet users have hit a major stumbling block after the government's consultation process failed to find consensus among ISPs, content owners and internet companies as to how to tackle the issue.
Internet companies and content owners alike dismissed the government's preferred option of an industry-wide code of conduct backed by Ofcom's oversight – nicknamed co-regulation – as either going too far or not being radical enough.
The flood of differing opinions received by the Department for Business Enterprise and Regulatory Reform (BERR), which were published yesterday, throws the spotlight firmly upon the Digital Britain review being carried out by Lord Stephen Carter.
The communications minister said earlier this week that one of the five major areas that his review, the first part of which will be published later this month, will cover is the creation of a "world-class regime" for intellectual property protection.
But the responses received by BERR, which carried out the exercise as a result of the Gowers review of intellectual property, show just what a difficult task Lord Carter faces in trying to knit together a workable scheme for protecting copyrighted material from internet pirates.
In its original consultation document the government's preferred plan was co-regulation, which consists of a voluntary code of practice dealing with the treatment of intellectual property, combined with "high level regulatory oversight" – probably by Ofcom. Underlying the plan is an obligation placed on the ISPs that they must work with copyright holders to tackle repeat offenders.
Announcing the publication of the responses to the consultation, BERR acknowledged that "there was a marked polarisation of views between the rights holder community and consumers and the ISPs over what action should be taken".
"There was a degree of consensus that any solution must involve the provision of new legal sources of attractive content and the need for education on the importance of copyright in the wider economy," BERR said.
The ISPs seem to have been particularly vociferous in their calls for the content industry to come to its own rescue by producing viable legitimate filesharing, streaming and downloading services.
In one of the most forthright submissions, Orange said it "does not accept that it has any existing legal obligation ... to assist in the enforcement of private legal rights", adding that it is a "mere conduit" – the defence upon which the ISPs have relied for some time.
"A fundamental flaw in the preferred regulatory option is that it seeks to cut the court – or any other independent review – out of the process and install the ISP as the arbiter of private rights as between the rights holders and users," it said.
"Orange fails to see how a proper regulatory regime could even contemplate the imposition of the costs of enforcing private rights on innocent third parties – namely ISPs and consumers – which would be a courageous political move."
BSkyB, meanwhile, said "an ISP is not and should not be the arbiter of whether the content accessed by their customers is lawful or not", it is up to the courts to decide.
Sky, which is the UK's fourth largest broadband provider, instead proposed that there be detailed evidence and analysis of the problem and then an education and awareness campaign. It also recommended "effective and concerted action" by rights holders against infringers through the courts, "supported where possible by ISPs" as well as the development of legitimate filesharing services.
The BBC had similar points to make. It said it "believes that it is only by a combination of steps including education and awareness and alternative, compelling legitimate services, as well as actions against the worst offenders (provided they can be correctly identified) that will overcome the problem".
In its submission, the BBC said it believes education and compelling services are the way forward but there must be a legal "backstop" although the broadcaster is "not minded" to support an entirely new raft of legislation.
"Instead, the BBC believes that by working together with a broad industry group including ISPs and other distributors of content, many of the problems facing the television industry can be addressed without the need for substantial new legislation?," it said.
The BBC also called for the scope of the government's investigations to be wider so that it includes user-generated content sites such as YouTube and MySpace where copyrighted material is often posted.
Unsurprisingly, the British Video Association – which represent the interests of publishers and rights owners of pre-recorded video home entertainment – said the government's plan should be strengthened so that the "underlying obligation" placed on the ISPs to protect copyright should be a regulatory requirement, to prevent any ISPs opting out.
"We are attracted to the underlying concept of co-regulation put forward by government," added the Motion Picture Association. "Voluntary agreements would have been preferred, but it is amply clear that there is no light at the end of that tunnel. Government intervention is required."
The BPI, which represents the UK music industry, said in its submission: "We have long held that it is the combination of informing consumers about the impact of copyright infringement, continuing to develop new digital music services and increasing enforcement against illegal activity which will be the most effective approach in tackling illegal filesharing."
Several of the rights holders suggested technical solutions to the problem of illegal filesharing. In its submission, however, BT shot these down, not least because some of them would breach data protection rules.
"There is no single silver bullet technique which could be applied to deal with the perceived peer to peer problem accurately and proportionately," BT said. "Applying a combination of techniques will not do so either. Unauthorised peer to peer filesharing of copyright material is fundamentally a market issue which needs to be addressed through a range of commercial means."
Richard Wray
Friday 16 January 2009 14.52 GMT
guardian.co.uk © Guardian News and Media Limited 2009
