UPD Internet Piracy Tackling Digital Economy Act Delays Implementation to 2014

The UK governments Department of Culture, Media and Sport (DCMS) has confirmed that its still highly controversial Digital Economy Act (DEA), which seeks to tackle “illegal” internet copyright infringement (piracy) by broadband ISP customers, won’t be implemented until 2014 (assuming it ever gets implemented).

It’s now two years since Ofcom first published its Draft Initial Obligations Code of Practice, which followed shortly after the act was officially passed as part of the notoriously rushed wash-up (closing) stages of the previous Labour Government (held between April-May 2010). It was originally due to be implemented by Spring 2011 but that date soon came and went.

Since then the DEAct has faced repeated legal challenges by ISPs BT and TalkTalk (here), concern over costs (ISPs have to help pay for it), damage from other legal rulings in the copyright space (e.g. here, here, here and here) and not to mention a vast swathe of opposition from various different political and non-political groups or individuals alike. To say the act is embattled would be an understatement.

At the last count DCMS’s Monthly Structural Reform Plan for January 2012 still said: “Improve the protection of copyright material online including, where appropriate, implementing relevant provisions of the Digital Economy Act (due to complete Jan 2012)“. At the time it was marked “Complete” but that now seems not to be the case.

According to The Register, the new 2014 date was revealed by civil servant Paul Kirkman (replacement for Comms Minister, Ed Vaizey MP, whom had been delayed by a traffic accident) during Monday’s Creative Coalition Conference in London; a sort of tea party for copyright holders and policy discussions.

The act itself hopes to impose a series of new “technical measures” upon broadband ISPs, such as speed restrictions or account disconnection (“suspension“), and also intends to issue warning letters to customers when piracy activity is detected on their connections. Repeat offenders could also have their details shared with Rights Holders for further legal action.

Given the fallibility of related evidence (IP address based tracking), as debated in a number of recent court cases (i.e. at best only the connection owner is identified but most home/business/public networks are shared), it’s easy to understand why the act has faced so much criticism (i.e. it could easily end up affecting innocent people and vital services). An appeals process was proposed but you’d have to pay for that and in any case, how do you defend yourself in what, for most people, would be a technical nightmare to fully comprehend and one that is often without evidence for a defence?

As it stands today the DEAct’s fate is still very much up in the air but it hasn’t been completely abandoned, yet. Meanwhile the forthcoming Communications Bill green paper, which was due to surface two months ago but has once again been held back, now looks set to propose some new anti-piracy measures of its own (details). A much discussed voluntary website blocking code is one of the solutions likely to surface (because mandatory web blocking doesn’t work).

UPDATE 26th April 2012

The CTO of Timico UK, Trefor Davies, has revealed some more details after the ISPA was officially updated by Ofcom.

Trefor Davies, Timico’s CTO, said:

* First notices are expected to be sent out Q1 2014 (At last year November’s ISPA conference, Ofcom said spring 2013)

* The code has been sitting with government for some time which is the reason for the delay

* The costs Statutory Instrument has to be amended following Judicial Review verdict – Ofcom & ISP set up costs are now to be paid for by the Rights Holders

* Once agreed by government, code has to be notified to the Commission (3 month period), then go to parliament for approval

* Ofcom can then look at tariff setting (cost of implementing code requirements), followed by time for ISPs covered by the code to install necessary kit, etc.

* Then costs need to be agreed with rights holders and, finally, an appeals body will be set up.

So there you go. It’s still a fairly long way away until the first implementation of the Act but there is going to be plenty of other heated debate en route – surveillance/Intercept Modernisation Programme and Claire Perry’s porn blocking initiative – and who knows what else might happen in the meantime.

So it looks like the code is still proceeding, although putting it on the backburner could also be seen as a somewhat tactical move that would help to keep it out of the news until a more suitable time.