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UK Government Fails to Reach Illegal File Sharing Consensus

Posted: 16th Jan, 2009 By: MarkJ
The Department for Business, Enterprise and Regulatory Reform (BERR) has failed to find a universally agreeable solution to the issue of illegal online broadband file sharing (P2P) in the UK. None of the options highlighted in the consultation won widespread support, highlighted by a strong difference of views from all parties:

Minister for Technology, Communications and Broadband, Stephen Carter said: "I'm grateful for all the responses we received, which point to a consensus on the need to educate consumers about the economic importance of copyright material and the damaging effect file-sharing has on Britain's creative industries. We've also seen agreement on the need for legal content to be innovative, attractive and easily-accessible. And it's clear that consumers' concerns about data protection and privacy must be addressed."

He continued: "However, we received some opposing views on other issues - including regulation - reflecting the fact that this is a complex and challenging problem. We're now examining what the best way forward is and will set out the next steps in the interim Digital Britain report later this month."

It's understood that no ISPs were in favour of any regulatory solution (including co-regulation). Almost all suggested the way to deal with P2P was through the provision of legal offers, education and the use of the existing legal system to enforce copyright holders’ rights.

Several key issues were identified by respondents including copyright protection, protections afforded under eCommerce legislation and the impact on the wider economy. For almost all the options, questions were raised as to their legality under existing frameworks and views varied:

BSkyB: “Sky considers it fundamental to any solution that it is not imposed on ISP’s either through legislation or regulation. Any artificial interference with the business models of ISP’s is likely to jeopardise the development of the ISP industry and reduce incentives for investment in infrastructure etc.”

BT: "Unauthorised P2P filesharing of copyright material is fundamentally a market issue which needs to be addressed through a range of commercial means.”

Curiously the quotes offered by ISPs appear to portray an image of financial protection, when they should perhaps have been remarking more upon the technical and legal difficulties of enforcement. Trying to protect one’s own financial interests is all well and good but in public it doesn't portray the best or most accurate image.

Naturally rights holders were all united behind a government supported co-regulatory approach. This would not have required direct legislation, allowing ISPs and the creative industry to work together. However agreement over the form of such a system, especially how enforcement would be managed, appeared distant:

MPA: “We are attracted to the underlying concept of co-regulation put forward by Government. 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.”

BPI: “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 file-sharing.”

Fears were also raised by consumers over privacy and data protection. Significant concern focused on the reliability of the evidence of infringements (e.g. fake IP addresses etc.). Interestingly this issue was seen as a market failure and not a regulatory one:

Consumer Focus: “Consumer Focus does not condone illicit p2P filesharing but we see it as an inevitable consequence of [the content industry] failing to meet consumers needs. The market has filled the vacuum but in ways that do not involve or remunerate the content industry.”

Open Rights Group: “ORG would be keen to see legal sanctions against those who falsely accuse individuals of illicit P2P filesharing.”

Overall there was a clear opposition to the co-regulatory approach and little resolve for legal, privacy and technology concerns - not to mention cost fears. The government is now faced with a difficult quandary. Does it proceed to carry out its threat of legislation and go against the large number of opposing views or try to find a magical third way. Perhaps Lord Carters forthcoming report on the matter will highlight some alternatives.

We also noted several rights holders appeared to fear that last years Memorandum of Understanding between six of the UKs largest ISPs and the creative industry (news), where all parties agreed in principal to warning those identified as being involved in illegal downloading, would not be effective enough. This is despite several surveys indicating that most would stop their activity if warned.
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