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Ofcom UK Says ISP Internet Copyright Infringement Code is Six Weeks Away

Posted: 06th Feb, 2011 By: MarkJ
pirate flagofcom ukThe UK communications regulator , Ofcom , has informed us that its controversial Code of Practice for tackling internet copyright infringement by file sharing (P2P) customers of broadband ISPs, which is a requirement of the Digital Economy Act (DEA), is now just six weeks away from being published.

The news emerged while we were seeking Ofcom's response to European Commission (EC) concerns over how the DEA's cost sharing legislation would impact ISPs (Internet providers are forced to pay 25% but gain nothing). The EC raised fears that the UK governments new Secondary Legislation on cost sharing (here), which is a statutory instrument, might not comply with Article 12 of the "Authorisation Directive" (2002/20/EC).

Last week an independent London barrister, Francis Davey, took a closer look at the EC's concerns and concluded that the new cost sharing legislation had potentially been "misdrafted" and "may also be unlawful" (here). Unfortunately Ofcom could not comment on the governments cost sharing consultation but they did say this.

An Ofcom Spokesperson told ISPreview.co.uk

"With regards to the Code, we are working through a number of procedural and process points with Government but we expect to publish it in the next 6 weeks."

The Initial Draft Code was first opened up for public consultation last May 2010 (here) and had originally been due to surface before the end of last year, although it was later delayed until March 2011 due to a multitude of issues (e.g. the Judicial Review and government cost sharing delays etc.).

Ofcom has yet to launch its own consultations on both the codes appeal process and cost sharing implementation, the latter of which cannot be done until after the new secondary legislation has been pushed through parliament. However the EC's concerns, which pointed out that cost sharing may not be "objective" because "[ISPs] do not appear to benefit in any way", could yet delay things. We also asked the Internet Service Providers Association for their thoughts on this (see more ISP reactions from last year).

Nicholas Lansman, ISPA Secretary General, told ISPreview.co.uk:

"[The] ISPA is concerned about the delays in implementing measures from the Digital Economy Act and believe this can be attributed to the lack of scrutiny and debate when the Bill was passed.

ISPA believes that ISPs should not be paying any costs towards notifying their customers about potential copyright infringement and administration of the appeals process. To maintain consistency with the established principle of beneficiary pays, rights holders should be responsible for all actual costs associated with this.

ISPA strongly believes that the Internet offers excellent opportunities for rights holders to access their target market with relevant lawful content without the significant costs associated with a non-digital environment and views the decision as contrary to the promotion of the digital economy."

On top of all this the International Federation of Library Associations and Institutions (IFLA), a body that represents the interests of 750,000 library and information services around the world, has also raised objections to the wider DEA (here).

Most recently the influential Taxpayers Alliance, which bills itself as Britain's independent grassroots campaign for lower taxes, has joined in to criticise the cost sharing proposals. To cap everything off the government has just ordered Ofcom to review the DEA's website blocking measures (here).

It might understandably seem quite strange to some that, at a time when the DEA is coming under such scrutiny, the act's cost sharing measures are still progressing. A wiser move would be to pause and wait for the outcome of the various legal and procedural reviews.
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