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By: MarkJ - 3 August, 2011 (12:12 PM)
UK DCMS internet copyrightofcom ukThe UK governments Department for Culture, Media and Sport (DCMS) confirmed today that Ofcom's review into the viability of website blocking measures (original announcement), which was a key part of the controversial anti-piracy Digital Economy Act (DEA), has discovered that "the provisions as they stand would not be effective".

The act seeks to tackle "illegal" internet copyright infringement (piracy) through public P2P (BitTorrent File Sharing) networks by, among other things, imposing "technical measures" upon broadband ISPs (speed restrictions, service disconnection etc.) and issuing warning notices to customers when such activity is detected.

DCMS Statement

Ofcom was also asked to consider whether the site-blocking provisions in the Digital Economy Act would work in practice. The Act contains reserve powers to allow courts to order that websites dedicated to copyright infringement are blocked. The regulator concluded the provisions as they stand would not be effective and so the Government will not bring forward the Act’s site-blocking provisions at this time.

Ofcom's report appears to recognise that ISP's have no control to physically remove or block content that does not exist on their own network, at least not without halting all web (http) traffic. As a result any form of website blocking imposed by an ISP, which is often costly and technically difficult to achieve, would also be easy to circumvent (e.g. Proxy Servers, VPN, DNS changes etc.). However further research has been recommended.

The regulator has also published a second report on the "options for reducing possible costs of the online copyright appeals process". This references the process by which an ISP subscriber would be given the right to appeal if they felt that a piracy warning letter or service restriction had been sent or imposed upon them in error.

Sadly broadband users will now have to pay a fee of £20 to defend their innocence. On the bright side Rights Holders will still be required to pay most of the costs (75%) for the notification and appeals system, which now also includes the full setup costs.

DCMS Statement

The Department for Culture Media and Sport (DCMS) has also laid out the next steps for implementing the mass notification system in the Digital Economy Act. This involves letters being sent to internet account holders when their internet connection has been identified as linked to unlawfully shared copyright material.

The letters aim to educate people about copyright and point them toward legitimate content. They also seek to inform subscribers their internet connection may have been used by others to unlawfully share copyright material. For example parents may be unaware their children are using their internet connection to unlawfully share copyright material.

The Government has decided to introduce a £20 fee for subscribers wishing to appeal detected instances of unlawful sharing of copyright material they have been notified about. The fee will be refunded if the appeal is successful.

A report by Ofcom, which is published today, identifies a risk of the system being overwhelmed by vexatious appeals from people determined to disrupt the system. Government expects that a £20 fee should deter appeals without deterring genuine appeals.

The outcome could prove critical because IP address details, which are collected from public P2P networks where piracy often takes place, can be prone to error. An IP can at best, assuming the data isn't spoofed or out of sync with an ISPs database, only identify the owner of a connection and not individual users; especially on a shared local network (e.g. a library, business, hotel, public Wi-Fi network etc.).

Peter Bradwell, Campaigner at the Open Rights Group (ORG), said:

"The Government should be applauded for wanting to modernise our copyright laws by following the Hargreaves Review recommendations.

There are, however, some discordant notes in plans for the Digital Economy Act. In particular charging people £20 to appeal against copyright warnings is unfair. The evidence against alleged infringers is likely to be unreliable. The Government should follow the IPO's new IP crime strategy and rebuild its copyright enforcement policy from scratch, driven by evidence and a proper, public consultation."

An ISPA Spokesperson said:

"The commitment to press ahead with DEA implementation, despite the flawed evidence base underpinning it, is disappointing. Although ISPs will no longer be obliged to contribute to the costs of Ofcom and the independent appeals body in setting up and administering the regime, ISPA is still concerned that other costs, such as the 25 per cent towards notification of users as well as costs of implementation, will be a significant burden on them. These may be passed on to customers and deter digital inclusion.

It is not consistent with the beneficiary pays principle that rights holders, as the sole beneficiaries who have been lobbying hard for this for many years, should not be responsible for all costs associated with the system – including the appeals process for consumers.

ISPA strongly welcomes the conclusion of independent work by Ofcom which has found that the blocking aspects of the DEA are problematic and ineffective. ISPA has long argued that blocking is an ineffective and regressive means to address online copyright infringement. We are glad that Government has decided not to introduce web blocking measures at this time."

Creative Industries Minister, Ed Vaizey, said:

"It is essential that businesses have the right tools to protect their hard work and investment in the digital age. The UK’s creative industries are a key part of our economy but online copyright infringement poses a real threat to their continued success.

Our creative industries must be able to protect their products and the Digital Economy Act will help them do that."

The report follows just a few short days after the London High Court of Justice forced BT into using its child sexual abuse filtering technology, Cleanfeed, to block access to a pirate website known as Newzbin (Newzbin2). Many feared that this ruling would pave the way for all ISPs to impose website blocking.

In reality the illegality of Newzbin was already well established through the courts and so too was BT's use of Cleanfeed, which weakened their defence (here). As a result Rights Holders would still need to go through the courts if they wanted to see any additional sites blocked, a very costly process.

A BT Spokesperson said last week:

"The judgment makes it clear that rights holders wanting blocking orders about other sites will need to substantiate allegations against individual sites before the courts."

As it stands none of today's developments will stop ISPs and Rights Holders from attempting to establish a new Voluntary Code of Practice for blocking any internet website that is deemed to "facilitate" internet copyright infringement (here), which is despite Ofcom saying that such solutions aren't effective. However we do expect the final proposal to be watered down slightly, with possible exceptions for public networks (e.g. libraries) and stronger wording to ensure that only the most deliberately offending sites (i.e. not YouTube or Google) are targeted.
Ofcom's Website Blocking Review (PDF)

Ofcom's Cost Sharing Review (PDF)

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