The government's plans are set out in the report Digital Britain issued today, January 29, by the Department for Culture, Media and Sport and the Department for Business, Enterprise and Regulatory Reform.
The report covers a raft of issues relating to the UK's place in a global digital economy but sets out two main proposals to tackle peer-to-peer file sharing:
- legislation to require internet service providers (ISPs)to notify alleged copyright infringers that they are breaking the law if rights holders ask them to do so; and
- legislation to require ISPs to collect information on the unlawful web activities of serious repeat offenders if rights holders ask them to do so; rights holders will then be able to access that information with a court order.
The move potentially opens the door for rights holders to take direct legal action against those illegaly downloading files.
Introducing legislation is a harder line than the government had stated it hoped to take only last year.
At that time the government was clear that it wanted to educate users about unlawful file sharing while at the same time employing a regulatory light touch.
Indeed, the then Business Secretary of State John Hutton described it as 'an intelligent approach . This light-touch approach keeps up with the pace set by technology and will protect consumers, creative industries and the use of technology now and in the longer term.'
Part of that approach included a trial initiative whereby the UK's six biggest ISPs sent letters to customers whose accounts have been used for illegal downloading and file-sharing. The letters informed customers about the law and pointed to legal alternatives.
The approach also looked to ISPs and rights holders to work together to produce a code of practice on how they would deal with alleged repeat infringers.
At the time, the initiative was welcomed by the ISPs and rights holders in the film and music industries as a constructive step forward.
However after a subsequent consultation, the government announced that there was no across-the-board support for its proposal to support an industry code of conduct agreed by rights holders and ISPs. As a result it has been forced to change tack.
A spokesperson for BERR told ScreenDaily: 'We are not going to deny we have changed our mind, this was not our preferred approach.'
Balancing rights
Legislation requiring ISPs to collect and make available information on web activities related to illegal downloading could prove controversial.
The government's proposals come almost a year ago to the day that the European Court of Justice (ECJ) ruled that ISPS could not be obliged to release customers' personal data during civil legal claims raised by copyright owners.
The point was settled in a legal action taken by Promusicae, a Spanish musical and audiovisual producers' organisation, against the Spanish Telecoms giant, Telefonica.
The ECJ ruling in favour of Telefonica stated that current EU rules on intellectual property and the protection of personal data 'do not require the member states to lay down an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings'.
However, the Court did acknowledge that the ruling raised the issue of reconciling different fundamental rights - in this case, the right to respect for private life and the right to protection of property.
Consequently, it urged EU Member States to strike 'a fair balance' between the two.
Culture secretary Andy Burnham has acknowledged the work and potential problems that could lie ahead in achieving the reports goals:
'This is a significant report for the creative industries, taking steps to establish workable systems of copyright in an online age But it is only the beginning of the process and we need to work hard in the coming months to secure workable solutions.' Burnham said.
However John Woodward CEO of the UK film council welcomed the move and stressed his support for action that combats piracy:
'The film industry already loses millions of pounds a year through online film theft and today's announcement shows a real determination to get to grips with this problem for the first time. The fact that piracy is now at the top of the agenda will be widely welcomed by our industry and we now need to work with Government on the best way forward.
'Digital Britain is clearly going to offer massive commercial and job opportunities for people working in film and content production but if illegal downloading isn't halted then the upside for content owners and artists and ultimately for British audiences will be lost.' Woodward said.
Digital Britain is an interim report; the final report is expected before the summer.
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