Implementing the Digital Economy Act: Consultation

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Remember the Digital Economy Act? I thought you might. Sadly, the beast lives, and is slowly squirming its way to the sunlight. As part of its complicated birth process, Ofcom is conducting a consultation:

We are consulting on how Ofcom proposes to give effect to measures introduced in the Digital Economy Act 2010 ("DEA") aimed at reducing online copyright infringement. Specifically, we are seeking views on a code of practice called "the Online Copyright Infringement Initial Obligations Code".

The DEA gave Ofcom duties to draw up and enforce a code of practice ("the Code"). The DEA is very clear on how Ofcom should implement many elements of the measures, but where there is discretion the interests of citizens and consumers are central to Ofcom's approach. We propose a system of quality assurance reporting to ensure that where allegations are made against subscribers they are based upon credible evidence, gathered in a robust manner. We also propose that the independent appeals body, which Ofcom is required to establish, should adopt specific measures to protect subscribers during the hearing of appeals, including a right to anonymity.

There are various ways to respond, but Ofcom prefers its online form. I've used this, but for reference I've included below my replies to the questions that I think require some comment.

Question 3.1: Do you agree that Copyright Owners should only be able to take advantage of the online copyright infringement procedures set out in the DEA and the Online Infringement of Copyright and the Digital Economy Act 2010 Code where they have met their obligations under the Secretary of State’s Order under section 124 of the 2003 Act? Please provide supporting arguments.

There seems to me to be a danger that copyright owners might feel obliged to “use up” all their estimates if they must apply for them and pay for them in advance: might it not be better to charge them *after* they have used them?

Question 3.5: Do you agree with Ofcom’s approach to the application of the 2003 Act to ISPs outside the initial definition of Qualifying ISP? If you favour an alternative approach, can you provide detail and supporting evidence for that approach?

Yes: a key issue is the exemption for providers of Wifi access. Bringing them into the scope of the Act will have a devastating effects on a vast swathe of industries.

Question 3.6: Do you agree with Ofcom’s approach to the application of the Act to subscribers and communications providers? If you favour alternative approaches, can you provide detail and supporting evidence for those approaches?

No, this is neither fair nor workable. It is not reasonable to expect ordinary businesses or users to police the use of their Wifi networks, for example. The onus must be on the copyright holders to show exactly who was allegedly infringing on their content: narrowing it down to an unspecified user on a Wifi network is not good enough.

Question 4.2: Do you agree with our proposal to use a quality assurance approach to address the accuracy and robustness of evidence gathering? If you believe that an alternative approach would be more appropriate please explain, providing supporting evidence.

No, it is not “credible, effective and fair for consumers” when the copyright owners can self-certify in this way. Things are made worse by what looks like a total absence of penalties for inadequate standards, failure to meet reasonable ones or even outright fraud here: it gives content providers what is effectively carte blanche – hardly acceptable. It is clearly Ofcom's role to establish credible, independent standards, and to enforce them.

I find it extraordinary that Ofcom can write “it does not involve the setting of arbitrary standards that we are not in a position to understand.” Does Ofcom throw up its hands in despair over telephone technology? Hardly, it acquires the necessary skills and addresses the problem; it must do the same here too. This kind of competence lies at the heart of Ofcom: if it feels unable to cope with new technologies like the Internet perhaps it is time to create a new body to do so.

Question 7.1: Do you agree with Ofcom’s approach to subscriber appeals in the Code? If not, please provide reasons. If you would like to propose an alternative approach, please provide supporting evidence on the benefits of that approach.

There is one crucial element missing there: the ability of accused subscribers to examine the process whereby their alleged infringement. For that to be possible, copyright holders must detail how that was done, either by themselves, or their agents. In particular, it must be possible for experts appointed by subscribers to examine the precise technical methodology in order to establish its reliability. Without this, it would simply be a matter of accusation on the word of copyright holders and/or their agents – hardly fair.

The closing date for comments is 30 July, so you have a few days to mull things over before submitting.

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