Digital Economy Act: Conversation Starters

Introduction:
Although the Digital Economy Act has a number of clauses, none is as contentious as the clause around protection of copyright content – the “Anti-Piracy” clauses. Mostly, the act seems to raise more questions than it answers as it seems to have been rushed through without adequate discussion or debate. Here are some of the key issues:

A. Anti-piracy Clauses
1. Unaccounted for:

What will be the impact on public Internet, provided by businesses, councils, educational institutions and internet cafes?
What about streaming copyright-infringing material, instead of downloading?
What about non-AV materials – like downloading scanned books? Where does the publishing industry fit into this structure? What about photographers, artists, etc.?
Where do the Google Books project and the Guttenberg Project fit under new copyright law?Are Google and Guttenberg management liable? Are downloaders liable?
Where do mobile broadband providers fit in?
How will cyber-locker sites be monitored for “substantial” copyright infringement? How will a sites-to-block list be created?
Is slowing down, suspending or cancelling subscribers’ internet access fair punishment?What additional fall-out could it have? How would this impact homes that subscribe to triple-play services?

2. Are there better ways to persuade subscribers to pay for content?

Newest Radiohead album released online, under a pay-what-you-want system, led to increased sales of other albums
Where has the money really been going?
[ see graph that will be handed out at the meeting]
2009 saw record singles sales in the UK. How does this fit in with the notion of rising piracy? (source )

3.       What’s the due process for subscribers sent warnings? Who makes a disconnection decision – OfCom, the ISP, or a court? How long does “temporary suspension” last?
4.       What’s the financing structure? The Act says 75% copyright owners, 25% ISPs – how does this get broken up across users accessing copyright infringing material from a variety of copyright holders, and through a range of ISPs?
5.       How will the draft ACTA (Anti Counterfeiting Trade Agreement) fit in impact the existing Digital Economy Act?
6.       Loopholes: subscribers turned “communications providers” immune from the law?
7.       Will mobile broadband providers and “small” ISPs are exempt, how will “small” be defined?
8.       How will the Act fare under a new Government?
9.       Fears have increased that law firms may home in on innocent web users who don't illegally download – how will these be checked?
10.     It’s a long way from creating to executing policy. What’s the next step from OfCom, or the government?
11.    Does the Digital Economy Act, which purports to make Britain a leader in the digital space, promote or facilitate the growth of new models and businesses?

Neither “broadband” nor “megabit” appear in the bill. Is broadband speed considered critical to facilitating digital business?
Does the Act facilitate conditions for new businesses, new industries and entrepreneurship?

A. Other Clauses
1. OfCom Powers – will these survive with a new Government? What are the implications around OfCome taking over

Spectrum management – re-pricing, reallocation, fines for operators who abandon or misuse spectrum
Oversight of Internet domain registration
Reporting on communications infrastructure and media content
Power to determine who gets access to which airwaves

2.       Digital Radio Switchover for 2015 – are we ready for this?
3.       Video Games age classifications – no sales of games rated 12+ to underage buyers. How would this impact games sales?
4.       Channel 4 to support “creative talent”, failure to do this could lead to fines.
5.       Public Lending Right to eBooks / Audio-books – every loan of an e-book or audio-book leads to a royalty payment for the copyright holder.

How it has played out in other countries:

US: Digital Millennium Copyright Act
Signed into law in October 1998, the DMCA extended the reach of copyright while limiting the liability of providers of online services for copyright infringement by their users. However, there is continuous and ongoing debate about net neutrality, the role of the FCC and whether the Internet should be seen as infrastructure or as information.

France: Hadopi Act
Passed in 2009, the French graduated response law has created a new French agency, Hadopi, to police the Internet and requires repeat offenders to appear in court to face punishment. Under a “3-strikes” system, French offenders receive two written warnings before legal action is taken. Repeat offenders can have their Internet access cut off for up to 12 months, and can be fined up to €300,000.

Under the proposed French system, private companies like Trident Media Guard or DtecNet Software ApS will monitor file-sharing websites, and determine when a computer is illegally downloading music or video, then pass the computer’s IP address to Hadopi. Hadopi will contact ISPs to get the client’s email address, and send him/her a warning. (NB: In the UK, OfCom has the job of coordinating the anti-piracy effort, but ISPs must send the warnings. OfCom will handle appeals, though the basis of dispute adjudication is unclear. ISPs could be fined for refusing to comply with requests to slow down / cut off users’ access.)

However, execution is still a problem. The government is yet to provide Hadopi with guidance on how the law should be applied. The French government says the first emailed warnings will be sent out in June. Meanwhile, the 10 Hadopi staff members sit in an office, awaiting instructions.

French law does not address key questions, such as how to handle violators using communal / public wireless connections. Nor does it answer who will bear the cost of antipiracy efforts. (NB: In the UK, it’s 75% copyright owners, 25% ISPs.)

Japan:
Despite the existence of a similar law for about a decade, piracy levels are about the same as in the UK.
(Source: Open Rights Group)

NZ: Graduated response law, with some differences:

Copyright Tribunal to hear cases and award penalties, up to 15,000, depending on extent of copyright infringement.
Account holders have the opportunity to address illegal file-sharing activity occurring on their connections before enforcement action is taken.
Account holders can challenge notices with the copyright tribunal

Source

Sweden: IPRED Law
Internet usage fell by 33%, and money spent on encryption increased, after a similar law was passed. (Source: Open Rights Group, BBC)

Australia:
In a landmark judgement by the Australian Federal Court, in a case filed by a group of Hollywood Studios against ISP iiNet, the court held that ISPs are not responsible for their users downloading copyright infringing material. The studios had alleged that iiNet was “authorising” copyright infringement by not warning or disconnecting customers against whom they (the studios) had provided evidence.
(Source: recent news from several sites)

Canada, Spain:
File-sharing and downloading of copyright infringing material for non-commercial use cannot be penalized under the law.
(Source: Wikipedia)

EU: Considering the ACTA global treaty