P2P Filesharing – responses to the consultation – BERR

None of the options highlighted in the consultation won widespread support. Rather there was a marked polarisation of views between the rights holder community and consumers and the ISPs over what action should be taken.

A number of key issues were identified by respondents including copyright protection, protections afforded under eCommerce legislation and the impact on the wider economy. Consumers (individuals and consumer organisations) in particular highlighted concerns over data protection and privacy. The role of technology was addressed by most respondents, however there were conflicting views as to whether it could offer all or part of any solution. For almost all the options, questions were raised as to their legality under the existing legal frameworks and again, views varied.

There was a degree of consensus that any solution must involve the provision of new legal sources of attractive content and the need for education on the importance of copyright in the wider economy.

A number of replies suggested alternative models to those options proposed. Copies of all non-confidential responses received have been placed on the BERR website.

We have illustrated this summary with quotes from relevant responses. These are included for illustrative purposes only to help demonstrate the key issues raised and the main points of contention. They should not be taken as representative of the responses as a whole; nor should they be assumed to be indicative of the Government’s position.
ISPs

No ISP was in favour of any regulatory solution (including co-regulation). Almost all suggested the way to deal with P2P was through the provision of legal offers, education and the use of the existing legal system to enforce copyright holders rights.
Quotes:

‘Unauthorised P2P filesharing of copyright material is fundamentally a market issue which needs to be addressed through a range of commercial means’ – BT

‘Sky considers it fundamental to any solution that it is not imposed on ISP’s either through legislation or regulation. Any artificial interference with the business models of ISP’s is likely to jeopardise the development of the ISP industry and reduce incentives for investment in infrastructure etc.’ – BSkyB

‘[imposing costs on ISPs] a tax on the legitimate internet use’ – Orange
Rights holders

Those rights holders that have participated in the MOU process are firmly behind the co-regulatory approach, seeing ISPs as needing to take some responsibility for copyright infringement on their networks. Others were also generally in favour, though sometimes concerned to have been excluded from the process, and over the potential for a 2-tier system with small ISPs being relived of needing to adhere to the Codes of Practice. Some responses to the consultation were in favour of streamlining the legal process to enable personal information to be passed directly from ISPs to rights holders. However, the Information Commissioner expressed concern about any move in that direction.
Quotes:

‘We are attracted to the underlying concept of co-regulation put forward by Government. Voluntary agreements would have been preferred, but it is amply clear that there is no light at the end of that tunnel. Government intervention is required.’ – MPA

‘We have long held that it is the combination of informing consumers about the impact of copyright infringement, continuing to develop new digital music services and increasing enforcement against illegal activity which will be the most effective approach in tackling illegal file-sharing.’ – BPI

‘The origin of the BBC iPlayer which utilises P2P technology was a desire to offer a compelling and legitimate on demand service by harnessing the technological benefits of P2P technology.’ – BBC
Consumers and Rights Groups.

Serious concerns were raised over privacy and data protection. Significant concern focused on the reliability of the evidence of infringements. This issue was seen as a market failure and not a regulatory one. No support for the co-regulatory option; again education, legal offers and the enforcement of existing rights were identified as the way forward.
Quotes:

‘It is important that any educational campaign is not focused on the commercial interests of any party, rather that it promotes a balanced message carefully outlining the key facts, risks and also legal ways of sharing music online.’ – Childnet

‘Consumer Focus does not condone illicit p2P filesharing but we see it as an inevitable consequence of [the content industry] failing to meet consumers needs. The market has filled the vacuum but in ways that do not involve or remunerate the content industry.’ – Consumer Focus

‘ORG would be keen to see legal sanctions against those who falsely accuse individuals of illicit P2P filesharing.’ – Open Rights Group
Individuals

Over 25% of responses were from individuals. There was no support for a co-regulatory regime with concern raised over privacy and data protection. There was widespread doubt over the ability to solve the issue via technology.
General

Respondents not involved in the MOU process voiced serious concern over the lack of transparency. Many felt unable to fully comment due to a lack of detail in the consultation proposals. Another common theme was the need for a proper impact assessment and CBA before any decision to regulate. There was also some disagreement about the ability of technical approaches to tackle the problem effectively.
Quotes:

‘We are extremely confident in our view filters are not capable of doing this [accurately checking copyright status and distinguishing between lawful/unlawful transactions.’ – LINX

‘The assumption that false positives are inevitable is inaccurate. Audible Magic’s proven fingerprint technology currently achieves a demonstrated level of zero false positives.’ – Audible Magic
Response by HM Government

The Government will respond to this consultation as part of the interim ‘Digital Britain report’ due to be released later this month. More details on the Digital Britain Report can be found at:

http://www.culture.gov.uk/what_we_do/broadcasting/5631.aspx

January 2009