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Archive for January 17th, 2009

UK.gov ‘to create anti-net piracy agency’

‘Rights Agency’ and new regulations to hit P2P infringement

By Chris Williams • Get more from this author

Posted in Law, 16th January 2009 12:49 GMT

Updated Following its failure to foster a voluntary solution between ISPs and rights holders, the government will create a new agency and regulations to clamp down on copyright infringement via peer-to-peer networks, it’s reported today.

A proposal for a body called the Rights Agency will be at the centre of anti-internet piracy measures, according to the Financial Times, which cited sources who had read a draft of Lord Carter’s report on Digital Britain. The Rights Agency will be introduced alongside a new code of practice for ISPs and rights holders, to be overseen by Ofcom, according to the leaked draft. The final report is due out by the end of this month.

ISPs will be required to tell customers when they are suspected of illegally sharing music and films, it’s reported. So far some major ISPs have trialled sending their customers’ copyright infringement notices in partnership with the record industry on a voluntary basis.

The new regulations will also reportedly force ISPs to collect data on ’serious and repeated infringers’ that they would have to make available to rights holders in possession of a court order. It’s unclear whether that means providers would be made to keep records of the content shared by committed filesharers.

There would be nothing new in requiring ISPs to keep logs of which customers are assigned which IP addresses when. That kind of data is already obtainable by court order, and has been used by rights holders to pursue alleged illegal filsharers. The vague reference to data collection is therefore likely to prompt concern from consumer advocates over potential monitoring of actual internet traffic.

The Department for Business, Enterprise and Regulatory Reform (BERR) said yesterday that its consultation on peer-to-peer copyright infringement had attracted polarized responses. The government has long been committed to a rearguard action against illegal filesharing, but has been trying to encourage ISPs and rights holders to agree a voluntary solution.

A BERR spokeswoman refused to comment on today’s report.

The creation of the Rights Agency will represent tacit admission of a failure of self-regulation. Figures from both the internet industry and rights holder organisations contacted by The Register today interpreted the leak as indicating the UK government intends to imitate the French’s new Hadopi copyright enforcement body. It remains very unlikely that sanctions against consumers accused of illegal filesharing will go as far as the full internet cut-off mandated by Hadopi’s ‘three strikes’ process, however.

The BPI, which represents record labels, said it had been working with ISPs to agree enforcement sanctions since the six largest providers signed a memorandum of understanding on illegal filesharing last summer. ‘We envisage that this work will result in voluntary deals, enshrined in a set of codes of practice underpinned by regulation,’ it said.

The Internet Service Providers’ Association (ISPA) said it was not aware of plans for the Rights Agency and could not immediately comment.

Separately today the IFPI, an international coalition of record industry bodies, said 95 per cent of music downloads are unlicensed. ®
Update

ISPA sent this statement:

ISPA is aware of rumours in the media today about Government plans for the creation of a new agency responsible for reducing illegal online file-sharing. ISPA understands that the Government is considering its options after it became clear that its preferred option as outlined in the recent consultation document was not supported by stakeholders. ISPA would expect a full consultation on any proposal for legislation from Government in this area and will comment when more details become available.

ISPA maintains that Government imposed regulation is unlikely to provide a satisfactory solution to this issue and believes that the emphasis should continue to be on educating the public about copyright and on developing alternative lawful distribution channels.

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

Slyck News – No Consensus Reached in UK P2P ‘Problem’

January 15, 2009, Thomas Mennecke

Last year in October, UK’s BERR, or Department for Business Enterprise and Regulatory Reform, published a consultation dealing with the P2P issue in the UK. The primary focus of the consultation had hoped that the warring parties, primarily the ISPs and copyrights holders, would come together and voluntary devise a solution and avoid government involvement. Today, it was announced that no voluntary agreement was reached.

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

Comments on the consultation were open to everyone, and a wide range of views were gathered. The ISPs tended to blame the market and poor variety of legal alternatives, while staunchly opposing government intervention. Although a ‘three strikes’ policy has been floated, ISPs and consumers appear opposed to this avenue.

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

The MPA (Motion Picture Association) likes the idea of co-regulation, whereby the ISP and rights holder works together, but clearly no progress has been made in such an effort.

‘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

Both consumers (who constituted 25% of the responses) and consumer rights groups were highly skeptical of co-regulation, the lack of transparency, and mistargeted assaults on innocent file-sharers. The Open Right Group had a particularly curious statement on the issue.

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

According to The Register, rights holders saw voluntary warnings as a failure. With no agreement reached, it’s possible the government may intervene and impose its own solution – which may unite everyone by making all parties unhappy.