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If there is one thing the Digital Economy Bill has successfully created so far, its controversy. The Bill is still going through the reading stages of the House of Lords and yet every week it appears to spark a new industry argument. The latest being the addition of amendment 120A, which has united the Internet industry in its condemnation.

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

Lord Clement-Jones and Lord Razzall proposed the amendment as an alternative to clause 17, which originally awarded substantial powers to the Secretary of State, a fundamental area of concern for many within the industry.  We covered the concerns in detail in our earlier opinion article – Mandelson – New master of the digital economy? (Entanet Opinion: Mandelson – New master of the digital economy?). However the Lords’ proposed solution has sparked an equal amount of furious debate.

Amendment 120A could force ISPs to block access to websites where “a substantial proportion of the content accessible at or via each specified online location infringes copyright.” One of the main concerns is that this amendment provides the rights holders with an unfair bias in such cases. Now surprise, surprise we discover the proposal by the Lords was in fact sourced from the BPI (British Phonographic Industry)!

ISPA, The UK Internet industry’s trade association, has been particularly vocal about the amendment claiming that it has been “hastily constructed and rushed through at report stage without due consideration of the implications or consultation with the interested parties that would be affected. The many associated legal, technical and practical issues have simply not been debated in nearly enough depth. For a policy of such gravity, this is negligent.”

They go on to explain how Lord Clement-Jones is correct in his noting that the powers of Section 97A of the Copyright, Designs and Patents Act can already grant an injunction requiring ISPs to block access to sites that contain unlawful copyright content. However ISPA states that “97A strikes an appropriate balance between the interests of different parties and leaves the court free to consider each claim on its merits and independently of other factors.” They consider amendment 120A to introduce bias in favour of the rights holders and they claim “it limits the court’s discretion to judge each case on its merits.”

ISPA has also taken particular offence to the Lords drawing parallels between the network-level blocking administered in conjunction with the Internet Watch Foundation in order to tackle the extremely important issue of child pornography on the Internet; comparing this to the tackling of the civil issue of copyright infringement. This is quite obviously a preposterous comparison and this view is also echoed by TalkTalk.

TalkTalk has commented that the clause “…would force [ISPs] to restrict access to specific sites accused by rights holders of hosting material that infringed copyright”, adding “…making the restriction of websites a more widespread policy would be dangerous given its major impact on internet users’ human rights, freedom of expression and privacy. We fear it could also be a backdoor to censorship of the internet.”

We completely agree with TalkTalk and ISPA that amendment 120A should have been properly debated with all the parties significantly impacted by this amendment and our views have been echoed by many other CPs including BT, Orange and Virgin and a number of Internet firms (including Ebay, Facebook, Google and Yahoo) who have collectively submitted an open letter to the FT to express their concerns.

The letter states “This amendment not only significantly changes the injunctions procedure in the UK
but will lead to an increase in Internet service providers blocking websites accused of illegally hosting copyrighted material without cases even reaching a judge. The amendment seeks to address the legitimate concerns of rights-holders but would have unintended consequences that far outweigh any benefits it could bring.

Endorsing a policy that would encourage the blocking of websites by UK broadband providers or other internet companies is a very serious step for the UK to take. There are myriad legal, technical and practical issues to reconcile before this can be considered a proportionate and necessary public policy option. In some cases, these may never be reconciled. These issues have not even been considered in this case.”

It appears whilst attempting to solve the controversial issue of clause 17 the Lords have simply ignited a further debate. Whilst we agree with them that Clause 17 should be replaced and the Secretary of State should not have the proposed new powers, amendment 120A is far from a suitable solution. It simply raises even more issues.

Not only does it provide a potential bias in favour of the rights holders as many of the take down notices are unlikely to even make it to court, it also has a major impact on freedom of speech and creativity on the Internet and is potentially the first step along the rocky road towards censorship.  A road I am sure none of us would like to travel down, at least not without significant debate.

Most importantly of all, will this strategy even work? Will taking down websites that host ‘substantial’ amounts of copyrighted material actually stop copyright infringement – probably not! As always, those with the technical know-how will soon find ways to circumnavigate such strategies, whilst potentially innocent websites are punished. For example the new regulations could affect sites such as YouTube.

Once again we are drawn back into the age old argument that the best way to minimise copyright infringement would be for the entertainment industry to actually embrace the new opportunities provided by the Internet. Instead of fighting against the Internet by disconnecting people and taking down websites why don’t they develop new distribution models? A recent survey by Consumer Focus found most consumers do not know where they can buy music online – a problem which is contributing to the current high levels of online copyright infringement.

As Jill Johnstone from Consumer Focus said “The music industry is shooting itself in the foot by not promoting legal online music services. If file sharing is causing the damage the music industry claims, why aren’t they putting more effort in to promoting the legal alternatives?  Before we go down the enforcement road it is only fair to ask the music industry to do more to make people aware of the legal options.”

We completely agree and, at the risk of sounding like a broken record (excuse the pun), call on the entertainment industry to finally come to its senses.

A recent article by the BBC states that “The royalties that UK songwriters, composers and music publishers get from online sales are growing faster than the decline from CDs and DVDs”. This statement is based on the latest figures released by PRS for Music which show that UK online revenues for PRS for Music members rose by 73% to £30.4m in 2009. Whilst UK revenues from CD and DVD sales were down by £8.7m. So despite a 73% rise in online revenues, which I think most of us would agree is significant evidence of a growing market opportunity, the entertainment industry would still rather go through the courts – stripping people of their Internet access and taking down websites, why on Earth are they not seeing the opportunities the Internet could provide? Why are they not trying to cash in on this by actively developing and promoting their own legal distribution sites, competing with the likes of iTunes and Amazon? Obviously the limited success of Amazon, Apple and iTunes must be putting them off .

Have your say!

What do you think about amendment 120A and the ongoing feud between the entertainment industry and ISPs? Let us know your thoughts by leaving us a comment below.

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