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ShareDEA – Finally, time for some common sense!

Since the moment the DEA (Digital Economy Act) was passed, when it was hastily rushed through the ‘wash-up’ prior to the general election earlier this year, Entanet and other opposing bodies have been calling for a review. Yesterday the High Court finally announced that a judicial review has been granted.

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

The leaders of the DEA opposition have undoubtedly been BT and TalkTalk who jointly requested this review through the courts, arguing the bill was passed without proper scrutiny. Throughout the process they have been supported by a number of ISPs and wholesale communications providers including Entanet, aswell as organisations such as the Open Rights Group (ORG). Commenting on yesterday’s announcement TalkTalk’s Executive Director, Andrew Heaney, said:

“We are very pleased that the Court has recognised that our concerns about the copyright infringement provisions in the Digital Economy Act should be considered in a full hearing. The Act was rushed through Parliament in the ‘wash-up’ with only 6% of MPs attending the brief debate and has very serious flaws.

The provisions to try to reduce illegal file sharing are unfair, won’t work and will potentially result in millions of innocent customers who have broken no law suffering and having their privacy invaded.

We look forward to the hearing to properly assess whether the Act is legal and justifiable and so ensure that all parties have certainty on the law before proceeding.”

The review was granted based on three out of the four grounds outlined by BT and TalkTalk. The fourth is still pending a decision. These grounds were:

– The Government failed to notify the European Commission under the Technical Standards Directive.

– Provisions were not compatible with the E-Commerce Directive which provides that ISPs cannot be held liable for data going though their networks.

– ISPs have to deal with data that is not specifically permitted under the Privacy and Electronic Communications Directive.

– The fourth ground [Judge’s decision still pending] dealt with the disproportionate impact of the provisions on ISPs and in particular referred to the opinion of the European Data Protection Supervisor, Peter Hustinx. He concluded that generic three strikes regimes are a disproportionate measure.

So what will the review mean for the future of the DEA?

Well, it is important to remember that just because a review has been granted does not mean that anything within the Act will change. It could be the case that the judicial review finds the Act to be sufficient and lawful, in which case all the review will have achieved is to potentially delay the implementation process.

Of course we and many other opponents to the DEA are hoping that the judicial review will support our claims that it was passed without proper scrutiny and discussion with the Internet industry. If this view is supported it could mean the Act has to be revised.

Whilst ISPs and their supporters welcome this decision, unsurprisingly it has not gone down quite so well with the Act’s supporters. A spokesperson for the BPI has stated: “It’s disappointing that a couple of ISPs are trying to frustrate this and resist any action being taken to reduce illegal file-sharing on their networks. We continue to believe that their case is misconceived and will fail. The Act remains in full force and we will continue to work with government, Ofcom and other stakeholders to implement it.”

The Creative Coalition chair and Equity general secretary Christine Payne is also unimpressed by the ruling, adding: “the move may threaten the DEA legislation which is necessary to tackle copyright infringement.” She adds:  “We remain confident that the legislation contains all the necessary safeguards and is in keeping with EU law. The Creative Coalition continues to support the full implementation of the DEA and will continue to be closely engaged with this legal process.”

Once again, we want to be clear. ISPs are not trying to ‘resist any action being taken to reduce illegal file-sharing on their networks’ as claimed by the BPI. We simply have grave concerns over many of the key features of the Act. We agree that copyright infringement is an important issue that needs to be tackled but, as we have stated time and time again, identifying offenders by IP address is not accurate and could easily leave many innocent people open to improper prosecution. IP addresses can be spoofed and hacked. Secondly, we believe that disconnection or ‘suspension’ from the Internet is a disproportionate punishment for this offence. Thirdly, again as we have argued many times before, surely it would be more beneficial to all involved if the entertainment industry could find a way to embrace the Internet once and for all instead of continuing to fight against it.

Deborah Prince, Head of Legal Affairs at Which?, said: “Instead of challenging digital initiatives, it would be good if all stakeholders – rights holders, ISPs and the legal profession – came together to make the process of graduated response advocated by the Digital Economy Bill (DEB) work.

The DEB approach could benefit all concerned. Rights holders could get protection, consumers could get better education about file-sharing, and the courts could only be used for persistent offenders.”

We agree that this would be a great approach. A combination of adequate protection for the entertainment industry; coupled with education on the offence of copyright infringement and the legal alternatives that are available for consumers; plus a method of accurately identifying persistent infringers with proportionate punishments for them without adversely affecting innocent Internet users would be ideal. However it is proving very difficult for all stakeholders to achieve this as the entertainment industry and Government keep pushing for the current DEA to be imposed despite the obvious flaws. CPs and ISPs have been opposing it in order to protect their innocent customers, continuously highlighting these pitfalls to no avail – at least until now.

As yet no timescales have been released regarding the review, however Ofcom is expected to release its consultation conclusion later this week. Ofcom has been working to tight deadlines to develop a code of practice for the implementation of the DEA which, if it goes ahead in its current form, is expected to only affect ISPs with over 400,000 subscribers initially. It is widely expected that Ofcom will continue with their current plans for a release by the end of this week.

What about the forthcoming Intellectual Property (IP) review?

David Cameron recently announced plans to review the UK’s IP laws in order to “make them fit for the Internet age” and bring them more in line with the laws in America that he suggests “encourage creative innovation.”

Mr Cameron stated that the founders of Internet giants Google and Facebook had told him that “they could not have started their company in Britain” due to the strict IP laws we impose and suggested plans to relax the laws to allow “greater use of copyright material without the owner’s permission.”

He added: “Over there [in the US], they have what are called ‘fair-use’ provisions, which some people believe gives companies more breathing space to create new products and services. So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the Internet age. I want to encourage the sort of creative innovation that exists in America.”

Once again the entertainment industries are expected to oppose the reforms. A cautionary note was made by Chief Executive of the Publishers Association, Richard Mollet stating: “The Publishers Association will work very closely with the Intellectual Property Office during this six month review to ensure that rights holders’ interests are not regarded as an obstacle to creating Internet based business models, as some believe, but rather as the foundation of the UK’s world-beating creative, cultural and educational publishing industries.”

It is yet to be seen what the six month review period will discover and just how our IP laws will be updated to reflect the ‘Internet age’. After all, the last Government held a similar review to no avail as Mark Owen of media and entertainment law firm Hartbottle & Lewis reminds us: “The PM may be unaware, but his policy advisors should not be, that there have been countless expensive and quickly forgotten reviews of copyright in recent years and it is very unlikely that yet another one will achieve anything much other than waste large amounts of money and time.”

In conclusion, whilst we think it’s high time the DEA and the UK IP laws will be reviewed, we remain cautious. Agreement to a review does not necessarily mean that anything will change but at least we will be able to get our points across officially, at long last.

UPDATED: 15 November 2010

As explained in our article, the DEA review was originally granted based on 3 out of 4 grounds put forward by BT and TalkTalk. The fourth ground was still awaiting a High Court decision at time of publication, however this has now also been granted. The fourth ground dealt with the disproportionate impact of the provisions on ISPs and in particular referred to the opinion of the European Data Protection Supervisor, Peter Hustinx. He concluded that generic three strikes regimes are a disproportionate measure.

Unsurprisingly further opposition to the review has emerged from the Federation Against Software Theft (FAST) who have slammed the review stating “The underlying issue here is not that the Act was pushed through Parliament in the so-called ‘wash-up’ period, but that the ISPs are trying to use this as a fig-leaf for their own agendas,” and branding this “a last ditch attempt to protect their financial interests”.

It’s not surprising that this organisation is opposed to the review. However, we think that accusing ISPs of ‘having their own agenda’ and ‘protecting their financial interest’ is a little hypocritical as their opposition is quite obviously based on their own agenda, which is of course to stop copyright infringement. After all that is the purpose of this organisation. We agree that we all need to work together to tackle illegal file sharing but why should ISPs shoulder this responsibility? Yet again they are insistent on passing the buck back to ISPs, rather than realising that the entertainment industry needs to evolve, adapting its business models to embrace the opportunities of the Internet rather than demonising it. Talk about the pot calling the kettle black!

Have your say!

Do you also welcome the DEA review and the review of the UK IP laws? Or do you think the current laws are perfectly adequate and that these are just stalling methods by ISPs? Do you think the reviews will be successful or are you concerned that no reforms will be made? Let us know your thoughts by leaving us a comment below.

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