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Back in April, news emerged of an alternative plan to the controversial Digital Economy Act’s original website blocking measure, which would result in a Voluntary Code of Practice for blocking access to websites deemed to facilitate Internet copyright infringement. Last week, the UK government’s Minister of Culture, Communications and Creative Industries, Ed Vaizey, held another one of his “private” meetings with representatives from ISPs and rights holders including the Premier League, the Publishers Association, the Motion Picture Association and music industry executives. Only one consumer group was asked to attend, Customer Focus, the statutory consumer champion for England, Wales and Scotland.

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

In the latest meeting it is understood an alliance of rights holders presented their latest working paper called ‘Addressing websites that are substantially focused on infringement’. The paper suggests that a council and expert body decide whether a website is ‘substantially focussed on infringement directly or by authorisation’ on the basis of evidence submitted by copyright owners. It is then suggested that the Application Court would be responsible for issuing a permanent injunction, which would require UK ISPs to block the infringing website.

The working paper, which allegedly came from the Rightsholder Group, was later leaked on the Internet after being sent to James Firth’s blog, who works as a data management consultant at Dalton Firth Ltd, and then published by the Open Rights Group.

The Open Right’s Group, which was refused entry to join the allusive round table meetings despite them requesting to attend in advance, argued “It is critical that policy making happens through a broad and open public debate, especially on matters that so tangibly affect rights such as access to information and freedom of expression. This is not simply about the rights of ‘sites that facilitate infringement’ or those running them. It is about the processes through which decisions are made about what you are allowed to see and do. Clumsy, quasi-judicial and unaccountable website blocking is dangerous for exactly that reason.”

Consumer Focus, which was allowed to attend the last meeting, also has serious concerns regarding the proposal: “The proposal requires changes in the Civil Procedure Rules 1 so that the Applications Court issues permanent injunctions on the basis of the advice given by a ‘Council’ and ‘expert body’. As such permanent injunctions would be issued by the Applications Court without a full trial. Consumer Focus is not able to support this proposal, and we believe the Ministry of Justice should be consulted”.

When we originally discussed this subject (Opinion.enta.net: DEA: The weaknesses of plan B), many ISPs called for an impartial judge to assess each case to ensure they were legally covered if website owners decided to sue. We agreed with them. However, it appears this request has gone unnoticed. As Consumer Focus puts it: “We do not believe that it is appropriate for two non-judicial bodies to broadly interpret existing case law, effectively establish new copyright law, and direct the Applications Court to issue a permanent injunction, without a trial”.

However one of the most worrying aspects is that they require the power to act quickly enough to deal with live events that are deemed to be infringing copyright, such as live streams of Premier League football matches. In this case, the documentation indicates ISPs would be responsible for blocking a domain to UK users in under two hours of the hearing being passed by the Applications Court. The idea of each case being thoroughly investigated seems questionable. Surely blocking live events whilst they are happening would mean the whole blocking process being rushed? If this is the case, it will inevitably lead to a site being wrongly accused and blocked. Who then protects the ISPs from being sued?

The fact the Code of Practice is referred to as “voluntary” is most confusing. The leaked paper still states the web blocking provision should be part of the Digital Economy Act under S17 and S18 stating: “…should nevertheless be implemented to be available if S97, CDPA [Copyright, Designs and Patents Act] is not held by a court to be an adequate provision for these purposes and to be available if the Proposed Voluntary Scheme ceased to operate for any reason or the Scheme did not apply to certain types of site.”

James Firth in his blog quite rightly comments: “The gist of the “voluntary” aspect of the scheme is that rights holders want ISPs to voluntarily submit to court jurisdiction over content blocking.  The paper calls for the guidelines to be incorporated into the Civil Procedure Rules – essentially defining the powers of the county court system. Quite simply, once established, it’s clear to me the scheme will be “voluntary” in name alone.”

On a related topic, it would appear the Motion Picture Association (MPA), which was part of the meetings discussing the “voluntary” Code of Practice, has filed an injunction against BT using Section 97A of the UK Copyright, Designs and Patents Act in a bid to block access to a newsgroup called Newzbin2. The MPA are said to have brought action against BT simply because it is the largest ISP in the UK, who already have the blocking technology in place, called Cleanfeed. If successful, this case could spell trouble for many ISPs who will be expected to follow suit, especially for those who do not currently have the technology in place.

Even from the leaked working paper we see no signs of the costs associated with the proposed plan being considered. Not only is there the cost to ISPs for permanently blocking the websites in the first place but also for the systems that would need to be put in place to enable it to happen (BT’s Cleanfeed is said to have cost £500k to develop). Surely ISPs can’t be expected to foot the bill for this, especially when it is only the rights holders who will gain any benefit.

Of course as we have said before, simply blocking the websites thought to be infringing content copyright may not be enough. It’s almost impossible to develop filters that can’t be circumnavigated in some way. If persistent offenders want the content that badly, a filter is not going to stop them. Physically removing or blocking content that doesn’t exist in our own network is also impossible and something that ISPs have no control over.

We believe more research and planning needs to take place before this proposal is finalised. The meetings need to involve the right people if this policy is going to be a success. Simply inviting one consumer group to one meeting is neither fair nor acceptable.

Have your say!

What do you think to Ed Vaizey’s proposed blocking measure? Do you think it is yet another ill thought out plan to try to combat sites conducting copyright infringement, or do you believe this is the best solution? Let us know your thoughts by leaving us a comment below.

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