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As members of ISPA (Internet Service Provider’s Association) we thought it would be very useful to gather the industry association’s thoughts on some of the latest issues to affect our industry. Nicholas Lansman, ISPA Secretary General, therefore discusses three of the most controversial issues that have been announced over the summer and explains how these issues may affect ISPs.

Nicholas Lansman, ISPA Secretary General

Nicholas Lansman, ISPA Secretary General

1. Newzbin2 decision – blocking is not a silver bullet
Three announcements were made over the summer with implications for ISPA members. The first announcement was the landmark decision by the High Court in the UK ordering BT to block access to the Newzbin2 site. The site makes unlicensed film, music and applications available to its subscribers.

The Motion Picture Association (MPA) brought the case to court and the judge ruled that BT had actual knowledge of other persons using its service to infringe copyright and can therefore be required to block access.

The case may have implications for the interpretation of the E-Commerce Directive which gives ISPs protection under the “mere conduit” defence. It also demonstrates that rights holders will need to prove their claims and convince a judge to make a blocking court order in the future and may call into question the voluntary blocking schemes that are being proposed by rights holders and favoured by the Government. This ruling therefore brings some clarity on the issue for ISPA members.

However, blocking is not a silver bullet to stop copyright infringement online and there are still widely-recognised concerns about over-blocking, ease of circumvention and increased encryption. ISPA would like to see more focus by the creative industries on offering innovative, fully-licensed content services to give consumers what they are clearly demanding.

The court will decide in October how BT is to implement the order.

2. Hargreaves Review – bringing copyright in line with the digital age
The second announcement was the Government’s general acceptance of all 10 recommendations of the Hargreaves Review which aims to bring copyright law in line with the digital age.

Of importance to ISPs was the Government’s response to the recommendations on copyright enforcement. Government generally agreed that “effective enforcement requires education, effective markets, an appropriate enforcement regime and a modern legal framework.”

However, Government was clear that it also had considerable sympathy to rights holders’ view that they want to see stronger enforcement regimes in place before investing in new services. Government confirmed that they would work with public sector enforcement bodies and industry, to support efforts to develop new legitimate digital markets, tackle organised IP crime and enhance the availability of high-quality evidence. The Government will also ask Ofcom to establish benchmarks and data on trends in online infringement of copyright as soon as possible and adopt a new IP Crime Strategy as well as continue the implementation of the Digital Economy Act.

As stated above, ISPA believes that the content industry needs to develop attractive new business models using developments that the Internet has brought rather than reproducing existing models.

ISPA also agrees with the review that there needs to be more education of users, effective, fully-licensed services and modernisation of copyright laws.

Government’s overall goal is to implement Hargreaves’s recommendations within the current Parliament (until 2015) and they will consult over the next few months and set out their plans in a White Paper in spring 2012.

3. DEA notification next steps – ISPs to pay 25 per cent
Finally, the Government announced the next steps for the implementation of the Digital Economy Act. They confirmed that ISPs would not be required to contribute towards the costs of Ofcom and the independent appeals body in setting up and administering the regime. However, ISPs will still be obliged to pay 25 per cent towards the notification of users as well as costs in implementing the process. Government also decided to introduce a new £20 fee for subscribers to appeal in order to minimise the risk of the system being disrupted by vexatious or non bona fide appeals.

Following a report by Ofcom, Government decided not to introduce site blocking regulations under the DEA but will continue to look at the issue.

ISPA members are disappointed that the Government is pressing ahead with the DEA implementation especially when there is the option of going to court to enforce their copyright as mentioned earlier.

ISPs will still be burdened with costs in sending out letters and implementing the process which ISPA disagrees with as it is essentially subsidising another industry for enforcing their copyright. However, ISPA does welcome the conclusion of independent work by Ofcom which has found that the blocking aspects of the DEA are problematic and ineffective. We have long argued that blocking is an ineffective and regressive means to address online copyright infringement and we are glad that Government has decided not to introduce web blocking measures at this time.

These three announcements will certainly prove to be of significance in shaping the ISP industry in the coming years and ISPA will continue to fight to ensure that any negative impacts for ISPs are kept to a minimum. The ISPA Conference on November 9th will be debating these announcements in more detail. Please visit the ISPA website and book your place to join the discussion – http://bit.ly/pxMi4f.

Entanet’s View
We have covered all three of the issues discussed by Nicholas previously on this opinion site and are watching carefully to see how these issues play out over the next few months. With regards to the Newzbin2 website blocking decision, we agree with ISPA that such blockings via court order clarifies the issue for ISPs somewhat, but also believe, like ISPA, that website blocking is not the best approach to solving copyright infringement. We too think that there is a risk of over-blocking and circumvention and that the entertainment industries would be better placed by modernising and providing reasonably priced legally available content to consumers. We therefore welcome Ofcom’s suggestion to drop website blocking from the DEA.

Similarly, we also welcomed the Hargreaves’ report and fully supported his suggested reforms to the UK copyright laws. We particularly supported his calls for the Government to base their IP policy more closely on economic evidence and pay more attention on the impact to consumers and non-rights holders.

Finally, with regards to the judicial review of the DEA and the ruling that forces ISPs to pay 25% towards the cost of notifying infringing users we were very disappointed by this news when it was announced. Like ISPA we think it is unfair to force ISPs to subsidise the entertainment industry’s enforcement of copyright.

In summary we continue in our plight to encourage the entertainment industries to modernise. Instead of trying to block websites which can be circumvented and undertake costly legal battles why do they continue to refuse to provide reasonable legal alternatives? We believe educating the public to the legalities and providing new distribution models is the real key to tackling copyright infringement and potentially increasing the revenues of the entertainment industries. But instead they seem focused on pursuing alleged infringers through the courts and developing disproportionate punishments such as the three strikes rule.

Have your say!

What are your thoughts on these issues and how have you been affected by them? How do you think copyright infringement should be tackled? What are your thoughts on the DEA and the Hargreaves’ report? Let us know your thoughts by leaving us a comment below.

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