Digital Economy Bill - dealing with copyright infringement
Friday 20 November 2009 11:28:58 by Andrew Ferguson

Today 20th November 2009 sees the content of the Digital Economy Bill announced, with the various sections available and assorted comments by members of the Government on the BIS website (warning some parts of the site appear slow at the time of writing this (10:45am)). We have split the bill out into its constitute parts to make it easier for people to digest, and avoid confusion.

One thing to ensure people are aware of is that while some press coverage has suggested the 50p broadband levy/tax is not happening, and while it is not part of the Digital Economy Bill, it is expected to be detailed in the Finance Bill at a later date.

Copyright infringement and how to make copyright laws fit for a digital age was a corner stone of the Digital Britain report, and by far has been the issue generating the most vocal response from the public and industry. Today clears up some of the confusion, but of course until the Bill has entered the statute books it is open for debate and change.

• A provision for 'orphan works' to be legally used, even though copyright owner cannot be identified or found.
• Streamlining of rights clearance. Collecting societies (with some safeguards) will have a mandate to license works and collect fees on behalf of rights holders who have not signed up to that society. Rights holders can assert their right to opt out of this arrangement.
• The maximum fine for criminal infringement of copyright and performers rights to be raised to £50,000. It is important to note this does not cover areas like downloading material from file sharing systems for personal use, though if burning those files to DVD and selling them you then enter the world of criminal law.
• The Secretary of State will be given the power to be able to amend the Copyright Designs and Patents Act 1988 (CDPA) for the purposes of preventing or reducing online copyright infringement. The idea being that the digital world changes at a pace much faster than the legislative one, and flexibility is required.
• Two obligations on Internet Service Providers (ISPs), the first is to send notification letters to customers who are linked with an alleged on-line copyright infringement (as identified by the rights holder), and secondly to record the number of notifications each customer receives and pass these onto rights holders in an anonymised format upon request. The idea being the rights holders can then apply for a court order to identify the account/user and take targeted legal action against the most serious infringers.
• A reserve power will be introduced that can be used to impose technical measures on an account such as bandwidth capping, or temporary account suspension in the event that the initial obligations do not have the desired effect on serious infringers.

Compared to what has been covered in the press previously the proposals in the bill seem somewhat more targeted at those who engage in copyright infringement the most, rather than resulting in people who have downloaded one music track getting letters and their broadband cut off. How well the letter warning system will work depends greatly on how good the rights holders are at identifying people; the general public will not take kindly to being accused of sharing content illegally if they really have not. Therefore, the rights holders need to take great care in not abusing the letter system. Additionally, one hopes that the bill on its passage through the house will cover the issue of privacy, i.e. that the tally of bad marks held by the service provider is kept securely and is not used for marketing purposes (e.g. customers with too many bad marks receive a poorer service or are encouraged to move to another provider to reduce a providers costs in handling the letters). In light of the mobile phone company staff selling customer records, the issue of security and privacy for this data should be high on the agenda.

Of course the hope with this legislation is that people will reduce the amount of material they download illegally (i.e. free) and spend more money on buying the content legally. The digital economy is apparently worth some £16bn and copyright infringement is estimated to cost the music industry £180m and the film/TV industry £150m in lost revenue. In the current economic environment it seems unlikely that people will spend more on music and films rather, they will simply decide to live with less digital content or seek free legal means to obtain/view it.