The Digital Economy Bill - will it come in time?

Nick McDonald of Browne Jacobson has written to the IPKat with the following:

"Her Majesty in yesterday's Queen's Speech said the following: "My Government will introduce a Bill to ensure communications infrastructure that is fit for the digital age, supports future economic growth, delivers competitive communications and enhances public service broadcasting".

The Digital Economy Bill will:

• Reform the law on online copyright infringement - by creating duties on Ofcom to require ISPs to take action against identified file sharers, and giving Ofcom and/or ISPs the power to disconnect persistent file sharers;
• Introduce "changes to copyright licensing" - the exact detail of which is as yet unclear;
• Give Ofcom powers to appoint and fund Independently Funded News Consortia - essentially aimed at encouraging the proliferation of independent news media;
• Give Ofcom new duties to promote investment in infrastructure and public service media content, and to carry out an assessment of the UK’s communications infrastructure every two years;
• Support investment in next generation technologies through spectrum modernisation - pretty technical; all about bandwidths, how many of them are available, and who owns them;
• Update the regulatory framework to make moves to digital switchover for radio possible by 2015;
• Update Channel 4's functions to encompass public service content on all media platforms - online as well as television;
• Protect children by making age ratings compulsory for all boxed video games designed for those aged 12 or above.

There is no mention of whether the Bill will echo the Government's Digital Britain Report of June 2009 in seeking to "modernise" (Therefore presumably extend) the fair use copyright infringement exceptions.

Clearly, the main IP change will be in relation to tackling file sharing. The No.10 website describes the new legislation being aimed at:

"tackling widespread copyright infringement via a two-stage process. First by making legal action more effective and educating consumers about copyright on-line. Second through reserve powers, if needed, to introduce technical measures, such as disconnection".

There has been a lot of commentary on this issue in the media over the last few years: Is it achievable? Will it work? Is it desirable? Either way, it appears the Government is going to try. It may not solve the problem immediately, but it will certainly strike a major blow against illegal downloading."

The IPKat thanks Nick for his thoughts, but is not sure himself whether the Bill will even come to pass, given that this government has only a few months left to run and is very unlikely to be re-elected. As for "striking a blow against illegal downloading", the IPKat is even less sure. The whole thing seems to be more like an attempt by the music industry to force through some very ill-thought-through legislation that will do more harm than good (if it does any good at all). For more on the issue, the IPKat would like to point his readers to the recent writings of Cory Doctorow and the Open Rights Group, both of whom have a lot more to say on the subject.

More sledgehammers here; more nuts here.

Government U-turn on downloaders; parallel imports blames for pharma shortages

Government revives downloader cut-off proposal

The IPKat has learned from the BBC that the Department for Business Innovation and Skills is to consult on whether the forthcoming Digital Economy Bill should include a requirement that ISPs cut off persistent downloaders. Although Lord Carter's Digital Britain report recommended that Ofcom should explore the issue thoroughly before such a measure was taken, this would take until 2012. The Government feels that this the threats posed by online infringement could mean that this would be too long to wait. To take account of the change in position, the Digital Britain consulation period has been extended to 29 September.

The IPKat isn't hugely impressed. What's the point of commissioning such a report if you're going to brief against its measured recommendations? And wouldn't it have been more sensible to have put this proposal forward at the beginning of the consulation period, rather than halfway through?

BIS press release here.

Parallel imports lead to UK drug shortages

Also from the BBC, the news that a survey by Chemist and Druggist magazine has revealed that 90% of pharmacies have experienced difficulties in obtaining stocks of branded medicines. Some patients have suffered health problem as a result (either physical problems, or caused by anxiety when the correct drug cannot be obtained). A good deal of the blame has been placed on parallel imports into other countries of medicines intended for the UK market.

The IPKat wonders if this is another effect of the credit crunch, with the weakish pound making the UK a good place to source goods for export. He wonders if a similar phenomenon is apparent is other products. The problem though is a serious one. He has a dim and distant recollection of an ECJ case saying that sales of parallel imported goods could be stopped on competition grounds where parallel trade leads to a shortage on the exporting market, but he never thought that the UK would be affected in this way.

Guess who’s coming to dinner?

With most of our movers and shakers escaping from the stresses of the workplace to holiday in many exotic locales across the globe, the world of IP is generally quiet in August. That is of course, unless you mix your holiday with your work, as Lord Mandelson (First Secretary of State, Secretary of State for Business, Innovation and Skills, President of the Board of Trade and Lord President of the Council) allegedly did this month.

Ten days ago, Lord Mandelson enjoyed dinner with David Geffen – the owner of Geffen Records and co-founder of Dreamworks. David is a vocal critic of file sharers and portable multimedia devices (see Rick Rubin’s mention of Geffen in a New York Times article here). The Daily Mail reported that at this dinner the pair discussed digital piracy, which has reportedly resulted in Lord Mandelson’s interest in the Digital Britain proposals being (re-)sparked. A spokesperson for the Department of Business denied that Lord Mandelson and Geffen’s dinner was indicative of a relationship that could have potentially informed the proposals submitted in Digital Britain.

For those readers who have yet to peruse Digital Britain, the report contained proposals to criminalize copyright infringement for both online and physical infringements in section 107 CDPA with the introduction of custodial sentences and of a statutory maximum of £50,000. The report also contained proposals to limit the bandwidth of file sharers by what is known as ‘bandwidth capping’. On Sunday, The Independent published the opinion of former digital engagement minister Tom Watson’s critique of the Government’s proposals and their expected appearance in this year’s Queen’s Speech. Watson stated that the Government’s proposed sanctions

“ultimately risk criminalizing a large proportion of UK citizens, but they also attach an unbearable burden on an emerging technology that has the power to transform society, with no guarantees at the end that our artists and our culture will get any richer.”

The AmeriKat agrees with Watson’s comment. In comparison with the US, where file sharers face a maximum of $150,000 per each willful infringement and criminal prosecution, these proposals seem almost tame. However, the American experience of high awards/fines and criminal sanctions has not resulted in a success story of artists receiving greater compensation or the creative industries being fostered; if anything the US experience should act as a cautionary tale for the UK Government.

From the AmeriKat’s perspective, Lord Mandelson, in positioning himself to be the RIAA of the UK, may well suffer the same backlash RIAA has experienced over the past several years in the US. Where RIAA has sued the hands that have fed them, Lord Mandelson has now found himself in a position of proposing measures that have him prosecuting the hands that may or may not elect the next government.

Annsley thanks her good friend Tara Train for bringing this story to her attention.

Digital Britain -- first thoughts

Congratulations to ZDNet.co.uk, which was first to get something accessible on to the internet concerning today's launch of the UK government's Digital Britain manifesto. According to ZDNet.co.uk's Tom Espiner, who heard it from David Meyer,

"The report does indeed recommend that all users have access to broadband up to 2Mbps [That's a lot slower than broadband suppliers advertise, but faster than many seem to deliver ...].

In terms of how this can be achieved, the government said that the market already covers two-thirds of next-generation broadband needs, but that there will be a 50p monthly levy on each copper line to fund next-gen broadband, to cover the remaining third of needs [so you can get rid of your copper line now, go wireless, and save £6 a year, or nearly US$ 10 at today's exchange rate].

Unlicensed filesharers are to have their bandwidth reduced, plus be subject to protocol blocking. Their IDs may also be released for civil actions [there is doubt as to whether either of these steps will deter or even inconvenience the mobile, technologically savvy youngsters who comprise the core of unauthorised file-sharers today, though].

There will be a major telecoms resiliency test-exercise this year [sounds sensible].

There will also be an internet crime and security initiative, combining parliament, government, and business [The IPKat can understand why parliament and the government have been included, but what is business supposed to have done wrong?].

There will be a consultation on Ofcom penalties for Communications Act 2003 contraveners [seems prudent: ].

The government is to provide a £23m fund for basic SME IT support [A curiously un-round sum. why 23?].

There will also be more IT training for citizens [You've heard of Bootcamps. Well, these will be Reboot Camps. but will there be special training in anger management and router rage?] ".

... but now you can read it for yourselves!

Digital Britain Interim Report here
Digital Britain Forum here
"Digital Britain: a Beginner's Guide" here
Earlier IPKat posts here, here, here and here
Comments from The 1709 Blog here and here
IPKat team member Jeremy's comment on ZDNet here

Downloaders not to be cut off after all - but Culture Minister won't be there to see it (not) happen

The BBC reports that, contrary to previous expectations, the Digital Britain report, due out on 16 June, will not call for serial downloaders to lose their broadband access under a 'three strikes and you're out' scheme. Instead, it will propose that the speed of their connections is slowed down. The (soon to be ex) Culture Minister, Andy Burnham said at yesterday's Music Week's Making Online Music Pay conference that the Government preferred to take 'technical measures' against downloaders, rather than cutting down their access. A spokesman later clarified:

"It is likely to include an obligation on ISPs to send out letters to people who are infringing copyright...What Mr Burnham also said was there was the likelihood that the MoU would be backed up by new powers for Ofcom to impose 'technical solutions' for repeat offenders if that process of sending out letters was not effective enough".

However, Andy Burnham is Culture Minister no longer, with Ben Bradshaw stepping into the role (also on the move is John Denham, the Secretary of State for the Department of Innovation, University and Skills, the parent department for IP matters).

The IPKat favours the move. Broadband access is increasing required to access goods and services and completely severing peoples' connections would seem rather too punitive. If the technical solution works, it could be a nice compromise. However, the timing of the launch of the report seems rather poor, with the new Minister being in the post for something like a week and a half.

Digital Britain Interim Report

Today BERR and the Department for Culture, Media and Sport published Lord Carter's Digital Britain Interim Report (the final report is in the late spring).

Not surprisingly, one of the issues on the agenda was illegal downloading and use of peer-to-peer services.

The IPKat thought that the background commentary was pretty well balanced. Copyright on the internet is a problem, the commentary acknowledged, but the 'blame' (if that's the right word) wasn't just placed on those pesky downloaders. Instead, it was acknowledged that things happen quicker in the digital world, and that content providers have to meet the expectations of their consumers that content should be available quickly and easily through the development of new business models. To take one quote:

Copyright is vital for our content and communications industries. It is the framework through which people can protect their creations and seek reward. Our aim, in the rapidly changing digital world is a framework that is effective and enforceable, both nationally and across borders. But it must be one which also allows for innovation in platforms, devices and applications that make use of content and that respond to consumers’ desire to access content in the time and manner they want, allowing them to use it how they want, and at a price they are willing to pay.

However, the IPKat wasn't so happy about all of the report's 3 planned actions in this area:

ACTION 11 By the time the final Digital Britain report is published the Government will have explored with interested parties the potential for a Rights Agency to bring industry together to agree how to provide incentives for legal use of copyright material; work together to prevent unlawful use by consumers which infringes civil copyright law; and enable technical copyright-support solutions that work for both consumers and content creators. The Government also welcomes other suggestions on how these objectives should be achieved.

[IPKat comment: providing incentives for legal use seems to be code for innovative new business models. What are these innovative new business models the Kat would like to know.?The only things which are mentioned are iTunes and DRM (but then, the Kat supposes that working out the new models is the job of this agency).]

ACTION 12 Before the full Digital Britain Report is published we will explore with both distributors and rights-holders their willingness to fund, through a modest and proportionate contribution, such a new approach to civil enforcement of copyright within the legal frameworks applying to electronic commerce, copyright, data protection and privacy to facilitate and co-ordinate an industry response to this challenge. It will be important to ensure that this approach covers the need for innovative legitimate services to meet consumer demand, and education and information activity to educate consumers in fair and appropriate uses of copyrighted material as well as enforcement and prevention work.

[IPKat comment: this is very bad news. Developing innovative new business models may not be the job of Government, but civil enforcement most definitely IS.]

ACTION 13 Our response to the consultation on peer-to-peer file sharing [available from BERR] sets out our intention to legislate, requiring ISPs to notify alleged infringers of rights (subject to reasonable levels of proof from rights- holders) that their conduct is unlawful. We also intend to require ISPs to collect anonymised information on serious repeat infringers (derived from their notification activities), to be made available to rights-holders together with personal details on receipt of a court order. We intend to consult on this approach shortly, setting out our proposals in detail.

[IPKat comment: this sounds like it will place a significant burden on ISPs, for relatively little reward in terms of respect for copyright the IPKat suspects].