DCMS holds no evidence on online copyright infringement, lobby group says

Out-Law News | 17 Oct 2011 | 3:08 pm | 3 min. read

The Department for Culture, Media and Sport (DCMS) does not hold any evidence about the "scale and nature" of online copyright infringement, the department has said, according to a lobby group.

Digital rights lobby group the Open Rights Group (ORG) said that DCMS made the admission in a response to a request under the Freedom of Information (FOI) Act it had submitted which asked for the information. The ORG said it was "a little alarming" that DCMS did not hold the information in light of the recommendations the Government has previously received to base intellectual property (IP) policies on evidence.

"We asked for evidence [DCMS] hold on the scale and nature of infringement of copyright by websites and on the efficacy of different strategies for dealing with it," Peter Bradwell of the ORG said in a blog post.

"They told us in their reply that they don't hold any. This is a little alarming," Bradwell said.

In May the Hargreaves Review (a Government-commissioned report into the UK's IP laws and frameworks) recommended that future policy decisions on IP be based on evidence and not industry lobbying. The economic impact of file sharing on creative businesses has been minimal and estimates of the scale of illegal downloading are not reliable, the report said.

In its response to the report in August the Government said that "perfect evidence is an ideal", but that it would in future give only "limited weight ... to evidence that is not sufficiently open and transparent in its approach and methodology, and we will make it clear where we are taking this view".

Communications regulator Ofcom is expected to announce a new regulatory regime for tackling online copyright infringement shortly. The regulator is required to publish a code of practice to combat illegal file sharers under the UK's Digital Economy Act (DEA). Ofcom and DCMS have been finalising the details of Ofcom's new code since the regulator published draft proposals last year.

In its draft proposals Ofcom said that internet users should receive three warning letters from their ISP if they are suspected of copyright infringements online. Details of illegal file-sharers that receive more than three letters in a year would be added to a blacklist, the draft code said. Copyright holders would have access to the list to enable them to identify infringers. Under the draft code, ISPs could also have to suspend users' internet access if they are found to be illegally downloading copyrighted material.

Sections 17 and 18 of the DEA also allow the Culture Secretary to draw up new regulations that would see courts decide whether to force ISPs to block website access to pirated copyright works. The Government recently announced that it had no plans to bring any new regulations under sections 17 and 18 of the DEA into law "at this time".

Earlier this month internet service providers (ISPs) BT and TalkTalk won the right to appeal a High Court ruling on the legality of the DEA. In April the ISPs lost a judicial review ruling in which it had claimed the DEA violated EU laws on privacy and electronic communications.

Peter Bradwell of the ORG said that it was "a little odd" that DCMS did not hold evidence of copyright infringement on websites given that it is "still citing studies from vested interests or that are not publicly available".

Peter Bradwell said evidence-based policy making is essential to prevent "hearsay and assumption" from steering Government decision-making.

"It must be very hard indeed to make judgements about proportionality and necessity without evidence of the issue at hand," Bradwell said.

"It leads to policy based on hearsay and assumption, which is someway short of the new standards for Intellectual Property that the Government recently set for itself," he said.

In its response to the ORG's FOI request DCMS said that the "creative industries" had flagged "copyright infringement as a serious problem" and said it was "working to implement" Ofcom's code under the DEA.

It said discussion is also ongoing with "stakeholders" about new measures for addressing the issue that would exist "outside the DEA".

"With regard to approaches to tackling online copyright infringement outside the DEA, much of the work being done in this area is being led by industry," DCMS said in its FOI response, according to the ORG.

"There are no current plans for regulation or other Government intervention; if there were such an intention then of course an impact assessment would need to be prepared. In the meantime, discussions continue between stakeholders and Government - at both Ministerial and official level – about the scale and nature of online copyright infringement, and the efficacy and potential consequences of a variety of approaches to tackle the problem," it said.

Last month Culture Secretary Jeremy Hunt urged industry to establish a voluntary system to combat online copyright infringement. Hunt said the system could make search engines and ISPs responsible for taking "reasonable steps to make it harder to access sites that a court has deemed contain unlawful content or promote unlawful distribution of content," Hunt said..

A "cross-industry body" could be established and "charged with identifying infringing websites against which action could be taken" and a "streamlined legal process" be introduced that would allow courts to "act quickly" to tackle illegal file-sharing, Hunt said.

Hunt also said that responsibility could be placed on advertisers and credit card companies to remove adverts and services from copyright infringing sites. The Culture Secretary said the Government would propose the new measures under law if industry stakeholders could not agree a voluntary framework.