Out-Law News 5 min. read
15 May 2012, 2:13 pm
In responding to a recommendation by the Film Policy Review Panel, the Department for Culture, Media and Sport (DCMS) said that it "will move ahead with the implementation of online copyright provisions in the Digital Economy Act as soon as possible".
The Digital Economy Act (DEA) was pushed through Parliament in the period shortly before the 2010 General Election and has led critics to claim the laws had not been properly scrutinised.
Under the DEA communications regulator Ofcom is required to publish a code of practice setting out the procedures internet service providers (ISPs) must follow to combat illegal file sharing. Ofcom published a draft code in 2010 but finalised rules have still to be published.
Creative industry groups have criticised the Government for the delays in the publication and implementation of Ofcom's code. However, DCMS said that it expects the code to be published in June. It said that delays in the finalisation of the code were caused by its having to amend a previous draft following a legal challenge to the legitimacy of the DEA.
"The Government welcomes the Panel’s recommendation and remains committed to implementing the Digital Economy Act provisions as soon as possible," DCMS said in its response (26-page / 377KB PDF) to the Film Policy Review Panel's review of the UK film industry.
"The Judicial Review of the online infringement of copyright provisions has caused significant delay since although the Government won overwhelmingly in both the High Court and the Court of Appeal, the point upon which we lost in both cases has meant that we have had to re-set how the costs of the process will be apportioned. This in turn has led to the Initial Obligations Code being delayed. However, we anticipate that the Code will be published in June 2012," it said.
The Film Policy Review Panel was appointed by the Government to review the future of UK film. In January it reported that copyright infringement was contributing to declining industry revenues and that a "key element" to addressing the problem was in implementing the measures contained in the DEA.
In its draft code of practice previously published, Ofcom said that internet users should receive three warning letters from their ISP if they are suspected of copyright infringement 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 Government plans individuals would have to pay £20 in order to appeal against a notification letter. Cases would be heard by an independent appeals body, although subsequently Ofcom has said the Government had asked it to reduce the scope of individuals' right of appeal.
In a judicial review ruling in April last year the High Court rejected claims by BT and TalkTalk that the DEA violated EU laws.
The ISPs appealed arguing that the DEA breached EU laws on data protection and privacy. However, in March the Court of Appeal rejected those claims and said BT and TalkTalk also failed to convince it that the DEA was "incompatible" with provisions set out in the E-Commerce Directive. That law generally prevents service providers becoming liable for the transmission of communications over their network.
The Court also rejected claims made by the ISPs that the DEA was unlawful because the Government had failed to give the European Commission enough time to scrutinise parts of the legislation, according to the bodies.
However, the ISPs did successfully argue that they should not be required to pay 25% of the "case fees" that would stem from ISP customers bringing appeals against warning letters they could receive for allegedly infringing copyright under measures allowed for by the DEA. The ISPs will still have to pay 25% of the costs they incur to comply with their obligations under the Act after the Court ruled that it was lawful to impose the charge on them.
Under sections 17 and 18 of the DEA other anti-piracy measures can be drawn up at the behest of the Culture Secretary. Those measures would see courts decide whether to force ISPs to block access to pirated copyright works. However, in August last year the Government announced that it had no plans to bring any new regulations under sections 17 and 18 into law "at this time".
The Government has however been chairing meetings between creative industry groups, ISPs and other stakeholders aimed at fostering voluntary frameworks for combating online piracy.
The Film Policy Review Panel urged the Government to continue to "facilitate" work in this area. In response DCMS said work was ongoing and that would try to get advertisers and search engines more involved in tackling piracy.
"It is important that online infringement of copyright is tackled in a number of different ways in order to make websites dedicated to infringement more difficult to access and less profitable to operate," it said. "That depends upon different parts of the economy working together to make the sites that are making money from illegally supplying material, with no compensation to creators or investors, less attractive both to visit and to run."
"This will include working with online advertising bodies to reduce the risk of brands appearing on sites dedicated to infringement, and with search engines to see how they and rights holders can work together to tackle online infringement."
"One important initiative, where the music industry has taken the lead, is on cutting off the supply of funds from illegal sites by working with payment facilitators such as Visa, MasterCard and PayPal to remove their services from sites where there is clear evidence that they are intent upon infringement, and the evidence has been endorsed by the City of London Police. The film industry should also take up this opportunity," DCMS said.
The Department also said that the Government will help promote the value of copyright to children and that views of the film industry on proposals to introduce new exceptions to copyright into UK law will be "full taken into account". It added that it hopes the film industry plays a "full part" in helping to resolve current issues with the UK's framework for licensing content as part of an ongoing independent feasibility study into the establishment of a Digital Copyright Exchange.
DCMS also embraced plans for the formation of a "UK Register of British film".
"The Government welcomes this proposal and hopes that, if appropriate, links are made to the work of Richard Hooper in the development of the Digital and Copyright Exchange (DCE) and the Government’s proposals on copyright and orphan works," it said. "We welcome the BFI continuing to lead and working with ACE, HLF and the BBC in its advocacy and development role to promote good curatorship and increase accessibility to a range of cultural and film archives."
"We note that ACE previously worked with the film industry and the BBC to develop a joined up vision of how all publicly funded art and cultural works could be digitised, catalogued and archived according to common standards allowing them to be linked, found and enjoyed online by audiences. Government wants to see this work developed further, building on the lessons learned," DCMS said.
Editor's note, 18/05/2012: This story has been updated, after Ofcom asked us to clarify that it is the Government's and not its plans for individuals to pay £20 in order to appeal against a notification letter served under its anticipated anti-piracy code.