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Introduce anti-piracy measures now, says shadow culture secretary

Out-Law News | 27 Feb 2012 | 4:08 pm | 4 min. read

The Government must introduce anti-piracy regulations under the Digital Economy Act (DEA) in order to tackle illegal file-sharing, the shadow Culture Secretary has said.

Harriet Harman said the Government should commit to a "clear timetable" for implementing the DEA "including getting on with the notification letters and publishing the code of practice". The deputy Labour leader said "now is the time" for the measures to be introduced.

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.

In its draft code of practice 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. 

The finalised code had been expected to be published last year. A spokesman for the Department for Culture, Media and Sport (DCMS) told Out-Law.com last month that it was hoped the code would be published "before too much longer". He said the previously announced timescale for the first warning letters to be sent out under the new code rules remained the same - the start of 2013.

Last year BT and TalkTalk were granted permission to challenge a High Court ruling which previously rejected the ISPs' claims that provisions contained in the DEA breached EU laws on privacy and electronic communications. DCMS previously denied that the appeal would delay the publication of the finalised code.

Harman said the finalised code was needed in order to combat an estimated £236 million loss in revenues to the music industry as a result of piracy.

"The Government commissioned the Hargreaves review – which has reported and soon, they are going to publish a Green Paper and then bring forward legislation.  So now is the time to take things forward and for the government to strike the right balance between the content industries, including music, and the technology companies to create a climate where innovation can flourish while copyright is protected," the shadow Culture Secretary said in a speech at the University of Hertfordshire last week.

"This debate has been going on for long enough and needs to be brought to a conclusion," she said.

Last month the Film Policy Review Panel urged the Government to implement the Ofcom code "as quickly as possible". The Panel made the call as part of its independent review of the future of the UK film industry.

Harman also called on the Government to "set a deadline" for stakeholders in the online environment to sign up to a self-regulatory framework to tackle copyright infringement.  

"The Government should ... lead and set a deadline for agreement in the industry for site blocking, search engine responsibility and digital advertising.  The music industry – and other creative industries – say that if the Government got a move-on, they could do this by May this year," she said.

The Government should be prepared to legislate on the measures as part of the forthcoming Communications Bill if self-regulatory agreements cannot be formed by the deadline, Harman said.

The Government has been facilitating discussions with rights holders, ISPs, search engines and other internet companies in a bid to form new voluntary frameworks for combating illegal file-sharing.

Last year representative bodies from across the creative industries detailed plans for a new code of practice around website blocking in which ISPs would have to implement measures to cut off customers' access to content under agreed procedures. Culture Minister Ed Vaizey has said the Government does not want to introduce new regulations on website blocking "unless necessary".

 Last year five US ISPs signed up to a new voluntary framework, agreed with film, TV and music industry bosses, for tackling illegal file-sharing. Under the system suspected infringers could be issued with up to six early electronic alerts notifying them that their account had been used to breach copyright laws. Repeat offenders will face "mitigation measures" restricting their behaviour. Press reports at the time suggested that those measures may include slowing down a repeat offender's internet service or blocking website browsing.

Internet search engines that operate in the UK could stop publishing links to websites that are deemed to be substantially infringing copyright under a proposed voluntary code of practice for search engines. The plans were drafted by groups representing rights holders, including the British Recorded Music Industry (BPI) and Motion Pictures Association infringement.

If adopted, the code would also require search engines to relegate sites in their rankings for repeatedly making pirated content available and boost links to other "licensed" sites under a new "certification" scheme. Search engines would also have to stop promoting pirate websites or placing ads on those sites. The code would also prohibit search engines from selling keyword advertising related to piracy terminology, whilst they would also be banned from selling mobile apps that help facilitate infringement. The details were uncovered by digital rights campaigners the Open Rights Group following a freedom of information request.

Harman urged record companies to make their music more easily accessible through legitimate sources. Search engines should also "do more" to help "signpost" legitimate content in search results, she said.

Harman also called on Google to "take a lead" by engaging with the advertising industry to stop adverts appearing on copyright infringing websites.

"Technology companies ... should do more to tackle piracy including by stifling the income of the pirate websites. There are a relatively small number of very big pirate websites which make a lot of money.  When they are based offshore they are hard to reach.  But that mustn't lead us to conclude that nothing can be done.  Google, as a major site for advertising, could take a lead to engage the advertising industry in depriving illegal sites of their advertising revenue," Harman said.

"If Google and the ad agencies drain the swamp of piracy by removing their financial incentive - online advertising - then we would have a fertile environment in which paid-for content could flourish," she said.

Editor’s note 01/03/2012: This story was changed to remove an inaccurate sentence regarding the draft code.