Out-Law News | 24 Mar 2014 | 10:07 am | 4 min. read
In a statement made in the House of Commons, parliamentary under-secretary of state for culture, media and sport Ed Vaizey said that the 'voluntary copyright alert programme’ (VCAP) could be operational later this year.
Vaizey said that "significant technical obstacles" had held the government back from implementing new legislation, under the Digital Economy Act (DEA), which would, if established, see the creation of a new framework for enforcing copyright involving ISPs and rights holders. Whilst the government has not given up on implementing the new regime through new regulations, Vaizey said he welcomed the proposed VCAP plans.
"It has been difficult to implement the details of the Digital Economy Act," Vaizey said. "The government have not resiled from it, but there are significant technical obstacles, including the fact that we were being sued by BT and TalkTalk for at least two years from the time when it was passed."
"Other technical obstacles have presented themselves, and we are actively seeking to overcome them, but nevertheless we welcome the industry initiative, not only because we hope it may be up and running before the end of the year, but because it requires a partnership between both sides of the debate, and because it brings important flexibility to make it possible to adapt. I suspect that it will be easier to adapt the system as technology changes," he said.
The DEA requires Ofcom to set out a new anti-piracy code to combat online copyright infringement. Under plans the regulator previously published, the code would require ISPs with more than 400,000 broadband-enabled fixed lines – currently BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media, to send notifications to their subscribers if it is suspected their account has been used to break copyright laws.
ISPs would issue "standard form" notifications to customers on the basis of evidence of alleged online copyright infringement gathered by rights holder groups and compiled in a 'copyright infringement report' (CIR). The evidence gathering procedures must be approved by Ofcom. The infringement reports would set out when the alleged infringement was said to have occurred and when the evidence was gathered. Ofcom's draft code also sets out the standards that infringement reports must meet.
ISPs that issue subscribers with three letters within the space of a year would add the anonymous details of those customers to a 'copyright infringement list'. Rights holders would be able to request access to the list each month and could seek a court order obliging the ISPs to disclose the identity of the suspected infringers so that they can take legal action against them under the Copyright, Designs and Patents Act. Ofcom has said the code will help rights holders to "focus legal action on the most persistent alleged infringers."
Suspected infringers would generally have 20 working days to challenge warning letters they receive before an "independent appeals body" to be appointed by Ofcom.
However, the government told Out-Law.com last year that the first warning letters would not be issued until the end of 2015 at the earliest. It cited the need to make "technical changes" to the shared costs order that has been proposed alongside Ofcom's draft code amidst ISPs' concern about the costs they were being asked to incur in adhering to the code.
Amidst delays in the implementation of the DEA regime, the government has facilitated discussions between rights holders, ISPs and other stakeholders around the establishment of new voluntary systems for tackling online copyright infringement.
Last year it emerged that prime minister David Cameron met with representatives from the film and music industries to discuss the rights holders' plans to enlist ISPs' voluntary assistance in enforcing their rights. Those plans reportedly involve the creation of a database of suspected infringers. ISPs would log details of customers' alleged illegal file-sharing and would combine this with evidence gathered by rights holders.
According to John Whittingdale MP, who chair's the Commons' Culture, Media and Sport Committee, said that the VCAP proposals "would involve an agreement between the rights owners and the ISPs that there would be a system through which letters were issued to those identified as illegally downloading". The VCAP plans would be "preferable" to the government implementing the DEA provisions, he said during the Commons debate last month.
"[The Culture, Media and Sport Committee] prefer a voluntary system, but if agreement cannot be reached, the government need to stand by to bring into force the provisions of the Digital Economy Act 2010, and to use legislation," Whittingdale said.
However, Jim Killock, executive director of the Open Rights Group (ORG), said that some of the concerns around how the DEA provisions and Ofcom code would work in practice would subsist in the similar voluntary scheme that is under discussion.
"For instance, what personal information will be used, and who will have access to it?" Killock said in an ORG blog. "What standards of evidence will rights holders use, or will ISPs demand, when allegations of infringement are made?"
"Will there be any sanctions against households whose accounts have been allegedly used for infringing? Will there be any appeals process for those who feel a mistake has been made? And will the scheme include public WiFi? Who is addressing any of these questions?" he said.
Intellectual property law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, previously highlighted the need for privacy rights to be observed in the operation of any voluntary copyright enforcement scheme. He said an "oversight and complaints procedure" would also be required. However, he said that ISPs could not cite data protection concerns as a barrier by ISPs to their involvement in helping to enforce copyright.