Digital Economy Act – the next steps

I attended a meeting today of representatives from various sectors to discuss the next steps in tackling the implementation of the Digital Economy Act. The Act was rushed through Parliament as part of the wrap up process that sees what the Government determines as key legislation pass though the Parliamentary process largely on the nod. UCISA, along with a number of organisations, has lobbied on various aspects of the Act, most notably the need for clarity in the definitions of Internet Service Provider and Subscriber and the provisions for dealing with breaches of copyright by internet users.

Although one part of the coalition, the Liberal Democrats, included repealing the Act in their manifesto, it is not a priority item and so the sector needs to prepare to manage the fall out from the Act. The timetable for implementation is short. The initial part of the Act, to introduce a Code of Conduct which determines the process by which rights holders may complain to ISPs about alleged infringements, is scheduled to be introduced in January 2011. This means that, in order to allow time for approval by both the UK Parliament and the European Commission, the first draft of the Code will be presented for public consultation in the very near future.

There is much work to be done particularly as there are so many questions that are left open by what is poorly worded legislation. The first area that needs clarifying is those definitions. If institutions are classed as subscribers then there is still a risk, albeit a very small one, of an institution being disconnected from the network (and even this is not clear at the moment). If they are classed as ISPs then there will be a requirement to log usage but again it is not clear what is required. Regardless of the classification, the level of infringement in the higher and further education sectors is so low compared with commercial ISPs that it may be agreed to allow the sectors to self regulate, particularly as the sector already has good mechanisms in place for dealing effectively with infringements.

There is currently a consultation ongoing on the costs of implementing the Act. These relate to the initial costs of setting up the required monitoring, the costs of investigating allegations and the appeals process. If I have understood the process correctly as outlined at the meeting it seems a logistical nightmare. Rights holders will be required to pay ISPs and Ofcom a sum based on an estimate of the number of likely allegations. There is no central pot – each rights holder will have to pay each ISP that they are likely to submit a complaint to. As complaints are received the ISP will call off against the sum held until the funds are exhausted. This perhaps makes sense when considering large rights holder and large ISPs but if institutions are classed as ISPs then rights holders will have pay each institution (in advance) if expect that they will want to submit allegations of copyright breach. Currently they get the service for free. The volume of complaints in the sector is so low it is to be hoped that common sense will prevail, that the good practice that exists in the sector will be recognised and an administrative burden will not be placed on the sector. However given the timescales for implementation there remains a risk that this will not be the case. The message is still “don’t panic” though as there is still a lot to sort out. UCISA will certainly be responding to consultations and working with our partners to try to ensure a sensible outcome.

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