Inquiry into the DE Act

Last week I submitted UCISA’s response to the Commons Culture, Media and Sport Select Committee’s inquiry into the Protection of Intellectual Property Rights Online. There are two parts to the inquiry – the UCISA response concentrated on the first part which considered the implementation, practicality and likely effectiveness of the Digital Economy Act. The fact that the inquiry has been instigated at all suggests that there is already a view that it will not be effective or is not practical in its current form.

Part of the problem in my view is the fact that the Act was extremely loose in the way it defined its scope and the key terms internet service provider and subscriber. Ofcom, who have been given responsibility for defining the practical implementation of the Act, have been charged with providing the detail. They have issued a number of consultations on the implementation including one on the Initial Obligations Code which deals with the practical aspects of enforcement relating to copyright infringement. The fact that the final version of that Code has yet to be published and the schedule of consultations and publications is already a number of months behind suggest that they are struggling to come up with something that is practical, effective and legally water tight. There is a further challenge to the Act itself in that BT and TalkTalk have won the right to a judicial review, claiming that it could infringe internet users’ basic rights and freedoms and that it may contravene existing EU Law. The outcome of the review is expected in February but it was not expected to derail the implementation process at this stage.

The UCISA response went over much of the same ground as previous responses but the hope is that the different audience might be more receptive to the messages contained within it. It is of course difficult to assess whether the Act will be effective or is proportional given that there remains so much to be determined. However it is worth reiterating that universities and colleges have established procedures for dealing with breaches of copyright in their domains and that those procedures have been recognised as effective by rights holders. If universities and colleges are classed as communications providers then the hope is that these effective procedures can continue. If they are not and are ISPs or subscribers then the draft Initial Obligations Code suggests that there will be a substantial overhead for institutions which will be disproportionate to the level of offending. There same also applies to the many museums, libraries and retail outlets that provide open access internet to their customers. The risk is that small organisations may conclude that the overhead makes internet provision infeasible to provide which rather goes against the principle of the original Digital Britain paper.

So we seem to be no further forward. The implementation seems to have stalled. The Act itself is to be reviewed in the High Court and the Select Committee has extended the deadline for submission of evidence until late March (from 7 January) to allow the impact of the judicial review to be assessed. There is one ray of hope – discussions in the House of Commons suggested that public intermediaries such as universities and colleges caught under the act are going to be treated sympathetically. It is hoped that this means not having the shoulder the burden of implementing the Act at the same time as having to deal with the effects of funding cuts.

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