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OfCom’s three-strikes code: Reactions

By | Published on Wednesday 27 June 2012

Warning Letter

So, as previously reported, yesterday media regulator OfCom published the latest long-time-coming draft of its Obligations Code stemming from the copyright section of the 2010 Digital Economy Act, the bit that puts in place the first elements of a three-strikes system for combating online file-sharing. The Code sets out the obligations of internet service providers to send letters to suspected file-sharers telling them they are very bad people and really ought to stop.

While the Act itself was rushed through parliament to ensure it was approved before the 2010 General Election, getting the three-strikes elements of it going has been a slow and tedious affair, hindered in part by the so far unsuccessful attempts of BT and TalkTalk to force the DEA’s copyright provisions off the statute book through the courts.

A redraft of a document original put together back in 2010, the latest version of the Code clarifies the ways rights owners will monitor net usage, what information internet service providers will provide accused file-sharers in warning letters, and how net customers can appeal if they believe they have been falsely accused. OfCom will now consult interested parties about the new draft of the Code, before checking the provisions with the European Commission and then presenting it to parliament later this year.

Representatives from various content industry trade bodies, which have lobbied hard for the DEA and a so called ‘graduated response’ system for combating online piracy, and all of which have been getting rather frustrated of late with continued delays in getting three-strikes going, welcomed yesterday’s new draft. And here they are saying so…

Jo Dipple, Chief Executive at cross sector trade body UK Music: “The UK music industry welcomes today’s publication of the Costs SI and Initial Obligations Code. Our aim is to grow the digital market and encourage the use of licensed online music services. The Digital Economy Act will play a significant part in achieving this goal. With its implementation back on track we look forward to working with government, OfCom and other stakeholders in the weeks and months ahead”.

John Smith, General Secretary of the Musicians’ Union: “We now have a great opportunity through the DEA to educate consumers about how to avoid illegal sites, access legitimate content which is widely available, and protect themselves online. We urge ISPs to begin building their systems now and to work constructively with rights holders, OfCom and government to get notice-sending up and running as soon as possible”.

Geoff Taylor, Chief Executive at record label trade body BPI: “It’s time to get down to business and start implementing the law to educate consumers about illegal downloading, so that artists and creators are fairly rewarded for their hard work”.

John McVay, Chief Executive at film industry body PACT: “Much has been said about the DEA which is simply untrue. Like many other countries, we are taking action to turn the tide against the growth in online copyright theft – the single largest threat facing our sector. The DEA is a legal, proportionate and reasonable measure – a fact that has been confirmed by the High Court and the Court of Appeal”.

Richard Mollet, Chief Executive at book industry trade body the Publishers Association (and the former BPI lobbyist who pushed particularly hard for the DEA back in 2010): “Infringing copyright blights the creative industries and threatens investment and jobs. The sooner we get this law into action the better”.

Christine Payne, General Secretary of actors union Equity: “It’s a good day for the UK’s two million workers in the creative sector. Two important steps have been taken, following two years of delay, that bring us closer to notice sending under the Digital Economy Act becoming a reality. These measures are vital to protect the jobs and livelihoods of workers in the creative industries and will help ensure we continue to make high quality creative content in the UK. We will be studying the detail of today’s Costs SI and Code carefully and look forward to working with the government and OfCom to progress them as quickly as possible”.

Needless to say, long-term critics of the DEA’s copyright provisions were less welcoming of the latest draft, even though OfCom would argue that it has introduced measures to protect net users as well as copyright owners. Most opponents have honed in on the appeals process outlined in the code, because the new draft actually narrows the grounds on which an accused file-sharer can dispute allegations made against them (and they will still have to pay £20 for the privilege).

Though, that said, at this stage the only ‘strike-three’ sanction available to rights owners is to sue persistent file-sharers for copyright infringement (as they could already), and if any such cases got to court wider arguments would have to be considered.

Responding negatively to the latest code, Open Rights Group’s Jim Killock said: “Digital revenues are going up, the music and film industry are moving in the right direction, yet this cumbersome policy is still lumbering forward. OfCom are being asked to put lipstick on a pig with this code. The appeals are a joke. The government has decided that ‘I didn’t do it’ is not a defence. Some people will almost certainly end up in court having done nothing wrong”.

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