Digital Top Stories

UK three-strikes could now be delayed to 2017

By | Published on Friday 31 May 2013


The British three-strikes system set out in the 2010 Digital Economy Act is unlikely to get going until at least 2016, according to digital policy blogger James Firth, who cites various Westminster and Whitehall sources in his post on the SRoC site.

As much previously reported, the copyright section of the DEA included provisions to help the content industries tackle online piracy, with the so called ‘graduated response’ system prioritised. Under the programme, heavily lobbied for by the music and other copyright industries, internet service providers would be obligated to send warning letters to customers who the rights owners reckoned were accessing illegal sources of content. The letters would demand the customer cease using unlicensed content services, with some to-be-determined penalty (eg bandwidth throttling) if they failed to comply.

Although rushed through Parliament in 2010 in the closing months of the last Labour government, with the support of the Conservative Party who then spearheaded the subsequent coalition executive, the three-strikes system outlined in the DEA is yet to go live. Efforts by some big ISPs to block the moves through judicial review have hindered things a little, though disagreements within government as to how exactly the system should work, and between the rights owners, ISPs and political types on who should cover the costs, have been the real delay.

With possible launch dates – ie the point at which a first batch of warning letters could be mailed out – constantly pushed back, last year a rep for the government’s Department Of Media, Culture & Sport admitted letter sending was now unlikely to happen until 2014 at the earliest. A reworked proposal of how three-strikes might work was then published last June by media regulator OfCom, which would likely manage any graduated response programme, resulting in yet another round of consultation.

According to Firth, one big problem remains how the programme would be funded. Although the current plan is a 75%/25% split between rights owners and net firms in covering the costs, Firth says that – aside from continued grumbling by the ISPs as to why they should pay anything – the Treasury has raised concerns that if the net companies are forced to contribute, then that’s a levy rather than a fee, and therefore the Treasury would have to be involved in shaping the initiative. To date the DMCS has had exclusive government responsibility for the graduated response programme.

In addition to that, Firth’s sources say that while the government in theory remains committed to the DEA’s copyright provisions, ministers fear three-strikes will be politically tricky, especially with some of the big ISPs still briefing against it, and news stories reporting on just how well the British music industry is doing despite rampant online piracy.

All of which means any launch will likely be pushed to beyond the next General Election, hence 2016 now seeming like the earliest date for warning letters to go out, with some already reckoning 2017 might be a more realistic start date, not least because the implementation of three-strikes might actually require some amendments to the DEA itself, which would likely be done via the also-now-delayed new Communications Act.

None of which will please the big rights owners who have been getting increasingly impatient about the constant DEA delays. Though – of course – in the meantime the content owners have been busy getting web-blocking injunctions against prolific file-sharing websites, something the DEA didn’t prioritise, but which the music and movie industry discovered was possible under existing copyright laws.