P2P File-sharing: SCL Response to the BERR

October 30, 2008

In July 2008 the Department for Business, Enterprise and Regulatory Reform (BERR) began a consultation exercise. According to BERR, ‘This consultation is intended to set out and gather views on a proposal for a co-regulatory approach that could be adopted in order to facilitate and ensure co-operation between Internet Service Providers (ISPs) and rights holders to address the problem of illicit use of Peer-to-Peer (P2P) file-sharing technology to exchange unlawful copies of copyright material. This takes forward Recommendation 39 of the Gowers Review of Intellectual Property which addressed the issue of illicit use of P2P. The consultation also identifies and seeks views on other potential options and calls for evidence on issues related to illicit use of P2P.’

SCL has now responded to the call for views, with The SCL Internet Interest Group taking the lead. Following an open and lively meeting of SCL members, the Group’s Co-Chair, Gillian Cordall of Maclay Murray & Spens LLP drafted the response.

Two general observations stand out. First it is suggested that, by focusing narrowly on P2P, other methods of illegally sharing video and film may be overlooked. Secondly, the response includes a view that ‘other than the threat of legislation, there was perhaps little incentive for ISPs to support the recommendations made by BERR for a co-regulatory solution, particularly if smaller ISPs could effectively opt-out in any event. The ability for any ISP to opt-out needs to be looked at carefully and its impact assessed’.

Perhaps unfashionably, but with real conviction, the response takes issue with the assumption that the co-regulatory approach on which views are sought is necessarily a better and cheaper way of dealing with persistent infringers than the current regime.  It suggests that the current method of obtaining IP addresses using Norwich Pharmacal orders can be both quick and relatively cheap. The current regime can work well for rights owners, states the response and the judicial oversight provides a necessary and essential safeguard.

The response also suggests that there should be room for a role for consumers or consumer organisations in any self-regulatory approach: ‘the right of appeal by consumers against unfair targeting or untrue allegations is a vital part of making this approach workable’.

The full response can be read here.