Digital Economy Act: Online Infringement and Cost-Sharing Consultation

April 6, 2010

Even before the passing of the Digital Economy Act 2010, and notwithstanding reassurances about delayed implementation and ‘super-affirmative procedure, the Department for Business Innovation & Skills has pressed on with plans to deal with online infringement of copyright. It has issued a consultation paper which sets out the Government’s proposals for the sharing of costs relating to the initial obligations for addressing the problem of online infringement of copyright. The obligations are said to take forward Recommendation 39 of the Gowers Review of Intellectual Property (2006) which addressed the issue of illicit use of peer-to-peer file-sharing (P2P), the recent BIS consultations on possible regulatory options (2008 and 2009) and Action 13 of the Digital Britain Interim Report (2009).

The consultation has a specially truncated period. Consultation closes on 25 May and the paper indicates an intention for an Order to be in force by 20 July. Given that the Shadow culture secretary described the Bill as a ‘weak, dithering and incompetent attempt to breathe life into Britain’s digital economy’ and a ‘digital disappointment of colossal proportions’ and given also general Liberal Democrat opposition to the more controversial parts, the result of the General Election might impact on this timetable.

The paper is available here.

SCL has made plans to offer a response to the paper. Scott Fairbairn is co-ordinating the SCL response. SCL members are invited to attend a meeting on Monday 19 April 2010 at CMS Cameron McKenna LLP in London at which a response on behalf the Society will be formulated. 

Readers might note that in the Second Reading debate, the Shadow Minister (Jeremy Hunt) made the following observations:
‘There are quite long time gaps before it will be possible for a Secretary of State to lay regulations before the House to allow, for example, for the suspension of internet accounts. There is a period of time during which we can come to understand the likely impact of these regulations and how they could be framed in order to avoid unintended consequences.
One thing that particularly concerned me about the drafting of the regulations at an earlier stage was the chilling possibility that a rights holder could contact an internet service provider directly and say, “We’re concerned about this website. If you don’t block access to it we’ll get a court order, and you’ll be lumbered with the costs because you haven’t behaved reasonably.” [Another MP] raised the issue of costs. It is very important to frame costs issues so that only where a court order has been properly obtained-in other words, where there has been due process-could access to a website be blocked.’