Tuesday 16 June 2009

Digital Britain Report - first reflections on the copyright elements

Having now had a chance to scan the DB report and how it impacts on copyright, there are three key points (references are given to the paragraphs in the report to save those who don't want to read the whole thing, although confusingly, the individual chapters do not have numbering that flows right through the report, so the references are all to Chapter 4!):
1. ISP liability (paras 13 to 31) - here the Government seems to have come down closer to the content lobby than the ISP lobby. To start off with, ISPs will only be obliged to embark on a campaign of letter writing and disclosing (in response to Norwich Pharmacal orders) the details of repeat offenders BUT if that doesn't lead to 70% of letter recipients stopping file-sharing within a year, Ofcom will be under a duty to go further and, after getting approval through a Statutory Instrument, will have a menu of other remedies to force ISPs to implement, including IP blocking, port blocking, bandwidth capping and even content ID and filtering techniques. ISPs are already (according to the Guardian) complaining about who is going to pay for this, but the content owners aren't too happy with how long it might take to get to some proper graduated response either, beyond letter writing. There is a whole separate consultation on the legislation to achieve this, available here.
2. Orphan works (paras 39 to 47) - the government is going to remove criminal sanctions and introduce a regulatory framework to allow orphan works exploitation schemes to be set up - possibly with a move towards "extended licensing" through collecting societies, on the Scandinavian model.
3. Modernising copyright licensing and administration (paras 33-38) - the government commits to moving forward on the IPO's Copyright Strategy, with a promise to work on the strategy and to continue to look for ways to make it easier for people to license rights - and some suggestion about looking at the balance between creators and creative business - which sounds like meddling (in the unlikely event that the present government lasts long enough to implement this strategy, an election being due within a year).
The report also dismisses some of the other copyright-related kites that were flown during the DB process - a broader "fair use" doctrine is dismissed (para 32) as being a matter for Europe, the idea of retransmission levies (paras 54 to 61) is also dismissed, while private copying and format-shifting levies are also parked in the long grass of a government commitment to "keep this issue under review" and to invite Ofcom to assess the cost/benefit of introducing them.
So whatever happened to the Rights Agency? There is an obscure reference at the end of the Report to something the IPO is also supposed to be publishing today, but there is nothing obvious on the IPO website and the only reference in the body of the report is to the Rights Agency becoming the "Rights Authority" an industry body to help Ofcom to draw up codes of conduct to implement the proposals discussed in 1 above.

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