Tuesday 26 June 2012

Ofcom consults: Will DEA Implementation finally leave the station?

Many of you will recall that in 2010, Ofcom started a consultation process in relation to the implementation of the ISP letter-sending provisions of the Digital Economy Act.  That process was shunted into a siding pending the judicial review process that finally hit the buffers in April as reported here.

Today, the DEA implementation train left the station again, with Ofcom publishing a further consultation notice snappily entitled "Online Infringement of Copyright and the Digital Economy Act 2010 - Notice of Ofcom’s proposal to make by order a code for regulating the initial obligations" and checking in at a mere 129 pages of PDF.  This blogger has neither the time nor the enthusiasm to summarise every last detail, but suffice it to say that the Government is proposing 19 main changes - largely procedural - following on from the last round of consultations and wants your views and mine by 26 July.

More interesting in terms of this particular journey is the second consultation published by Ofcom today entitled "Online Infringement of Copyright: Implementation of the Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order 2012" -  which observant readers of this blog might realise is about the sharing of the costs of the entire process.  Broadly speaking, content owners, perceived as the "beneficiaries" (in the sense that they have the benefit of not being deprived of their intellectual property rights) are required to pay 75% of ISPs' (efficient and reasonable) costs of implementation, along with all of Ofcom's not inconsiderable costs - set out in the table below (whether reasonable or not??) and the majority of the costs of the appeals body.

Ofcom Costs
Ofcom Costs
2010/11 2011/12 2012/13 2013/14 2014/15
£1.8m £0.7m £1.6m £3.2m £3.2m

All of which, apparently, leads to a sliding scale, depending on how many notices are sent - so if the DEA process is "only" used to serve 70,000 notices per month, across all ISPs and content providers, the cost will be £17 for each notice served on the big 4 ISPs (BT, Virgin, Sky and TalkTalk) and £45.10 for each notice served on the two smaller ISPs within the regime (O2 and EverythingEverywhere).  Luckily (!?) there are some economies of scale, so if 175,000 notices per month are served, those figures drop to £7.20 and £18.40 respectively.

Given the head of steam (sorry - this metaphor is being stretched too far now) gained by the non-DEA processes initiated by content owners against Newzbin, PirateBay etc, that is feeling like a lot of money for a process when (despite positive data for Hadopi) nobody knows how successful the DEA process will be.  However, given the fight to get the law onto the statute books and keep it there, maybe content owners feel they have no choice but to buy a ticket in order to keep the line running and keep the Government on their side.


Ben said...

In light of the recent judgments in the USA and Germany on the liabiity of operators of 'open' wifi networks I was interested to see how the Initial Obligations Code would treat coffee shops, public libraries and other open networks: Annoyingly the pdf file will not load from the Ofcom site at the moment but ISPReview said this " Mobile Broadband operators and providers of WiFi (wireless internet) services (sadly this does NOT include shared home wireless networks) are deemed to be “outside the scope of the Code“, which is because the costs of participation would be disproportionately high compared to the expected low reduction in overall levels of online copyright infringement. But this only applies to commercial operators, with libraries and similar services still potentially being vulnerable to its remit.


Anonymous said...

positive HADOPI data?
They might be positive, hardly can they be considered data...