Wednesday 31 July 2013

Connectivity, Content and Consumers: Britain’s digital platform for growth

Under cover of the slightly hackneyed image at the top of this post, the Government yesterday announced their major strategy paper on the media and telecoms industry, entitled "connectivity, content and consumers: Britain's digital platform for growth".

If you are wondering why you have not been reading a lot about this exciting new paper, either it is summer, or just maybe there were almost no new government policy announcements in it at all, just a reheating of existing positions and policies.

So what is in it (if anything) for the busy copyright lawyer.  Luckily, the answer is sufficiently succinct that I am setting out the paper's every word on the topic below - other than the mention of the word copyright in the executive summary of these provisions and in the Crown Copyright notice (which is of course acknowledged), here it comes...

Intellectual Property
The ability to protect intellectual property (IP) goes to the very heart of the success of our creative industries, providing an incentive to develop, invest in and exploit valuable works. The UK’s IP framework is therefore an essential consideration for potential investors. As part of the Government’s wider programme of modernising the copyright system to meet the challenges of the 21st century following the Hargreaves Review of IP and growth, we are working with all parts of the creative economy to explore ways to make it less easy to access websites that are based on infringing copyright or that promote illegal activity. We are encouraging industry to develop its own solutions [so as to avoid having to do much ourselves??] in collaboration with enforcement authorities and key areas where we are seeing progress include:

• Payment: Credit card operators and other payment facilitators such as PayPal are working with enforcement authorities and business to remove such facilities where there is clear evidence that sites are deliberately and criminally infringing copyright. This is a voluntary approach, involving payment companies and the City of London police. Pioneered by the music industry, it is now being adopted more widely and
appears to be working well.

• Advertising: The Digital Trading Standards Group (DTSG) has launched new selfregulating principles for the digital advertising industry, and copyright owners are working with the Police to draw up a register of infringing sites from which brands may want to disassociate. DTSG’s principles will encourage increased transparency between advertising organisations and brands about placement of ads. Brands will have greater opportunity to instruct advertising agencies not to place their ads on any site on the infringement register, which will be managed by the National Fraud Intelligence Bureau.

• Search: Google has amended its algorithm and says that it now takes into account the number of takedown notices received for websites. This has, according to Google, resulted in a significant improvement on searches for “artist, song”, with infringing sites now appearing lower down the search results. Copyright owners remain concerned when an artist’s name is associated with a term such as “MP3 download”,
and we will keep this under review [while hoping we don't have to do anything?]. We expect to see Google, as well as other search engines, working with copyright owners to explore additional improvements.

• Site blocking: Copyright owners are now increasingly using s97A of the Copyright, Designs and Patents Act 1988 to tackle infringing sites by seeking injunctions that require ISPs to block access, for example, to The Pirate Bay. This takes time and money, but with more cases the court procedure is becoming increasingly streamlined, and that means that we have been able to announce that we will remove legislation that largely duplicates these provisions from the statute book. It is important that the standard of
evidence required and the discipline of requiring a court judgement is maintained so that the process retains the confidence of both ISPs and the general public [with no return to the bad old days of ACS law threatening letters]

• International: The ability to encourage creators of content to start and grow their businesses in the UK depends on supportive legislative and regulatory frameworks across the EU. We closely monitor the critical work that occurs in Brussels and beyond. The European Commission launched a structured stakeholder dialogue in 2013 to deliver rapid progress through practical industry-led solutions in: cross-border access
and the portability of services; user-generated content, and licensing for small-scale users of protected material; facilitating the deposit and online accessibility of films in the EU; and, promoting efficient text and data mining for scientific research purposes.  A review of the EU framework for legal copyright is on-going, with a view to a decision in 2014 on whether legislative reform is needed. [so nothing to do for now!]

In addition, the Government announced on 28th June 2013 that it was investing £2.5 million over 2 years to set up a dedicated new police unit, within the City of London Police, aimed at targeting intellectual property crime. The unit will be dedicated to tackling online piracy and other forms of intellectual property crime such as counterfeit goods. It will be one of the first units of its kind in the world, ensuring that the UK stays
at the forefront of intellectual property enforcement.

This is the right approach. And, in parallel, the Government continues to implement the Digital Economy Act 2010 [this year, next year, sometime...], whilst encouraging industry-led alternatives, to ensure the message reaches those who are infringing. We will keep progress under review.
Taking action against infringement is only half of the picture. The legitimate market must also keep up to speed with consumer’s expectations. Legitimate offers need to be compelling and material needs to be made available in attractive, affordable and competitive ways to reduce the attractiveness of illegal offers. Education can play an important role here, and industry needs to keep up their efforts to communicate their
messages, particularly to young people. [I wonder whether government has any role in education which it could use to encourage the dissemination of such messages to young people? They don't maybe control the curriculum or school budgets or anything?  No, it must be industry that needs to keep up these efforts.]

And a bonus prize for anyone to spot the IP reference in the following section...

Access to Public Service programmes
PSB channels are brought to our living rooms by various TV platforms, such as Freeview, Sky, Virgin, and Freesat. Platforms benefit from having must-see content distributed across their services, while broadcasters benefit from having access to mass market audiences. But there is a growing debate around the payments that are made between broadcasters and platforms. The Government wants to see zero net charges, where the fees for access to the main platforms and for PSB channels cancel each other out. This is not too far removed from the current market position, and recognises the benefits to platforms, the PSBs, and audiences from being able to access awardwinning, PSB content. This mirrors the arrangement already in place for PSBs and cable platforms, where no charges are made – an arrangement that we want to see preserved. We are looking closely at how we can help achieve this without allowing other kinds of online services to exploit PSB content, with no benefit flowing to the PSB. We will launch a consultation on this in the autumn, before bringing forward legislative proposals if required.

Yes - you got it "without allowing other kinds of online services to exploit PSB content, with no benefit flowing to the PSB" is government speak for "we need to rethink section 73 CDPA in the light of the TV CatchUp case" - a topic that was also raised in Parliament at Report stage in the IP Bill on 23 July.

So now MPs and peers can all go off for their summer holidays at peace knowing that they are putting the IP world to rights - MPs return to Parliament on 2 September and peers on 8 October.  Happy Holidays!!

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