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Creative industry hits out at delay to workings of anti-piracy code

UPDATED: A hold-up to the introduction and operation of a new anti-piracy code can be blamed on the "delaying tactics" of two internet service providers (ISPs), a body representing rights holder groups has said.26 Apr 2012

A civil servant with the Department for Culture, Media and Sport (DCMS) told a conference earlier this week that letters warning internet users about copyright infringement they are suspected of being involved in will be sent out for the first time in 2014 – a year later than previously estimated by DCMS.

The Creative Coalition Campaign, which represents a host of rights holder representative bodies including the Motion Picture Association, British Recorded Music Industry and the Publishers Association, said the actions of BT and TalkTalk had caused the delay.

"We are disappointed that the first letters will not be sent out until 2014, four years after the Digital Economy Act (DEA) came into force," a spokesperson for the CCC told Out-Law.com. "This is down to the delaying tactics of BT and TalkTalk who have dragged the Act through the courts." 

TalkTalk declined to comment on the criticism. BT said court action had been justified.

"Our intention has always been to seek clarification from the courts that the DEA is consistent with European law, and legally robust in the UK, so that everyone can be confident in how it is implemented," a BT spokesperson told Out-Law.com. The company said it is waiting to see what "steps" the Government and Ofcom take on the "implementation" and "timetable" of new anti-piracy rules under the DEA.

The Digital Economy Act (DEA) was pushed through Parliament in the period shortly before the 2010 General Election and has led critics to claim the laws had not been properly scrutinised.

Under the DEA communications regulator Ofcom is required to publish a code of practice setting out the procedures ISPs must follow to combat illegal file sharing. Ofcom published a draft code in 2010 but finalised rules have still to be published.

In its draft code of practice Ofcom said that internet users should receive three warning letters from their ISP if they are suspected of copyright infringement online. Details of illegal file-sharers that receive more than three letters in a year would be added to a blacklist, the draft code said. Copyright holders would have access to the list to enable them to identify infringers.

Under Ofcom plans individuals would have to pay £20 in order to appeal against a notification letter. Cases would be heard by an independent appeals body, although subsequently Ofcom has said the Government had asked it to reduce the scope of this right.

Under sections 17 and 18 of the DEA other anti-piracy measures can be drawn up at the behest of the Culture Secretary. Those measures would see courts decide whether to force ISPs to block access to pirated copyright works. In August last year the Government announced that it had no plans to bring any new regulations under sections 17 and 18 into law "at this time". The Government has however been chairing meetings between creative industry groups, ISPs and other stakeholders aimed at fostering voluntary frameworks for combating online piracy.

In a judicial review ruling in April last year the High Court rejected claims by BT and TalkTalk that the DEA violated EU laws.  

The ISPs appealed arguing that the DEA breached EU laws on data protection and privacy. However, in March the Court of Appeal rejected those claims and said BT and TalkTalk also failed to convince it that the DEA was "incompatible" with provisions set out in the E-Commerce Directive. That law generally prevents service providers becoming liable for the transmission of communications over their network.

The Court also rejected claims made by the ISPs that the DEA was unlawful because the Government had failed to give the European Commission enough time to scrutinise parts of the legislation, according to the bodies.

However, the ISPs did successfully argue that they should not be required to pay 25% of the "case fees" that would stem from ISP customers bringing appeals against warning letters they could receive for allegedly infringing copyright under measures allowed for by the DEA. The ISPs will still have to pay 25% of the costs they incur to comply with their obligations under the Act after the Court ruled that it was lawful to impose the charge on them.

A spokesperson for DCMS told Out-Law.com that despite the delays, the department was "continuing to implement the Digital Economy Act" and reiterated that it "expect[s] the first letters [under Ofcom's code] to go out in early 2014."

The DCMS spokesperson said that the judicial review rulings had caused the date to slip. Because of the ruling the "Cost Sharing Statutory Instrument will need to be changed and as a result Ofcom will need to change their code," they said. "Both will be published when they are ready."

Rights holder groups believe the DEA is pivotal to efforts to combat online copyright infringement.

"The High Court and Court of Appeal found the Digital Economy Act to be a fair, focused, proportionate and efficient system both for consumers and to tackle the enormous damage caused by online copyright infringement," the CCC spokesperson said. "The DEA makes it possible to conduct a mass consumer education programme which has proved to be very effective in other countries." 

"Spain, France, the US and South Korea all have measures in place to protect their creative industries and the livelihoods of people who work in them. Creators and rights owners already invest heavily in protecting their works but need the added weight that the DEA measures bring. We need urgent action in the UK to protect future growth and nearly 2 million jobs in our sector," they said.

Following the Court of Appeal's ruling last month both BT and TalkTalk said they would consider what action, if any, to take next. TalkTalk previously suggested it may be willing to take the case to the European courts.

"We are reviewing this long and complex judgement and considering our options," TalkTalk said in March. "Though we have lost this appeal we will continue fighting to defend our customers’ rights against this ill-judged legislation."

In February shadow Culture Secretary Harriet Harman said the Government should commit to a "clear timetable" for implementing the DEA "including getting on with the notification letters and publishing the code of practice". The deputy Labour leader said "now is the time" for the measures to be introduced.

Editor's note, 25/04//2012: This story has been updated, adding BT's statement.

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Expertise in Copyright

Copyright is an extremely valuable, often unrecognised or misunderstood right which protects a whole range of original materials including written materials, software, artistic materials, music and dramatic works. It arises automatically without the need for registration in most countries and protects these materials from unauthorised copying. It is essential in business to identify such rights, ensure they are owned by the correct entity, properly protected, enforced and exploited.

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