The Department for Culture, Media and Sport (DCMS) has been facilitating behind-the-scenes discussions between rights holder groups, internet service providers (ISPs) and other stakeholders in an attempt to formulate a new code of practice around website blocking, according to the documents obtained by digital rights campaigners the Open Rights Group (ORG).
In a meeting on 19 September Culture Minister Ed Vaizey said Government did not want to introduce new regulations on website blocking "unless necessary" and that the "target of action should be the 50-60 most egregious websites," according to the minutes from the meeting.
Plans to introduce new website blocking regulations under the Digital Economy Act (DEA) were shelved in August after Ofcom, the UK's communications regulator, said that the prospective court processes needed to authorise website blocking, as set out in the legislation, would be too slow.
However, according to the rights holders' proposed new code, a new "rapid judicial procedure is appropriate". The draft code has been created by the British Recorded Music Industry (BPI), Motion Picture Association (MPA), Producers Alliance for Cinema and Television (PACT), Premier League and the Publishers Association.
"Given the serious damage caused to the UK's creative industries and digital economy every month by sites that are substantially focused on infringement, it is appropriate that key stakeholders, assisted by Government, should put in place a mechanism that allows access to such illegal sites to be blocked under a swift, affordable and objective procedure," the rights holders' proposals (7-page / 254KB PDF)said.
Under the proposed new code rights holders would identify "substantially infringing websites" based on "fair and proportionate" criteria and then request that the websites take down infringing content. If websites do not comply with the request, rights holders should then be able to apply for a court order forcing ISPs to block their customers' access to the websites.
The terms of the order would be pre-agreed with ISPs and require them to "take technical measures" to block access to "each and every IP address from which the website operates or is available", the proposed code said. ISPs would also have to agree to an application for a court injunction that ordered them to use "deep packet inspection" blocking measures "utilising at least summary analysis in respect of each and every URL available at the website and its domains and sub domains," the proposals said.
Under the proposals ISPs would not oppose the rights holders' application for the order and would instead act "expeditiously" to implement the measures if the court orders it do so.
The rights holders said that the process would enable faster access to blocking measures and would allow judges to "use the discretion conferred" by the Copyright, Designs and Patents Act. Under the Act courts have the power to grant an injunction against an ISP if it had 'actual knowledge' that someone had used its service to infringe copyright. Earlier this year the High Court made an order under the Act forcing BT to block customers' access to Newzbin2 – a copyright-infringing website – following an application by six major film studios.
"Provided that the agreed scheme and Code are properly implemented, [court order] applications could feasibly be dealt with in less than one hour," the rights holders' proposals said.
ISPs would need to develop an "automated blocking process" if they do not already have one, rights holders said.
Websites would only qualify for a blocking order if rights holders deemed them to be "substantially focused" on copyright infringement, the rights holders said. Their assessment would be based on "fair and proportionate" criteria, they said.
"The evidence would need to be sufficient to reasonably identify that a website is substantially focused on infringement," the proposals said.
Rights holders would assess whether sites actively encourage infringement, including by judging whether the sites take "affirmative steps to foster infringement," are "generally aware of substantial infringement by users" or are generating revenues from user infringement "as part of [their] business model[s]," the proposals said.
Rights holders would also take into account whether a site "induces, incites or persuades the primary infringer (the end user) to engage in copyright infringement", and whether it is part of a "common action to secure acts which in the event prove to be individual identified acts of copyright infringement".
Further assessment would consist of reviewing whether the site provides users with the means to infringe, and whether it can or does control those means "or adopts a supervisory role in relation to users' activities" or if it "provides a technical system that focuses on infringing works," the proposals said.
If the website "is operated in knowledge of the copyright infringement that it facilitates and/or has actual knowledge of infringement and is in a position to take reasonable steps to prevent the infringement but fails to do so" and "materially intervenes in making the identified infringing copies available to a new audience" it may be classed as "substantially focused" on infringement, the proposals said.
Rights holders said they would consider its assessment of websites according to the criteria "in the round" and in view of the overall aim to "tackle websites that are 'substantially focused' on infringement," the proposed code said. The criteria should also be applied "to sites where a substantial part of the website fits the criteria ... and where the site operator is able to take readily available steps to prevent the infringement but fails to do so after notification," the proposals said.
Consumer Focus, which has been present at the Government-chaired discussions, has expressed scepticism over the rights holders' plans. In response (7-page / 254KB PDF) to the proposed code the group said that it was "premature to suggest that an industry body can be entrusted with deciding whether websites comply with the law".
The ORG said that the Government-chaired discussions on website blocking were imbalanced because Consumer Focus has been the sole representative of the views of the public in the discussions.
"As this is not a formal policy or Government regulation, the discussions are proceeding on the basis that the policy makers are merely facilitating other stakeholders reconciling their interests," Peter Bradwell of the ORG said in a statement.
"This becomes a problem when the outcomes of the relationships, codes or measures that stem from these discussions have a detrimental effect on users, consumers and citizens, and when those broader interests do not have their voices represented," Bradwell said.
Bradwell also criticised plans to identify 50 or 60 copyright infringing websites. He said this objective did not tally with DCMS' recent admission on the evidence it has about online copyright infringement.
"[Ed Vaizey] ... makes reference to the need to have a list of '50 or 60 of the most egregious websites'," Bradwell said.
"Only recently the DCMS told us that they have no evidence of the effects of copyright infringement, or of the effectiveness of different ways of dealing with it. Yet the aim is '50 or 60' websites. Which ones? Why is website blocking the best way of tackling them? What evidence is there that this is the case?" he said.
A DCMS statement said that “the Government will continue to facilitate discussions between ISPs, rights holders and others on industry proposals for tackling sites that are dedicated to the infringement of copyright".