UK delays tough action in file-sharing fight

From the Pirate Bay ruling in Sweden, and France’s controversial ‘three strikes and you’re out’ law, through to the UK’s Digital Britain report, this year has seen significant developments in the battle against digital piracy.

“Illegal file sharing is theft and the ISPs are accessories after the fact. They need to be told”

Paul Webster, Kudos Film & Television

Governments are facing a major challenge to balance the issues of revenue losses in the creative industries and the loss of control over intellectual property rights, against restrictions to individuals’ internet access.

UK prime minister Gordon Brown has declared internet access to be as vital as utilities such as gas and water, promising universal broadband access by 2012 and proposing a $2.4bn (£1.5bn) investment in next generation super-fast internet. Many in the creative industries believe faster download speeds will lead to an increase in online piracy in the UK.

But Brown’s comments made it clear the UK, unlike France, Taiwan and South Korea, plans to stop short of cutting off repeat offenders’ internet access.

France’s plan to ban copyright infringers from using the internet, after three written warnings, is one of the strongest approaches to illegal downloaders to date. Taiwan has passed similar legislation, with other territories, including Germany, also considering these measures.

The next step in the process is for the creative industries and ISPs to write a code of practice to underpin the notification scheme

Dan Glickman, chairman and chief executive of the Motion Picture Association of America (MPAA), which has been working with governments and industry bodies worldwide on piracy, describes ‘three strikes’ as “a serious model, very efficient”.

The Stockholm District Court took the hardline decision to jail the four founders of The Pirate Bay and fining them $3.5m after finding them guilty of facilitating file-sharing. The organised and commercial nature of The Pirate Bay, which bills itself as the world’s biggest BitTorrent tracker, strengthened the case against them. “It’s a deliberate way to deal with a deliberate offender,” says Glickman.

By comparison, the UK has offered a graduated response in its Digital Britain report, which proposes new powers for media regulator Ofcom to force internet service providers (ISPs) to notify customers if they are infringing copyright. If they continue to offend, ISPs will hand over their details to the rights owner and a civil action can be pursued.

If illegal file-sharing has not been reduced by 70% in a year, Ofcom will be given powers that will allow it to force ISPs to reduce the service provided to illegal downloaders; the so-called ‘technical measures’ will allow URLs to be blocked, speed to be reduced and filtering applied.

The official industry reaction is broadly positive. As UK Film Council head John Woodward points out, prior to publication, the industry did not know for certain the Digital Britain report would empower a statutory body to oversee the ISPs.

Yet the industry remains frustrated by the slow speed at which the proposals will be implemented. It will take at least a year to pass legislation giving Ofcom its new powers, and although an alliance of creative industries is already trialling the notification system, ISPs do not have to act until that happens.

“We like the direction of travel,” says Woodward, “but we don’t like the speed.” This first year or two, during which rights holders still have to pursue transgressors through the courts, is seen by many as an unnecessary delay ahead of Ofcom being given the power to force ISPs to curb access to the internet.

Producer Paul Webster, head of film at Kudos Film & Television, says: “I don’t see why it has to be a graduated response. It is theft and the ISPs are accessories after the fact. They need to be told.”

His views are echoed by Paramount Pictures International president Andrew Cripps, who adds: “It’s not enough to just write to copyright infringers.” However, he also points out that Digital Britain failed to address cinema camcording, the root of physical and digital piracy, which is still not illegal in the UK, unlike many countries including the US.

“It’s very frustrating as we had reports that people were in cinemas camcording Transformers: Revenge Of The Fallen on its opening weekend. All they can do is remove them from the cinema.”

The ISPs, some of which are content providers themselves, appear resigned to the monitoring role they will have in tackling piracy, although a source at a UK-based ISP questions how it will be done. He adds: “We don’t get the impression rights holders will pursue the cases if we do hand over details. If I were the government, I would be annoyed at how dismissive some of the creative industries have been. They just want to go to the technical measures.”

Meanwhile, mobile and broadband operator Orange says it “does not want to stand in the way” of rights holders and their commercial rights.

However it adds that it will notify its customers when rights holders have accused them of illegal file-sharing, suggesting it does not plan to monitor users itself.

The next step in the process is for the creative industries and ISPs to write a code of practice to underpin the notification scheme. The two sides developed a memorandum of understanding (MOU) last year, following some success for a similar bilateral strategy in the US, which has yet to see any legislation in the area.

The MOU is expected to form the basis for new discussions with the rest covered at meetings of the new Rights Agency, which at this point will be little more than a talking shop. Sources say early meetings between the two sides, to develop the MOU, were “frustrating” and there is agreement from all parties that more “bad tempered” and difficult conversations will need to be held before phase one of these proposals can even be introduced.

With a consultation yet to be started on the most effective mechanism for measuring the success of the notification scheme, The Pirate Bay founders - richer from its recent sale - will have completed their sentences before the clock has even started to tick on offenders in the UK.