By Dugie Standeford for Intellectual Property Watch
A groundbreaking agreement between the UK government, major internet service providers (ISPs) and the music and film industries could signal that efforts to engage ISPs in fighting digital copyright piracy are gaining momentum. The pact is part of a government plan to quell unlawful peer-to-peer file-sharing through industry codes of practice overseen by telecommunications regulator Ofcom.

The government-brokered memorandum of understanding (MOU) was signed by several government departments, the British Phonographic Industry and Motion Picture Association, and Britain’s six largest ISPs – British Sky Broadcasting, British Telecom, Carphone Warehouse, Orange, Tiscali and Virgin Media. It aims to cut illegal file-swapping significantly within two to three years and to change consumer attitudes toward copyright infringement.

Content producers and distributors committed to work together and with Ofcom on codes of practice covering standards of evidence for identifying illegal uploaders or downloaders, actions against alleged infringers, actions against repeat or criminal infringers, indemnity arising from incorrect allegations of file-sharing, and routes of appeals for consumers. In addition, signers said they will try to educate consumers about the value of copyright and the need to stop unlicensed sharing.

The MOU also requires the parties to boost efforts to make attractively packaged content commercially available to consumers in a range of user-friendly formats. They agreed to develop a process for notifying ISPs’ subscribers when their accounts are being used for illicit file-swapping and pointing them to legal alternatives. To start, the six ISPs agreed to a three-month pilot-test in which they send notices to 1,000 customers per week identified to them by content industries as having been engaged in illegal file-sharing.

The agreement also calls for industry discussions, hosted by Ofcom, on how to deal with repeat infringers. Possible solutions could include internet traffic management or filtering, and content-marking to make it more easily identifiable. In addition, the MOU said, rights owners will consider prosecuting particularly serious infringers in appropriate cases.

The MOU is part of a government plan, set out in a consultation published on 24 July, for light-touch, co-regulatory approach to digital piracy. It envisions industry self-regulation through codes of practice, overseen by a regulator tasked with approving the codes, and a requirement imposed on ISPs to take action against subscribers identified by rights holders are infringing copyright on P2P networks. ISPs who chose not to take part in the self-regulatory arrangement would still have to have effective policies against unlawful file-sharing.

The consultation also seeks input on alternative regulatory approaches. These include streamlining the existing process by requiring ISPs to hand over personal data relating to a given internet protocol address to rights owners on request, without need for court action; or forcing ISPs to take direct action themselves against claimed file-swapper.

Other options are to authorise a third party body to judge whether there is sufficient evidence to direct ISPs to take action against an individual users, or to force ISPs to allow installation of filters to block infringing material or filter it themselves.

Possible Precedent for Other Countries

The UK Internet Services Providers’ Association, British Phonographic Industry, British Music Rights, Association of Independent Music and UK film industry welcomed the MOU and the government’s regulatory approach, saying it signals the growing intertwining of their businesses.

The agreement “shows that the process of engaging ISPs that was set in motion in France last year is gathering real momentum internationally,” International Federation for the Phonographic Industry Chairman John Kennedy said. Last year, French ISPs agreed to try filtering infringing files (IPW, European Policy, 27 November 2007) and French President Nicolas Sarkozy wants a “graduated response” regime in which alleged infringers are given two warning notices before their Internet access is terminated.

The MOU seems to show that copyright owners, indeed have rights which must be respected, any decline in infringement is welcome due to copyright’s benefits to the economy, and industries with different backgrounds and economic underpinnings can work together without being compelled by a government, US-based Copyright Alliance Executive Director Patrick Ross blogged.

“Those of us [in the United States] can watch this positive experiment and learn from it,” Ross wrote.

The UK proposal does not mention termination of service, but “such a course of action is not ruled out,” the Open Rights Group (ORG) said. It is also concerned that consumers will be left out of negotiations on the code of practice to deal with repeat infringers. The way to fight P2P file-swapping is to give consumers legal, attractive and competitive alternatives, the organisation said. However, unlike its proposed enforcement measures, the MOU does not mandate a timetable for such services, it said. The proposal “has its priorities wrong,” the ORG said, “preferring criminalising consumers over catering to them.”

The consultation closes on 30 October.

Dugie Standeford may be reached at info@ip-watch.ch.