UK Anti-Piracy Plan A Work In Progress, Will Address ISP Role 12/03/2008 by Bruce Gain for Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)By Bruce Gain for Intellectual Property Watch The United Kingdom government’s much-anticipated release last month of its “Creative Britain” report offered few details about the direction anti-piracy policy could take in the European Union country. But government officials, Internet service providers, media groups and other interested parties are expected to hash out a final draft of a working agreement on enforcement in the coming months, according to sources. The UK government in “Creative Britain” called for the formation of a voluntary framework agreement that would mitigate illegal file sharing in order to avoid heavy handed legislative mandates. “We are encouraged to see attempts at commercial solutions to the problems of piracy involving collaboration between rights holders and ISPs [Internet service providers], and look forward to the further development of these types of solutions,” the document said. The report was issued by the UK Department for Culture, Media, and Sports, and is available here. A department spokeswoman could not disclose a timeline for work on an agreement. “Creative Britain” also contradicted the veracity of purported leaks published in the British press prior to its publication that said the report would mandate that UK ISPs would have to bear much of the burden of monitoring Internet use. A story in the Times Online, which several news reports covered, maintained that the UK government would use “Creative Britain” to outline mandates that would force ISPs to take action against users for illegal file sharing, which would involve sending alleged infringers warning letters before suspending their services. Yet, the UK government said in “Creative Britain” that it expects ISPs to play a significant role to help mitigate illegal file sharing and that it was prepared to institute legislation by April 2009 if voluntary measures do not work. “Government recognises the value of the current discussions between Internet service providers (ISPs) and rights-holders; we would encourage the adoption of voluntary or commercial agreements between the ISPs and all relevant sectors,” the document said. “While a voluntary industry agreement remains our preferred option, we have made clear that we will not hesitate to legislate in this area if required.” The role ISPs must play to aid government and industry efforts to mitigate online piracy remains a subject of controversy. ISPs maintain that it is not feasible for them to monitor and filter the Internet usage of their customers for illegal activity while they face pressures from the government and industry interests in Europe to support their efforts to crack down on illegal file sharing. In one instance, the Brussels Court of First Instance ordered Belgian ISP Scarlet in June 2007 to filter subscriber connections to prevent illegal file distribution (IPW, European Policy, 9 July 2007), while ISPs maintain that the court order is not commercially viable. Scarlet is appealing the decision. Late last year, an anti-piracy pact in France formed by French media groups, government officials, and ISPs called for ISPs to put subscribers whose IP addresses are allegedly used for illegal file downloads and uploads on notice, warning that their accounts could be terminated if illegal file-sharing activity were to continue (IPW, European Policy, 7 December 2007). However, ISP representatives said there are no plans for ISPs in France to actively monitor and filter their customers’ activities. Yet, filtering by ISPs in the UK is under discussion as the UK government prepares its final document of measures outlining anti-piracy plans, Julian Heathcote Hobbins, general counsel and deputy chairman for the UK-based Federation Against Software Theft Limited (FAST), told Intellectual Property Watch. “We have been engaging with the officials, and they have asked us about the case of filters, and about [the Scarlet] case in Belgium where the judge said you have to put a filter on,” Hobbins told Intellectual Property Watch. “We are trying to give the government some sensible feedback.” However, following the publication of the “Creative Britain” report, the Internet Services Providers’ Association (ISPA) in the UK said legislative measures mandating legal actions by ISPs would represent a flawed strategy. The ISPA referred to what it said was the current “complex legal framework” in which ISPs in the UK operate. Legislation already in place includes Electronic Commerce (EC Directive) Regulations 2002 and the Data Protection Act 1998, which the ISPA said “can limit what action ISPs can lawfully take against users’ private communications.” “These limitations are balanced against past experience of legislation in this area, which can result in cumbersome regulation and may not offer an optimal solution,” the ISPA said. The ISPA said it is in talks with the Motion Picture Association of America (MPAA) to develop a framework for a pilot project. “These discussions are continuing and the relevant government departments continue to support this process,” the ISPA said. The final working strategy the UK will present during the coming weeks is far from finalised as the different parties work out a final working framework. “The government are going to put out a consultation on this where they are going to get the interests of stakeholders and there are a number of options and contingencies,” FAST’s Hobbins said. “Prior to the consultation launch, we are engaging with government officials telling them what our issues are to give them a steer on this. Until we see the consultation document, we don’t know what the options are and what the government’s suggestions will be.” Bruce Gain may be reached at firstname.lastname@example.org. 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