UKIPO: Copyright Owners And Internet Providers, Please Regulate Yourselves!

The United Kingdom Intellectual Property Office on Monday published a proposal for a “rights agency” that would tackle problems related to digital copyright. The envisioned agency that would be managed and funded by rights owners and take up a two-fold task by facilitating the creation of a digital market and preventing and reducing online piracy.

The rights agency, proposed to have a staff of up to 50 persons and £2.5 million British pounds (CHF4.8 million Swiss francs) in member fees, is part of the British government’s “Digital Britain” package. The package also contains legislation against illegal peer-to-peer (P2P) file sharing similar to plans currently discussed in the French Parliament (IPW, European Policy, 23 February 2009).

The UK rights agency proposal is available here [pdf].

Digital Markets

“Put at its most ambitious, our vision for a rights agency is to facilitate a major change of approach across the whole value chain as to how content is provided, packaged and sold to consumers,” Stephen Carter, UK minister for communications, technology and broadcasting, and David Lammy, minister of state for higher education and intellectual property in the Department for Innovation, Universities and Higher Skills in their introduction to the consultation document.

Consumers, they said, were not longer prepared to be told when and where they could access content they want. “They want the content, it’s not offered for sale in the way that they want it, but they can get it easily and for free from other sources,” they said. The willingness to pay for content had thus been undermined by content offers over P2P file-sharing.

Building a digital content market and changing the way that businesses work was a genuine task for the private rights owner-managed rights agency. The UK Intellectual Property Office hopes especially that the agency will organise rights clearance and “make deals easier.” Without attractive, legitimate offers, the fight against piracy will be difficult to win, warn the authors of the proposal.

So far it has been difficult for new ventures to clear the rights. Internet service providers, for example, might reach agreements with record companies to distribute their repertoire only to discover that they also needed to negotiate with music publishers. The BBC went through five years of negotiations to clear the rights for its iPlayer offering. Besides moderating such talks, the rights agency might help to standardise rights clearance and digital rights management (DRM) labelling (technologies used to control use of copyrighted material online). It also might consider a voluntary rights registration database. ISPs and search engine providers might be won over as partners in the fight against copyright once a share of monetisation of the content goes to them, the IPO said.

Regulate Yourself – Or We’ll Do It For You

In a similar carrot-and-stick approach, the proposal hints at how the agency has an influence on government regulation with regard to copyright infringement. The fight against copyright infringement using P2P networks is the second big task for the rights agency. The private agency is supposed to be a “gateway in to the legal remedies begins set out in p2p legislation and to an informed discussion on other potential ways to deal with persistent infringement.” It especially will develop the “code of practice” around enforcement measures against unauthorised P2P file sharing.

Steps envisaged are “protocol blocking,” or the cutting of bandwidth for infringers that have been served with a number of warning notifications by ISPs. The code with the respective rules has to be approved by the British telecommunications regulator OFCOM.

“If there isn’t evidence of a real commitment from industry to that by the time we legislate, then we will have to consider whether the legislation should go further in what it requires with less opportunity to influence how this can be done in an effective, pragmatic (and fair) way,” Carter and Lammy said. While this is not the preferred option, they said the government’s declared objective to reduce online copyright infringement “should not be doubted.”

Reactions

The UKIPO is accepting comments on the rights agency proposal until 30 March.

British and European ISP associations were cautious in their preliminary reactions. Malcolm Hutty, new president of the European ISP association EuroISPA, said they prefer the certainty of regulation to political whimsy, but ISPs want some latitude in translating political objectives into technical reality.

Monica Horten, an IP policy expert at the University of Westminster, analysed the British proposal and warned that the “use of network filtering” that is envisaged “has the potential to result in some form of censorship by the back door.” The British proposal mentions “restricting access to specific protocols” several times, contrary to the French proposal on Hadopi (Haute autorité pour la diffusion des œuvres et la protection des droits sur internet) – a public agency enforcing copyright on the internet.

Horten, author of the IPTegrity blog, wrote to Intellectual Property Watch: “As the policy is explicitly targeting peer-to-peer file-sharing, this wording implies that peer-to-peer protocols could be filtered, although the document does not appear to have given any thought as to how the criteria for the ‘restricted protocols’ would be drawn up.”

Horten also wondered why the proposal listed short, temporary internet access blocking, as this measure had been ruled out by the British government in earlier statements. The French Hadopi, for which nearly 500 amendments are being discussed in the French Parliament, shall be entitled to cut the internet access for several months.

Comparing the British and the French approaches Horten also noted that the UK proposal potentially could contravene the attempts in France to ensure that every sanction is assessed by an independent public authority.

Despite many differences, Horten thinks that the result of both approaches might be similar: “Rights-holders are in the driving seat of an agency to police copyright.”

Talks on similar approaches also are underway in Italy and New Zealand.