DIGITAL ECONOMY ACT UK

The Digital Economy Act 2010 is an Act of Parliament which regulates digital media in the United Kingdom.  One of it’s stated purposes  is to stimulate the digital economy in the UK and build a world class digital market.

Yet there is a conspicuous absence of any provisions oriented towards improving broadband infrastructure,  or  ensuring broadband is more affordable or quicker.   Neither is there anything in the Act to address the digital divide to  ensure that the poorest in Britain have internet access.

Amongst it’s provisions are measures to deal with copyright infringement which threaten to disconnect citizens from the internet.  Those who are actually or suspected of being engaged in illegal file sharing can be disconnected from the  internet. Additionally,  Wi-fi   services can be held accountable where illegal file sharers use their services to download or upload infringing material.

Any organisation, from Universities to businesses who operate Wi-fi therefore risk having their services peremptorily disconnected.  Yet those who  operate wireless connections have absolutely no control over the activities of those who use their connection, and to police potential infringements by users of their networks  is not feasible.

There is enormous potential for the legislation to be used oppressively as a tool of censorship to stifle freedom of  speech,  and inhibit the free exchange of ideas and communication on the internet.

Music, film and publishing companies are able to force ISPs to sever internet connections of anyone they suspect is downloading infringing material.

The Act places the onus on ISPs to block download sites, reduce users’ broadband speeds, and even disconnect the connections of internet subscribers to prevent the piracy of copyrighted materials.

The Act is reminiscent of  the French HADOPI ‘three-strikes’ law.

The law imposes stricter penalties on repeat copyright infringers than previously existed, attracting condemnation and public criticism from ISPs, consumer rights groups in addition to privacy and human rights advocates.  UK ISP Talk Talk  has threatened not to co-operate  in divulging details of their users suspected of copyright infringements without a court order.

Amendments to the  Communications Act 2003 require Internet Service Providers to divulge customer details who repeatedly infringe copyright, subject to sufficient evidence being provided to them. There are potential fines of  250,000 pounds for non-compliance by ISPs who refrain from taking action against persistent offenders.

Amendments were made to the Copyright, Designs and Patents Act 1988, to increase the criminal liability for making or dealing with infringing items and making or using prohibited recordings to a maximum of  50,000 pounds.  This maximum penalty will mainly apply to large scale commercial infringement of copyright.

The Act follows the Digital Britain report June 2009, containing many of  it’s recommendations.  OfCom, the UK government funded independent telecommunications regulator,  has been granted various rights under the Act with respect to the implementation and enforcement of alleged copyright infringements.

Ofcom has been tasked with the responsibility of drafting a Code of Practice (the Copyright Infringement Code of Practice, known as CICoP) which will  regulate the implementation of the Act’s requirements. It is expected to be finalised and released for comment by May of this year.   It then has to be approved by the European Commission.

The process involves Ofcom  requesting ISPs to notify their users’ in the event they are suspected of being  involved in facilitating illegal peer to peer file sharing.  Ofcom has stated that subscribers will be provided with information about the accusations against them. The argument is that this will of course allow them to challenge alleged violations through an appeals mechanism.  However this ignores the reality that many consumers just don’t have the resources to do so, and will most likely pay the small fine attached to  infringement notices served upon them in order to avoid the huge costs involved in a contested court action.

Ofcom have already stated that they expect ISPs to retain lists of those users who have had multiple notifications which they have elected not to challenge.  Ofcom will only be able to obtain a copy of these lists through a Court Order.  The decision to disconnect internet connections of ‘multiple offenders’ is likely, by and large, to end up being a technical one.

One of the criticisms of the Act was that the contentious features of the Bill were rushed through commons with less than two hours of debate and public scrutiny.  The Bill was hurried through commons in what is known as the  ‘wash-up’, passing it’s third reading on 7 April and receiving royal assent on 8 April.  This process known as the ‘wash-up’ entails several bills being rushed through parliament ahead of the pre-election dissolution of parliament.

Yet it is one of the most contentious Acts of Parliament in recent years, containing many controversial features.  Onlookers described a level of apathy amongst most MPs about citizens’ rights, their constituents’ views, and the broader implications of the Act for democracy and the preservation of civil liberties.  Only a  minority of members seemed prepared to speak up in opposition to the Bill.

The Bill was touted as one which would enhance and preserve freedoms on the internet, however it poses a serious threat to individual rights and freedoms.  It opens up the possibility of any Government in power censoring politically unpalatable websites under the guise of copyright infringement.

There is a wide consensus that the Act will do little to prevent copyright infringement and sophisticated internet users will circumvent it by using encryption and other techniques to avoid detection. The reality is that those who are serious about defeating online copyright detection  have various tools in their arsenal to do so.   Carrying out downloading by steering traffic through a robustly encrypted VPN is just one way of avoiding detection.

The legislation is a  faltering and hopeless attempt by content industries to preserve antiquated business models through which their material has been delivered.

The introduction of such oppressive measures  should have been postponed until meaningful and transparent debate could take place.  Critics believe that this assault on the freedom of internet users was largely attributable to the lobbying of powerful and well resourced conglomerates in the entertainment industry.

The law effectively reverses the onus of proof and demands that the alleged infringer of copyright prove that they are innocent.  Even if they are vindicated they still bear the costs of attempting to challenge an alleged infraction.

There are many concerns about the legislation, with some aspects being more controversial than others. The ability to block persons from accessing websites which copyright holders claim are infringing is an encroachment of civil liberties and represents an extension of internet censorship under the pretext of copyright infringement.

There is no doubt that innocent websites have been and will continue to be blocked as has occurred under the US Digital Millenium Copyright Act to suppress free speech. Whilst in the US free speech is to some extent protected by strong first Amendment rights, there are no such provisions in Britain.

The people whose civil rights will be violated  will be relatively innocent unsophisticated users who will find themselves on the other end of infringement notices.

There are many serious threats to democratic freedoms found in this legislation.  The legislation states that if a person operates a website that is either suspected to be used for the purpose of violating copyright, or could in the future be used for copyright infringement, it can be legally blocked.

There has been a lot of discussion surrounding whether the legislation could be used to shut down sites such as youTube, facebook and google, however it seems more probable that the legislation will be used selectively to censor politically inconvenient content.

Whole families and households using the same internet connection face disconnection under the Act because of the difficulty of identifying the infringer responsible for an alleged act of infringement.  The interests of global internet constituents are under siege through the enactment of this legislation, from children using the web for education, to small businesses trying to operate their businesses legally in the new digital economy.

Those who choose to share promotional, live, and content from radio recordings risk being subject to action under the law.

Opponents of the legislation believe that the UK has set a poor standard by enacting this legislation which is likely to have many unintended consequences.  The question remains as to whether other jurisdictions will follow suit and pass similar legislation in the wake of the UK laws.

By enacting this law, nothing is achieved apart from propping up outdated analogue era business models. These businesses won’t survive the onslaught of the internet unless they make a serious attempt to engage with new technologies and adapt their business models accordingly.  If they can’t perpetuate their existence in this new environment of technological innovation, they will simply perish.

The legislation is oppressive and draconian in that it places a duty on internet service providers to effectively spy on their subscribers to assist music and film companies in enforcing suspected breaches of copyright.  ISPs who refuse to co-operate with copyright holders risk being fined.  When a suspected breach of copyright occurs copyrights holders notify the ISP of the breach, which in turn must notify the customer.

ISPs can be directed by Ofcom to sanction the accused infringer by using bandwidth shaping, site blocking, and in the extreme, account termination.

Copyright holders are able to force ISPs to block access to entire websites rather than merely preventing access to or seeking the taking down of infringing content. The legislation doesn’t seem to stipulate when an ISP is required to remove a block implemented.

In investigating suspected infringements copyrights holders download a copy of suspected infringing material and capture  intelligence about the source of the infringement,  such as the IP address accompanied by a date and time stamp.  Copyright holders can search for material and identify any unauthorised sources for their work in this way.  However in the past there have been notable problems in the accurate forensic identification of infringing material by copyright holders, with many mistakes having been made.

There are a variety of  ways in which innocent people can find themselves on the other end of an infringement notice.  For instance, there are all kinds of vulnerabilities  and threats in the online environment such as zombies which hijack internet accounts, allowing third parties to engage in illegal activities using another person’s internet connection.

There is enormous scope for miscarriages of justice to occur in a variety of ways.  Copyright laws are already in place in the UK, and there doesn’t appear to be any need to re-state them.

The recently enacted Swedish IPRED law is also aimed at preventing copyright violations resulting from illegal file sharing.  Under the legislation copyright holders can bring their suspicions to a court which will evaluate the evidence to decide whether the name of an IP holder can be released by the ISP to facilitate the bringing of a civil action.

For similar reasons, critics of this law argue that there is enormous potential for abuse, arising out of the fact that there is a major imbalance of power when individuals are at the mercy of large record and music companies who can sue them.

IPRED confers upon copyright owners the right to request information  relating to customers’ identities from ISPs if a court agrees.

Many Swedish ISPs have rebelled against the law, including Tele2, Bahnhof and Tele which have announced they will be erasing traffic data to protect their subscribers’ privacy, intelligence which is critical to the investigation of suspected breaches.

Whilst it is easy to identify the computer’s IP, in order to ascertain the identify of the person using the computer it is necessary to involve the ISP, given that IP numbers are ordinarily assigned on a dynamic basis rather than being static.

This action by the ISPs is not in breach of any law as European law on electronic communications mandates that ISPs  only store traffic data for a limited time period for purposes of billing, security and other reasons.  Some ISPs will be storing data for slightly longer periods than others before erasing it.

Copyright holders have criticised ISPs for their decision accusing them of being complicit in the commission of crime.  Copyright owners wanting to pursue violations must move very quickly to gain access to traffic data have to secure evidence of any illegal file sharing to identify the person behind the IP address.

It remains to be seen whether or not UK based ISPs will react in a similar manner to Swedish ISPs.  However Carphone Warehouse, owner of the ISP TalkTalk, have condemned the legislation and indicated they will oppose court requests to sever the internet connections of their customers.

The German Parliament, the  Bundesverfassungsgericht has stated clearly that a three strikes law would be unconstitutional under their law.

The internet is a radically new form of technology, which has fundamentally altered and revolutionised the way in which people bank, relate to one another, shop, learn, obtain news and consumer culture.  It also allows for the free exchange of information, allows for persons to vote, organise politically and participate in public life.

In summary, the internet is used by it’s global constituents for a wide range of activities, not just for illegal file sharing of copyrighted content.  It can be used, significantly, for the purpose of publishing matters of public interest, education and research and exerting pressure on legislators.

This legislation allows copyright to become a potential regulator not only of the content claimed by music, record and film companies as being owned by them, but also as a regulator of education,  health, and political participation.

The internet is seen by many as the last refuge of freedom which is being steadily eroded by the insistence of Governments invading and seeking to control this space.

This legislation threatens to transform the way users not only interact with culture but  many other aspects of society via the world wide web.

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2 Responses to DIGITAL ECONOMY ACT UK

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