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In September ORG and a number of other groups met with the Minister Ed Vaizey (a meeting that we wrote up here). We spoke about copyright policy and the proposals for a new, streamlined website blocking scheme that he had been discussing in private meetings with rights holders, Internet companies and, more recently, Consumer Focus.

Around the same time, the Minister also held another meeting with this official roundtable group. Thanks to FoI requests to Consumer Focus and DCMS, we have the new proposals for a website blocking scheme and minutes from the meeting. The new suggested scheme is a revised version of the proposals outlined earlier in the year.

In the new proposals there is at least a written commitment to the need some form of due process. But the document doesn't resolve some of the most fundamental problems concerning what fair due process looks like: the desire to 'speed up' the injunction process; the process of classifying the websites concerned through an expert body; the evidence required to do so. With an eye on the due process and the rule of law, we are left with this rather insufficient concession:

"it was recognised that there would need to be legal consideration of the fine details at some point."

The Minister, according to the minutes released under the FoI, also makes reference to the need to have a list of '50 or 60 of the most egregious websites'. Only recently the DCMS told us that they have no evidence of the effects of copyright infringement, or of the effectiveness of different ways of dealing with it. Yet the aim is '50 or 60' websites. Which ones? Why is website blocking the best way of tackling them? What evidence is there that this is the case?

It is hardly surprising that critical considerations of the public interest are still taking a back seat. The attendees of the meeting, according to the FoI response from DCMS, were:

Campbell Cowie – Ofcom
Adam Smith – DCMS SpAd
Emma Ascroft – Yahoo!
Geoff Taylor – BPI
Richard Mollett – Publishers Association
David Wheeldon – BskyB
Chris Marcich – MPAA
Feargal Sharkey – UK Music
DJ Collins – Google
Theo Bertram – Google
Daniel Wood – UKIE
Rickard Granberg – Talk Talk
Mike O’Connor – Consumer Focus
Mark Gracey – ISPA
DCMS officials X 3
Tim Colbourne – No. 10 SpAd

It is worth remembering that these meetings are designed to establish processes for deciding what information people are allowed to access. If you were to design a group of people to properly consider such ideas and proposals, would it look like that list of attendees?

It falls to Consumer Focus to be the sole voice of civil society. They do a more than fantastic job - and you can read their excellent response to the proposals here  - but they should not be the token interest representing critical views on blocking. They are primarily a consumer representative group. Their presence does not change a fundamental imbalance in the attendees, whether it is the absence of broader civil society interests or legal experts.

One problem here is the model of policy making being used to develop what the Minister hopes will be a form of self-regulation.

As this is not a formal policy or Government regulation, the discussions are proceeding on the basis that the policy makers are merely facilitating other stakeholders reconciling their interests. This becomes a problem when the outcomes of the relationships, codes or measures that stem from these discussions have a detrimental effect on users, consumers and citizens, and when those broader interests do not have their voices represented.

It is about seven days since the Government told us there that interference with freedom of expression online is a matter of the upmost importance. DCMS can live up to these aspirations with a properly open process for developing their policies for the Internet age. This cannot be a two-track policy process, with a lag between Departmental action and their willingness to engage with the full range of stakeholders about it. Self-regulation should not be an excuse for invitation-only policy making.

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This event is part of our new London supporter meetings, held every 3rd Monday of the Month. Each month we meet to discuss a specific topic that ORG is campaigning on, explain the problem, explain why ORG is campaigning on it, and how everyone (and anyone) can get involved. Come along to find out more!

Details

Date: Monday 21st November 2011
Time: 7pm
Location: Green Man
383 Euston Road, London NW1 3AU

Hashtag: #orgcensor

Background

Censorship is rearing its ugly head on the UK Internet, and at the Open Rights Group, we're not happy about that. 

Copyright owners want censorship, because they don't want to take websites to court. They want websites like Pirate Bay banned, even though accessing these websites is completely legal.

Some MPs who don't like adults accessing pornography want all Internet accounts to have "adult content" banned by default, potentially putting data users "opting-in" onto a list of people at the ISP who want to access porn. The filters would have to be relatively weak, and would encourage parents to wrongly believe that children were being properly protected.

Censorship without legal backing is not only a violation of the freedom of speech, but justifies the actions of those who have genuinely broken the law. Once it is in place it, society will just battle over what to censor and ban next, rather than discussing how to deal with the problems itself.

Want to learn more? Discuss what we should do next? Or just jump into action?
Come along to our supporters meeting
Monday 21st Nov, 7pm to 9pm

We'll be having some great (expert) speakers on the subject, an opportunity to discuss censorship and its problems/merits, and get more involved in ORG's actions and campaigns.

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To coincide with the start of the London Conference on Cyberspace, eleven organisations and experts on freedom of expression and privacy online have today written to the Foreign Secretary stating that Britain's desire to promote these ideals internationally is being hampered by domestic policy.

Pointing to UK policies including proposals for greater controls over what legal material people are allowed to access on the Internet in the UK, for example through Claire Perry MP's ongoing inquiry into online child protection, Open Rights Group, Index on Censorship, Privacy International, Evgeny Morozov, Heather Brooke and others (full list below) argue that Britain's desire to promote these ideals internationally is being undermined by domestic policy. You can read the full letter below. We'll be tweeting from the conference today and tomorrow - you can follow us here and Peter Bradwell here.

"Rt Hon William Hague MP,
First Secretary of State and
Secretary of State for Foreign & Commonwealth Affairs,
Foreign & Commonwealth Office,
King Charles Street,
London.
SW1A 2AH

31st October 2011


Dear First Secretary of State and Secretary of State for Foreign & Commonwealth Affairs,

World leaders will today converge on London for the Conference on Cyberspace.

The conference will take place in the shadow of revolutions that have laid bare the relationship between technology, citizens' freedom and political power.

This has created a unique opportunity for the UK government to show leadership in promoting the rights of citizens online.

However, the government's record on freedom of expression and privacy is less than ideal. Britain's desire to promote these ideals internationally is being hampered by domestic policy.

The government is currently considering greater controls over what legal material people are allowed to access on the Internet. This is clear from recent public support by the Prime Minister, and through Claire Perry MP's ongoing inquiry, for plans to filter adult and other legal material on UK Internet connections by default. The new PREVENT counter-terrorism strategy contains similar proposals for the filtering of material that is legal but deemed undesirable.

Earlier this year the Prime Minister suggested there should be more powers to block access to social media, a policy that drew praise from China and which the government swiftly backed away from. There are also plans for more pervasive powers to surveil and access people's personal information online.

The government now has an historic opportunity to support technologies that promote rather than undermine people's political and social empowerment.

We call for the UK government to seize this opportunity to reject censorship and surveillance that undermines people's rights to express themselves, organise or communicate freely. That is the only way to both enshrine the rights of citizens in the UK and to support these principles internationally.

This government should be proud to stand up for freedom of expression and privacy off- and online.

This conference should herald a new stage in which these principles are upheld in UK policy.

Yours sincerely,


Brett Soloman, Executive Director, Access,
Dr Agnes Callamard, Executive Director, Article 19
Cory Doctorow, Fellow, Electronic Frontier Foundation
Jonathan Heawood, Director, English PEN
Evgeny Morozov, author, 'The Net Delusion'
Andrew Puddephatt, Director, Global Partners
Heather Brooke, author, 'The Revolution will be Digitised'
John Kampfner, CEO, Index on Censorship
Tony Curzon Price, Editor-in-Chief, openDemocracy
Jim Killock, Executive Director, Open Rights Group
Simon Davies, Director, Privacy International"

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Open Rights Group is moving our web hosting to Bytemark, who are donating virtual server space to us free of charge. While talking to them about options and pricing, they suggested, without prompting, that they’d like to provide us whatever we needed for free.

For ORG, this is worth at least £3000 a year in server and bandwidth costs: so it’s a highly valuable and generous donation. Thank you Bytemark!

Bytemark’s values, we believe, are in accord with ORG's. They are making considerable efforts – within UK law – to avoid pressures to act unduly against their users and customers. They have been careful to give their customers clear advice about libel law, and are strong advocates of libel reform.

We depend on donations from sympathetic people and organisations. Around half our income comes from individuals who join as supporters. The rest comes mostly from foundations. This mix keeps us independent as well as good value for money, and means we can work extremely hard, on everything from copyright reform, takedowns, through web censorship to making open data really real! Donations, from people like you and sympathetic companies like Bytemark are changing the digital rights debate in the UK.

If you would like to provide ORG with help, as Bytemark have done, we have a wish list, and we’ll credit you, if you wish.

Thank you again Bytemark! We look forward to working with you.

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Richard Stallman, founder of the Free Software Movement and initial developer of the GNU operating system, explores our digital soceity, looking into how "inclusivity" online is shaped and why without a free, fair and just digital world, this process is not necessarily a good thing.

If we are workng towards creating a more inclusive online society, it needs to be without the burden of unfair principles, that are founded on mere "practical convenience",

However, if we also judge in terms of human rights, whether digital inclusion is good or bad depends on what kind of digital world we are to be included in. If we wish to work towards digital inclusion as a goal, it must ensure it is the good kind.

But what is that good kind of digital world? Richard Stallman explains.

Stallman will be speaking on Wednesday 2nd November 2011, in the Brockway Room at Conway Hall, from 7 to 9pm.

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(Written with Jag Bahra)

Last week YouTube announced the opening of its movie rental service. This could be great news for film lovers, offering easy access to the films they want to watch. Exactly how useful this is to consumers depends somewhat on how many films are available through the service.

The availability of legal content online has featured heavily in discussions about the digital economy, most recently in the ongoing roundtables, hosted by the Minister Ed Vaizey MP, about new website blocking powers over sites involved in copyright infringement. The question is whether consumers' demand for films, music and other goods is being satisfied.

ORG, and others such as Consumer Focus, believe that more attention needs to be paid to how well the markets for films and music are serving consumers before we assume that certain kinds of enforcement measures are necessary and proportionate. We want to see thriving and innovative cultural markets that help creators and consumers get the best out of new technology.

In this context, and against the backdrop of the recent injunction won by the film industry that requires BT to block the website Newzbin2, we decided to have a look at the availability of films online. We looked at how many of the recent best-sellers and catalogues of critically acclaimed films, including the top 50 British films, consumers can legally buy or rent online. We searched five content providers, and looked at rental and purchasing prices, and compared them with DVD availability and prices.

Our experience points to a lack of availability, poor pricing and quality issues when compared with physical media. In short, we found a situation that indicates serious problems with the licensing of films for online providers. (See bottom of the post for more on what we did and tables of what we found.)

Poor availability

Given the scope of our work and the way catalogues available in these services frequently change, these results should be seen as indicative only. They point at the questions policy makers should be asking about cultural markets online.  What they indicate is not good news for consmers. Anybody who has tried renting or buying films online will probably be unsurprised at what we found.

DVDs are available for just shy of 100% of the films. But a wealth of British cultural history is simply not available through legal providers. Only 43% of the top 50 British films can be bought or rented online. Similarly, only 58% of the BAFTA Best Film award winners since 1960 have been made available.

The situation looks worse if iTunes is discounted. Excluding iTunes, only 27% of the BAFTA award winners are available, with 29% of the best British films. Only 6% of the best 50 British films are on Film4 OD or Virgin Media, with 14% available through a LoveFilm subscription and 4% through pay per view on LoveFilm.

Availability is better for recent best selling releases, but it is still very patchy. Some 86% of the best selling films on Amazon.co.uk in August 2011 can be bought on iTunes, but only 63% on blinkbox. There are few other means to purchase digital versions of films online. Furthermore, purchasing films on blinkbox for the most part means purchasing unlimited access to a stream. Only some are available to download, and for PCs only, meaning access is, for many, dependent on blinkbox's continued existence.

Rental services fare worse – 64% of the films are available to rent on iTunes, 18% are available on Lovefilm pay-per-view, 55% on blinkbox and 41% on Film4 OD and Virgin Media.

Price and quality

Digital prices do not compare favourably to those of DVDs. For the best selling DVDs from August 2011 the average price was ￡6.80. For iTunes purchases, of the films available through it's service, the average price was ￡8.88. For blinkbox purchases the price stood at ￡9.49.

Of the 14 of the 49 best British films available to purchase on iTunes, the average price is ￡6.56, while for DVDs the average price is ￡6.63. DVD prices for the BAFTA winning films average at ￡5.84, whilst on iTunes the average price stands at ￡6.72. For the 7 of those films available on blinkbox, the average price is ￡5.70.

The quality of films available online also does not compare well with physical media. Standard definition tends to be just short of DVD quality across the content providers. HD film purchases and rental are available on iTunes only, with 45.5% of the best selling DVDs from August available to buy (at an average of ￡11.59) and 40.9% to rent (at an average of ￡4.49).

There are also problems with the flagship service Findanyfilm.com. In our searches we found discrepancies between the results shown in Findanyfilm.com and the results from searching content providers themselves. This is a potentially brilliant service and could be an essential tool for consumers. However it is currently let down by inconsistent and inaccurate results.

The is a picture of a patchy market place that serves fewer films at equal or higher prices to the DVD market. A lack of high quality streaming services are clearly partly determined by bandwidth issues. However, the findings point at problems with licensing, rights clearance and distribution arrangements alongside a reluctance from rights owners to sanction broad digital availability. The film market online is dominated by one service and overall offers a poorer selection, higher prices and lower quality than the physical media market. It is not a compelling consumer offer.

This shouldn't be read as a criticism of content providers, film makers or the film industry. It is instead intended to demonstrate that there are obvious problems with the licensing and availability of films online. If the goal for policy makers is cultural markets that thrive in the digital age, then a vital element of this must be ensuring that consumers' demand is satisfied online. Clearly this is not yet happening.

The implications

Consumers have moved online faster than the film industry whose films they want to watch. They are being confronted with the equivalent of empty shelves. It is unsurprising that many people have found ways of discovering and watching films online from unofficial channels. Blocking all the sites that offer non-licensed content in the world – presuming this could be done successfully in practice – would not improve a consumers chances of buying a film online that is not for sale.

Presuming a decline in physical media sales, shifts towards digital consumption and device 'convergence', the availability of a broad digital catalogue of works at least comparable to that available on physical media will be vital in sustaining a bouyant film industry.

In the US, DVD sales fell 20% in the first quarter of 2011. The European Retailers Association's 'Video Market' report for 2010 notes a '10% decline in DVD volumes, much of that decline concentrated in the area of older catalogue titles', and that 'overall (in 2010)...videos new growth formats (Blu-Ray and digital)...accounted for just over 13% of the market’s value, not quite enough to offset the declines in DVD, but a far healthier position than in 2009.'

In their proposals for a new website blocking scheme industry bodies argue their approach 'begins with a commitment to ensuring that there are legitimate offers in the marketplace, adapted to the changing opportunities provided by digital technology’ (A copy of the original proposals is available here on the Open Rights Group wiki).

However the proportionality and necessity of enforcement measures can only be considered in a situation in which there is a compelling offering of legal services and a healthy market environment. Before damaging new enforcement measures are on the table, policy makers need to ensure that consumers' demand is being satisfied online.

What are the drags on the market?

It is likely that new formats such as Ultraviolet, which is a format for films that allows consumers to view a film on a number of permitted devices through a cloud-stored copy, and the likely emergence of Netflix in the UK will help widen availability. Netflix became the highest user of bandwidth in the US, overtaking BitTorrent, in May this year.

Ultraviolet could be a popular and in some ways a consumer-friendly format. However, as with all Digital Rights Management formats, close attention should be paid to the effects on both consumer rights and innovation. For example, there will likely be follow-on impacts on device manufacturers and content providers, and consumers may experience compatibility issues with their devices. Recent research from Rice and Duke Universities in the US suggests there is some truth to what many have suspected for some time - Digital Rights Management does little to prevent copyright infringement and does a lot to punish legitimate consumers.

Despite these forthcoming changes, these results suggest deeper problems. They suggest that complex market relationships, comprised of myriad rights deals and varyingly compatible technical standards, can fragment and balkanise a marketplace.

They also suggest a reticence to engage with digital markets. runs contrary to the Government's aims as stated in their growth strategy ("The path to strong, sustainable and balanced growth", HM Treasury and BIS, November 2010, p. 9, available here), as they seek:

"...a dynamic business environment, driven by open and competitive markets. Incumbent firms need to be constantly challenged to improve and new ideas must be allowed to enter markets."

These are the issues that policy makers should be pressing the industry to overcome. There are signs that policy makers are beginning to pay more attention. The 'Hargreaves Review' of IP and Growth took a refreshing frame of innovation and economic growth, with ideas to promote better markets through, for example, a 'Digital Rights Exchange'. The Competition Commission's recently found that Sky's deals with major studios restricted competition for services offering new release films, and distorted the Pay TV market. DCMS have an ongoing film policy review. And the EU have an ongoing consultation on 'online distribution of audiovisual works in the European Union', suggesting a welcome focus on the digital single market, which takes on some of the themes from it's new IP Strategy.

In all of these, we hope that copyright infringement is trumped by a proper look at the health of online markets as the defining frame. Markets need to be fair and open, with a healthy wholesale market and non-discriminatory copyright licensing. This would be a more effective way of helping content industries adjust to, and capitalise on, the opportunities of the digital age than overly aggressive protection and enforcement.

Our search results should be taken as indicative – it is a limited sample of films and the catalogues of films available at each provider changes frequently. But whilst there are such obvious deficiencies in the market for cultural goods online there should be a moratorium on new enforcement measures. This should begin with the abandoning of discussions about new website blocking powers, which are currently being entertained by policy makers in DCMS. Furthermore, understanding the factors that influence the health of markets for films should be a key focus of the ongoing film policy review.

Notes on the results

The four film lists we used:

1. The top 50 films from Time Out London magazine’s 100 Best British Films
2. BAFTA Best Film award winners (1960-2011)
3. Amazon.co.uk’s 20 best-selling DVDs as of 1 July 2011
4. Amazon.co.uk's 40 best-selling DVDs for August 2011

For each film, we searched five content providers (iTunes, Lovefilm, blinkbox, Film4 OD, and Virgin Media) and one film listing service (Findanyfilm). Box-sets and TV shows were excluded from the comparison of the Amazon.co.uk lists. For the recent best sellers lists, we included HD results.

The results for any given search frequently change, with content providers' catalogues changing offers. Results here should therefore be taken as *indicative* of current availability. You can download the spreadsheets with more detailed comparisons in here (.xls)

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We have had a response to a Freedom of Information Act request that we made to the Department for Culture, Media and Sport. In the request we asked for evidence they hold on the scale and nature of infringement of copyright by websites and on the efficacy of different strategies for dealing with it. They told us in their reply that they don't hold any.

This is a little alarming. Professor Ian Hargreaves' recent review of IP and growth - the recommendations of which the Government says it accepts and will push to  put into law - made much of the need for better evidence to guide policy making, particularly in relation to copyright. The IPO's new IP Crime strategy also highlights a paucity of evidence and the need for more of it ahead of the development of further IP enforcement strategies.

The Government now has a chance to set out clear strategies for assessing the impact of infringement and the effectiveness of different enforcement strategies. Doing so is stage one in finding a way to bring the voices in this debate - be it rights holders, artists, or civil society - closer together to discuss practical, effective and proportionate policy.

One of the many criticisms of the Digital Economy Act is that it is not based on sound evidence. The Impact Assessments that support it is extremely weak, citing studies that are not publicly available and offering little in the way of analysis of the efficacy of different strategies of enforcement.

The Government still publicly backs the Digital Economy Act, and there are further DCMS-led discussions on more enforcement measures such as new website blocking schemes. Furthermore, DCMS are still citing studies from vested interests or that are not publicly available (for example in the introduction to their Digital Economy Act Next Steps publication). So it is a little odd that the DCMS claims to hold *no* evidence of the effects of infringement by websites, the scale of it, the nature of it, or the effectiveness of different means of tackling it.

It must be very hard indeed to make judgements about proportonality and necessity without evidence of the issue at hand. It leads to policy based on hearsay and assumption, which is someway short of the new standards for Intellectual Property that the Government recently set for itself.

Below is the full reply to our FoI, which contains the details of our request.

UPDATE - Monday, October 17th October.

We made the same request to the IPO. They sent us the following very helpful reply:

"Dear Mr Killock

Thank you for your e-mail of 15 September, in which you asked for the following information:

"Can you supply me with

(a) Any evidence presented to the IPO to establish

(i) the scale and effect of online copyright infringement by websites, the types of infringement and the types of content affected
(ii) the options and remedies available to government and rights holders to tackle online copyright infringement by websites
(iii) the consequences and efficacy of the options available to tackle online copyright infringement by websites

(b) Any evidence or impact assessments commissioned or generated by the IPO to establish

(i) the scale and effect of online copyright infringement by websites, the types of infringement and the types of content affected
(ii) the options and remedies available to government and rights holders to tackle online copyright infringement by websites
(iii) the consequences and efficacy of the options available to tackle online copyright infringement by websites".

I have dealt with your request under the Freedom of Information Act 2000. After a thorough check of the IPO's records, I can confirm that, apart from some published documents I shall detail below, we do not hold the information you are requesting.

As you may be aware, the IPO is the lead department for copyright policy and IP enforcement issues more generally. However,  the work on online infringement issues following the Digital Britain Report, leading to the copyright infringement provisions in the Digital Economy Act 2010, was led by policy officials in BIS who have since moved to DCMS following machinery of government changes. Any materials commissioned or generated as part of those provisions of the Digital Economy Act should therefore now rest with DCMS.

The original impact assessment for the Act can be found at: http://www.ialibrary.bis.gov.uk/uploaded/Digital-Economy-Act-IAs-final.pdf . Under Ofcom's obligations under the Act, it will prepare regular progress reports on the level of online copyright infringement, and an assessment of the impact of the initial obligations.

The Government commissioned Ofcom to report on the practical workability of sections 17 and 18 of the DEA, as a tool to tackle online copyright infringement. The Government published this document here: http://www.culture.gov.uk/publications/8365.aspx . The Government made clear that, on the basis of this analysis, it has no plans to bring these sections of the DEA into effect.

With regard to approaches to tackling online copyright infringement outside the DEA, much of the work being done in this area is being led by industry.  There are no current plans for regulation or other Government intervention; if there were such an intention then of course an impact assessment would need to be prepared. In the meantime, discussions continue between stakeholders and Government - at both Ministerial and official level - about the scale and nature of online copyright infringement, and the efficacy and potential consequences of a variety of approaches to tackle the problem.

Although it is not clear that they are in the scope of this request, other documents that could be of interest to you may be found in the research commissioned by the IPO. All such reports are searchable on the IPO website (here: http://www.ipo.gov.uk/pro-ipresearch.htm ) with a list of the studies that relate to copyright and enforcement, with PDFs here: http://www.ipo.gov.uk/pro-ipresearch/ipresearch-policy/ipresearch-policy-infringe.htm   You may also wish to look at the data presented in the IP Crime report which is also available here: http://www.ipo.gov.uk/ipcreport10.pdf .

If you require any further assistance please do not hesitate to contact me.


Yours sincerely,"

The DCMS reply:

"Dear Mr Killock,
 
Thank you for your e-mail of 15 September, in which you asked for the following information.
 
‘Can you supply me with
 
(a) Any evidence presented to DCMS, Jeremy Hunt or Ed Vaizey to establish
 
(i) the scale and effect of online copyright infringement by websites, the types of infringement and the types of content affected
(ii) the options and remedies available to government and rights holders to tackle online copyright infringement by websites
(iii) the consequences and efficacy of the options available to tackle online copyright infringement by websites
 
(b) Any evidence or impact assessments commissioned or generated by DCMS to establish
 
(i) the scale and effect of online copyright infringement by websites, the types of infringement and the types of content affected
(ii) the options and remedies available to government and rights holders to tackle online copyright infringement by websites
(iii) the consequences and efficacy of the options available to tackle online copyright infringement by websites.’
 
I have dealt with your request under the Freedom of Information Act 2000. After a thorough check of the Department’s records, I can confirm that we do not hold the information you are requesting.
 
The Department’s interest in working with both copyright owners and ISPs to examine options to address serious infringement of copyright is well known.  The creative industries are an important part of the UK’s economy, and they regularly report copyright infringement as a serious problem.  As you may know, part of the Government’s approach to tackling online copyright infringement is working to implement the initial obligations of the Digital Economy Act 2010 (DEA). The original impact assessment for the Act can be found at: http://www.ialibrary.bis.gov.uk/uploaded/Digital-Economy-Act-IAs-final.pdf. Under Ofcom’s obligations under the Act, it will prepare regular progress reports on the level of online copyright infringement, and an assessment of the impact of the initial obligations.
 
The Government commissioned Ofcom to report on the practical workability of sections 17 and 18 of the DEA, as a tool to tackle online copyright infringement. The Government published this document here:http://www.culture.gov.uk/publications/8365.aspx. The Government made clear that, on the basis of this analysis, it has no plans to bring these sections of the DEA into effect.
 
With regard to approaches to tackling online copyright infringement outside the DEA, much of the work being done in this area is being led by industry.  There are no current plans for regulation or other Government intervention; if there were such an intention then of course an impact assessment would need to be prepared. In the meantime, discussions continue between stakeholders and Government - at both Ministerial and official level – about the scale and nature of online copyright infringement, and the efficacy and potential consequences of a variety of approaches to tackle the problem.
 
If you require any further assistance please do not hesitate to contact me.
 
Yours sincerely,"

 

 

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(Thursday October 13th update: Julian Huppert MP has been in touch to thank supporters for their efforts and update us on the situation after he tabled his amendment. Here is what he says:

"Thank you to all those who encouraged their MPs to support my amendment to scrap parts of the Digital Economy Act. Although the time available for the debate meant that we couldn't debate my amendment, it was still valuable.

I was amazed at how many MPs came up to me to say that they had been contacted by constituents, wanting to know more about the issue and what was going to happen. Please keep track of their responses, so that we can hold them to it next time I have a chance to propose amendments. You may also want to meet your MP at some stage in a surgery, to explain to them the problems with the Digital Economy Act - most MPs don't understand it.

The government announced in response to me earlier in the debate that there would be a review of the communications sector and a new draft Bill in 2013 - I hope it will be better than the current law, and will keep working on this.")

-

On Tuesday Julian Huppert MP tabled an amendment to the Protection of Freedoms Bill. It was an attempt to use the Bill to repeal sections 17 and 18 of the Digital Economy Act - which set up a website blocking process for sites involved in copyright infringement - after Ofcom recently concluded the provisions were unworkable. Responding to this, the Government said they would ditch sections 17 and 18. Yet they remain part of the law. The amendment read:

"To move the following Clause:—

‘(1)    The Digital Economy Act 2010 is amended as follows—

(2)    Omit section 17 (Power to make provision about injunctions preventing access to locations on the internet) and section 18 (Consultation and Parliamentary scrutiny).’."

The amendment would ensure that the Government sticks to its announcement. It also echoes the sentiments expressed in the Early Day Motion number 1913, which set out concerns over the impact of website blocking on freedom of expression. 112 MPs signed up to that earlier in the year.

We asked to people to get in touch with their MPs yesterday morning to ask them to support Julian Huppert's efforts to get the amendment passed. We had a fantastic response, to which many MPs responded by offering their support. 

Ultimately the debate ran out of time on Wednesday, meaning there was no time to discuss or vote on the amendment. Here's what Julian had to say on Twitter afterwards:

"Thanks all who contacted their MP about my #deact amendment; lots of MPs talked to me about it. Sadly, we'll have no time to debate it."

This is disappointing of course. However, the good news is that the Government, in responding to Julian's suggestion, were forced to tell us their plans for dealing with blocking in the future. As ISP Review  reported, new measures on copyright infringement will be considered in the forthcoming Communications Bill Green Paper, due early next year. This will include a rethink of the website blocking provisions. Here's what the Minister James Brokenshire MP said when Julian Huppert raised the issue (down in column 87):

"The hon. Member for Cambridge (Dr Huppert) mentioned the Digital Economy Act 2010. He will be aware that the Government announced in August that they did not intend to commence sections 17 and 18 of the Act. There might not be time to debate his new clause, but we are now working on a wide-scale review of the communications sector with a view to publishing a Green Paper by the spring of next year, and a draft Bill by mid-2013. Policy on tackling online copyright infringement, including site-blocking, is being considered as part of that review and, given our intention to conduct that wide-ranging review, it would be premature to act now to repeal sections 17 and 18 of the Act in isolation from any other legislative changes that might be needed."

Congratulations to Julian Huppert for his continued excellent work, and to all of you who responded and called their MPs. We're keeping the heat turned up on this flawed Act.

Permission to appeal the Digital Economy Act Judicial Review

The proposed amendment comes a few days after the Court of Appeal ruled that BT and TalkTalk may appeal the original decision from the Digital Economy Act Judicial Review. This means further delays to the implementation of this badly compromised Act, with the appeal likely be in a couple of months.

It is unclear how exactly this will affect the timetable to which the Department for Culture, Media and Sport and Ofcom are working to for implementation of the Act - we are awaiting the revised, and overdue, Obligations Code in a timeframe that DCMS refer to only as 'shortly'. This Code (see the original consultation here) will bring with it details on liability for open public WiFi, internet connections in places such as cafes, and the standard of evidence required in the gathering of IP addresses as proof of infringement. It is likely to be controversial on all of these points.

Francis Davey has an overview of the grounds of this appeal over at his blog here. Well done to BT and TalkTalk for continuing their challenge. For background on the Judicial Review, you can read our earlier blogs about our involvement here and our submissions to the initial Review hearing here.

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