Digital Economy Act time. Remember that?! We spent yesterday morning at Ofcom, who kindly offered us and a couple of other organisations the chance to ask questions about their revised Initial Obligations Code. It was a useful exercise. It's clear that they have done plenty of work on the code since the previous draft in 2010. It seems to us like there's plenty still to look at - for example there's still plenty of uncertainty around the liabilities to be faced by WiFi providers, in our opinion. They're running a consultation which closes on 26th July. We'll write up and publish our response soon, and we will also be asking you to respond, especially if you are a wifi provider such as a cafe, hotel or library and are concerned about how the Code may affect you.
Shortly after yesterday's meeting, the Secondary Legislation Scrutiny Committee published its report on the Draft Online Infringement (Initial Obligations) (Sharing Of Costs) Order 2012. They conclude that "The House may wish to press the Minister in debate for greater reassurance about whether this scheme will function effectively; and we draw the Order to the attention of the House on the grounds that it may imperfectly achieve its policy objective."
They criticise the £20 appeals fee, the confusion around the position of wifi providers such as libraries, and the laying of the order whilst a consultation was ongoing. The Committee ends by questioning whether the objective of reducing copyright infringement by 75% is achievable.
(The Committee scrutinises secondary legislation and makes recommendations to the House on its findings. The Sharing of Costs Order 2012 requires 'Ofcom to set fees payable by Copyright Owners to ISPs and to Ofcom if they intend to take advantage of a notification scheme in relation to online infringements of their copyright.')
If you are following the Digital Economy Act, it really is worth reading the full report. Some of the more choice comments:
Now, this may all sound extremely niche and complicated. And it kind of is. But its also really important. The IOC and the Costs Order are supposed to clarify key substantive issues in the Digital Economy Act. It is telling that 2 years after it passed, some of these are still a cause for concern - including, as the Committee points out, why a £20 appeals fee was decided to be most effective and reasonable option. There are some lessons here - if you rush an Act, based on an inadequate analysis of objectives and how to achieve them, without sufficient scrutiny, then you'll probably have to spend quite a lot of time afterwards trying to clear up the mess.