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March 20, 2014 | Jim Killock

Will 'voluntary' copyright enforcement protect users' rights?

The Digital Economy Act is stalled. But ISPs and rightsholders are apparently closing in on a voluntary letter writing scheme to replace it.

It is approaching four years since the Digital Economy Act was passed, and still measures within it to deal with individuals alleged to have infringed copyright have not been implemented. It’s an Act that was so poorly conceived, planned and written that it has proven almost impossible to implement in practice. 

In response to these delays, copyright holder trade associations have been seeking a voluntary deal. That would mean ISPs and copyright holders working together to identify and write letters to alleged copyright infringers. The scheme would work like the Digital Economy Act was supposed to, just without being driven by the law.

Looking at what was said at a recent Westminster Hall debate (on 13th February), it looks like that voluntary deal is edging closer. It has an acronym and everything - ‘VCAP’ (the ‘voluntary copyright alert programme’. John Whittingdale MP asked about progress in a debate about the creative industries report written by the Culture, Media and Sport Committee (which he chairs.) He said:

“Despite the difficulties in enacting the DEA, the recent development of a voluntary agreement is in many ways preferable, if it can be made to work. In America, that is already working well. A voluntary copyright alert programme would involve an agreement between the rights owners and the ISPs that there would be a system through which letters were issued to those identified as illegally downloading. If that can be done voluntarily, that is preferable, and we should get on with that as quickly as possible. The Committee’s report is clear: we prefer a voluntary system, but if agreement cannot be reached, the Government need to stand by to bring into force the provisions of the Digital Economy Act 2010, and to use legislation.”

In response, the Minister Ed Vaizey said:

“Perhaps that is the appropriate moment for me to pick up the point that the Select Committee Chairman made about the VCAP proposals. It has been difficult to implement the details of the Digital Economy Act 2010. The Government have not resiled from it, but there are significant technical obstacles, including the fact that we were being sued by BT and TalkTalk for at least two years from the time when it was passed. Other technical obstacles have presented themselves, and we are actively seeking to overcome them, but nevertheless we welcome the industry initiative, not only because we hope it may be up and running before the end of the year, but because it requires a partnership between both sides of the debate, and because it brings important flexibility to make it possible to adapt. I suspect that it will be easier to adapt the system as technology changes.”

You can also watch the Minister’s response from about 2 hours into this video.

With discussions seemingly only between ISPs and rights holder trade associations, there is nobody representing the public interest or overseeing how the scheme will work to that end. The government are playing the now familiar role of watching as an ‘industry initiative’ develops - allowing them to look like they’re doing something whilst disowning themselves of any responsibility. The only online reference from DCMS I can find to the voluntary scheme is in last year's policy paper, in which they say "the Government continues to implement the Digital Economy Act 2010, whilst encouraging industry-led alternatives".

All the familiar issues with the Digital Economy Act apply to this new scheme. For instance, what personal information will be used, and who will have access to it? What standards of evidence will rights holders use, or will ISPs demand, when allegations of infringement are made? (Lots of work, particularly by Consumer Focus, went in to looking at this issue when the Digital Economy Act was being discussed.)

Will there be any sanctions against households whose accounts have been allegedly used for infringing? Will there be any appeals process for those who feel a mistake has been made? And will the scheme include public wifi? Who is addressing any of these questions?

We did mention problems like this in our oral and written evidence to the Committee. Given we appear prominently in paragraph four of their report, it’s clear they noticed us even if they singularly failed to listen to or understand anything we actually said.

You can read our comments on the CMS Committee in our previous post, in which we explain why the parts about copyright enforcement and reform are a pretty weak effort.

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