Even more delays to the Digital Economy Act

Maybe it is cursed. Maybe it is simply the subject of an incredible series of unfortunate events. Or, maybe the Digital Economy Act is burdened with the legacy of a botched Parliamentary process that has resulted in its implementation being a long, drawn out and complex mess.

We have been informed that the Sharing of Costs Order – a Statutory Instrument made to fill in the detail of powers created by the Digital Economy Act – has been withdrawn. The result is another delay to implementation of the Act. How much of a delay is not clear.

The Cost Order was laid before Parliament towards the end of last year. It has been withdrawn because of concerns from the Treasury about whether the Costs Order complies with their Managing Public Money guidelines (which you can download and read for your self, if you really want to).

Ofcom are spending hefty amounts of public money, which ultimately would be paid back by copyright owners participating in the scheme. The Government maintains the issue now is technical compliance with the guidelines. The exact reasons are not clear. But the fact that Ofcom are stumping up many millions of pounds with apparently no clear commitment from copyright owners about who will pay it back and when could be part of the problem.

The Government had hoped to see letters being sent out by mid 2014. With work still to be done on setting up the appeals body, in addition to clearing the Costs Order and Initial Obligations Code with the EU, it seems very unlikely they will hit that target. We are approaching the third anniversary of the Act’s royal assent and its almost certain that the 2014 deadline for implementation won’t be met.

As we suggested the Culture, Media and Sport Committee on January 22nd, the ongoing mess is in large part down to a botched Parliamentary debate. The previous Government’s failure to take enough time to consider the details of the Bill, and its implementation through statutory instrument, or to consider the technical and legal issues – from sharing of costs to the threat to publicly available wifi – in sufficient detail has unsurprisingly led to the mess being cleared up after the passing of the Act through the drafting of the Initial Obligations Code and Sharing of Costs Order. (See our written submission to the CMS Committee here).

Together with other organisations we wrote to the deputy Prime Minister to ask for the impact assessment of the Digital Economy Act 2010 to be re-done in light of recent Ofcom research into online copyright infringement.

Before DCMS and Ofcom and the Treasury spend even more money on implementing this ill thought through law, the Government should take a step back and consider whether the Act is workable and effective. The fact that some of the copyright owners seem to baulk at paying for the Act, would indicate that even they don’t believe the three strikes system will result in a 70 percent reduction in online copyright infringement, as projected by the impact assessment.