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Digital Economy Act UK


Talk given by Janice McFarlane at 'Working in a digital age- the 10th anniversary e-books conference' in Edinburgh in 2010. …

Talk given by Janice McFarlane at 'Working in a digital age- the 10th anniversary e-books conference' in Edinburgh in 2010.
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  • Good afternoon, and thanks for this opportunity to speak to you on this recent legislation which could have major implications for libraries and the services they provide. I say COULD HAVE because of the continuing uncertainty over some key issues, which I hope to highlight. I will also, VERY BRIEFLY mention a few lost opportunities as the bill progressed through parliament.
  • In the next 30 minutes I will very quickly outline the progress of the Bill, indicating relevant clauses which were lost or retained. I will then concentrate on the major issues of relevance to us all, the provisions for reducing online copyright infringement and the initial obligations code which will govern the operation of the act, and finish by indicating where we have reached in the implementation process.
  • BRING UP FULL PAGE FIRST First I’d like to draw attention to the speed of the parliamentary process in carrying forward this act, and the lack of opportunity for formal presentation of evidence by librarians and others. Although this did not prevent some concerted lobbying on various issues. This speed was due in large part, but not solely, to the parliamentary election in May Bill was introduced by Lord Mandelson in H of L on 19 Nov 2009. In the House of Lords: Decision to refer the Bill to a Committee of the Whole House meant no written evidence would be accepted until the Commons Committee Stage (after HC 2 nd reading) House of Commons: election called: The following update was received from the Scrutiny Unit on 26 Mar 2010: ‘ The Digital Economy Bill will receive its second reading in the House of Commons on 6th April 2010.  Unfortunately, due to the forthcoming election there is insufficient time for this Bill to go to a Public Bill committee, and so we will NOT be taking written evidence.’  Act was subsequently rushed through in the last ‘wash-up’ days of the government. New govt has indicated that it will not repeal the Act despite ongoing lobbying on the issue. Indeed an online poll, following the election saw the DEA coming top in a list of Acts which the public wanted repealed. Though this was probably due to ‘voting’ by those participating in P2P.
  • Lets start with a quick look at the original bill. The first HL Bill of the final parliamentary session before the election. Cl. 4-17 primarily designed to deal with infringement via P2P filesharing and in response particularly to the concerns of the music, film and games industries. More on this later, but cl.17 caused great concern as it would give the Sec of State authority to amend the CDPA without the normal degree of Parliamentary scrutiny. Libraries and library organisations were heavily involved in lobbying against cl 17 proposals. Cl.42 Orphan works (ie copyright works whose rights owner cannot be identified and/or traced)are a major hurdle for libraries planning mass digitisation projects. The result is that many libraries will simply exclude orphans from their projects. Cl.42 opened up the possibility of the Sec of State ‘authorising a licensing body or other person to do, or to grant licenses to do, acts in relation to an orphan work which would otherwise require the consent of the copyright owner.’ That ‘Other person’ might even include a library. But changes would be governed by regulations which were not outlined in the Bill, soit was clear how this would be developed. Under the proposed Extended licensing schemes: Sec of State could authorise a licensing body (eg CLA) to grant licenses in respect of works by owners not registered with that body, unless they opted out. Proposals would not cover unpublished works. Again these proposals were dependent on regulations which had not yet been drafted. Cl 43 extended criminal penalties to max £50K from £5K E&W; £10K Scotland Cl 44: PLR extended to cover audio and e-books.. Supported by pub lib sector. Other topics were of less direct relevance to libraries.
  • SO WHAT WAS LOST? The Govt argued for cl.17 on the basis of ‘future-proofing’ the legislation, arguing that it would allow them to make quick changes in legislation to reflect technological changes, but it met fierce opposition from parliamentarians and librarians concerned about the potential for major changes to CDPA with little scrutiny. This clause was eventually removed, but the new cl. allows Sec of State to introduce regulations which would allow rights holders to seek a court injunction that would require ISPs prevent access to specified online locations deemed to be substantially involved in providing access to infringing material. However the inclusion of cl.18 does provide for consultation and parliamentary scrutiny. Orphan work provisions were always a controversial issue with opposition being led by photographers who felt they were most likely to suffer from the changes. Lack of clarity concerning the regulations which would govern the licensing did not help with counter-lobbying activity. The government of the day indicated it would fall back on EU developments in this area. EU is currently planning an amendment to the European Copyright Directive on orphan works. However current plans are to limit any changes to literary works (including their illus), but excluding stand alone artistic works and other formats, and would retain the requirement for diligent searches, a major stumbling block for mass digitisation projects. NLS and others have written to the Pres of the European Commission and relevant commissioners asking them to reconsider these issues which do little to improve access to the millions of orphans held by libraries across Europe. The sections relating to Extended licensing schemes were lost as they were included in the more controversial orphan works clause. IPO was only allowed 1 clause in the Bill.
  • AND WHAT REMAINS? Increase in penalties: £50K for criminal infringement. However this is primarily aimed at large-scale criminal activity, such as the making and selling of pirate DVDs etc and should therefore have no direct impact on libraries and their customers who are most likely to be subject to civil actions against alleged copyright infringement. PLR extension to audio & e-books, requires secondary legislation to bring in to force. As yet no date has been set for this and authors are currently (September) mounting a campaign against concerns that existing PLR terms may be reduced, or even abandoned, as part of cuts in public expenditure. AND Online infringement: the area which is causing most concern and uncertainty for libraries and librarians and the area I will now concentrate on, while noting that the limited parliamentary debate did lead to some amendments and clarifications in the final Act. BUT It is important to note that the final details of the operation of the new legislation will depend on various codes which are still not available.
  • We will start by looking at what the govt aimed to achieve by means of the online infringement section of the Act. Click 1 Many will feel this is a laudable aim and reflects the concerns of the music, film and games industries who contribute substantially to the UK economy, as well as other individual rights owners, but I will not get in to the debate on the pros and cons of online copyright v open access in this presentation. The 70% target was mentioned by Lord Mandelson at a conference attended by representatives of Britain’s ‘creative industries’ in Oct 2009 (pre-bill). See Guardian 28 Oct, Times 29 Oct. (What is their base figure for this?) He also stated ‘…the days of consequence-free widespread online infringement are over.’ (Timesonline.) The Act outlines a 2-stage approach. Stage 1 will establish a process for responding to infringing activity while encouraging rights owners and others to improve copyright education and develop new business models allowing legitimate access to online copyright material. If the 70% target is not met within the time scale stage 2 will allow the introduction of Technical measures (Act cl.9 sec 3): A: limits the speed or other capacity of the service provided to a subscriber; B: prevents a subscriber from using the service to gain access to particular material, or limits such use; C: suspends the service provided to a subscriber; or D: limits the service provided to a subscriber in another way.
  • Let’s look at stage 1 in a bit more detail. The process relies on the use of Copyright Infringement Reports sent to ISPs by rights owners outlining alleged infringing activity by a subscriber to their service. CLICK1. An ISP must then notify the alleged infringer providing details of the allegation as well as information on copyright legislation, legitimate means of obtaining copyright material, as well as details of the appeals process if they wish to refute the allegation.CLICK2. An initial obligations code will set a limit on the number of notifications a subscriber may receive before they can be included in a Copyright Infringement List which must be provided to a rights owner who applies for one. CLICK3 The CIL will be anonymised so will not contain the personal details of the subscriber but CLICK4 a rights owner may apply for a court order to obtain that personal data, which would then allow them, as now, to take legal action against the subscriber. CLICK5 ISPs who fail to follow the procedures set out in the Initial Code will face a fine of up to £250K.
  • CLICK1: The Act suggested that the costs of the new procedures should be shared between rights owners and ISPs, with the possibility of subscribers sharing some of costs of appeals. However the division and setting of costs would be set out in a statutory order and in the Initial Obligations Code. CLICK2 Again it is worth noting that the operation of the code does not prevent legal action against individual subscribers. CLICK3 Central to the new procedures is the initial obligations code, which I will say a bit more about shortly. CLICK4 CLICK5 CLICK6
  • SO LET’S LOOK AT THE , STILL DRAFT , INITIAL OBLIGATIONS CODE which will establish the framework for the operation of the new procedures. CLICK1: The draft was released for consultation on 28 May, but only for 2 months rather than the usual 3. NLS joined many others in responding to this consultation exercise. CLICK2: In the introduction the draft states that the code covers …(see screen) CLICK3: The draft identifies the need to ensure that evidence gathering by rights owners meets agreed levels and outlines what information is required (including the filename of the infringed material, the IP address, port number and website used, and the date and time at which the evidence was collected). It also outlines the QA report required by ISPs to ensure the correct identification of subscribers. CLICK4: Ofcom will beresponsible for appointing an independent appeals body which will determine the precise appeals process. However the draft code does outlines the possible grounds for an appeal. These include a denial that the act was an infringement; that the IP address does not relate to that subscriber; that the infringement had not been carried out by the subscriber, who had taken reasonable measures to prevent infringing by other persons using their service, or that the code had not been followed properly. Etc/ CLICK5: The draft also contains templates for the different notification letters required to be sent by ISPs to subscribers.
  • THE DRAFT PROVIDES THE DETAILS ON PROCEDURES, THRESHOLDS ETC. CLICK1: I’m not entirely sure how rights owners will know how many CIRs they are likely to raise with a specific ISP over a 12 month notification period. Supposedly based on past experience? However rights owners who don’t provide estimates & payments will not qualify for use of code’s provisions. Cost sharing is required to cover Ofcom & ISPcosts (notification etc) + appeals costs:The old BIS (Business, Innovation & Skills Dept) consultated on how costs should be shared between 30 Mar-25 May(2mnths). Govt responded slightly late on 14 Sept (due end Aug). Split 75%(rights owners)/25%(ISPs). Costs based on ‘efficient operator’ costs, verified by Ofcom Initially NO FEE for subscribers re appeals but govt retains power to introduce subscriber fees if there is alarge number of vexatious appeals. A statutory order will implement this 75/25 split. CLICK2 Qualifying ISPs (fixed not mobile providers). 7 identified(BT; Virgin, Sky, Orange, O2, Post Office, Talk Talk)=96.5% of market. BUT Coverage may expand to cover smaller providers if infringers move to them. CLICK3: Shortened timeframes, particularly for ISPs have caused some concern. CLICK4 & 5 Subscribers- possibly on CILs within 4 months.
  • SO WHY ARE LIBRARIES CONCERNED? WE DON’T KNOW HOW WE ARE DEFINED UNDER THE ACT OR UNDER THE INITIAL OBLIGATIONS CODE BRING UP FULL SCREEN SOME ARGUE THAT WE COULD FIT IN TO EITHER OR BOTH CATEGORIES Despite intensive lobbying by libraries and other public bodies we have failed to obtain a clear inclusion of a statement which exempts libraries from either of these categories. As a result we could be subjected to CIRs and even technical measures because of the actions of a few different infringing customers of our wifi and internet services. The closest we have come to an acceptance of this issue is in a statement by Stephen Timms (HL Hansard 6 April p.922)-previous govt ‘ I understand the concern …about the danger of technical measures being taken against broadband in public libaries or universities, or against public wi-fi services. I do not think it would be right to provide a blanket exception for those services. However, the Bill requires Ofcom to draw up a code to govern how tech measures would be applied. … we would not regard any assessment by Ofcom … as satisfactory unless it took account of the impact on public libraries, universities and public wi-fi services. HOWEVER; in consultation on Draft Code: ‘ We consider that a person or an undertaking receiving an internet access service for its own purposes is a subscriber, even if they also make access available to 3 rd parties. Those who wish to continue to enable others to access their service ..[consider taking steps to protect against infringement-advice should be provided by ISPs in notification letters. THIS ISSUE NEEDS TO BE CLARIFIED BEFORE WE CAN PROPERLY ASSESS THE IMPACT ON OUR SERVICE PROVISION.
  • SO WHERE ARE WE NOW? CLICK1:Initial timetable, (set by DEA @ 8months after Act passed )took in to account minimum of 3 months to obtain approval from EU (Standards & Tech Regs Committee), followed by final approval from UK Parliament. However progress also depended on the completion of several consultations CLICK 2: BIS consultation response issued mid-September. Decision will be notified to European Commission before being introduced in Parliament as a Statutory Order CLICK3: Initial Code will still need EU approval before obtaining Parliamentary approval. BIS has already confirmed a 3 month delay as part of its response to cost-sharing consultation, which would make it Mar 2011 at earliest. CLICK4: As a result movement on implementing a possible technical measures code should not begin until about April 2012, but during that year we may be on the receiving end of CIRs and/or notification letters if we use one of the Qualifying ISPs. So where are we? Disappointed at loss of orphan works & extended licensing clause Uncertain about any timescale for the extension of PLR Uncertain about how or if we will be impacted by the Act and the Initial and later Codes. We need to continue to monitor developments and work to ensure a satisfactory outcome which will allow us to play our part in creating the Digital Britain the previous government was so eager to develop.


  • 1. The Digital Economy Act: Uncertainty & Disappointment Janice McFarlane Head of Partnerships & Professional AdvisorNational Library of Scotland E-Books Conference 21 October 2010.
  • 2. Outline• From Bill to Act• What was lost?• What remains?• Online infringement provisions• The initial obligations code• Where are we now?
  • 3. The Bill’s (RAPID) Progress throughParliament House of Lords House of Commons • 1st reading 19 Nov 2009-no • 1st reading 16 Mar-no debate debate (HL Bill 1) (Bill 89) • 2nd reading 2 Dec 2009 • 2nd reading 6 Apr • Committee stage: Whole • Committee stage: only one House-no written evidence sitting: no written evidence allowed: 7 sittings: 6 Jan-8 allowed.: 7 Apr. Feb 2010 • 3rd reading: 7 Apr • HL Bill 32: 9 Feb 2010 • Returned to Lords for • Report stage: 3 sittings: 1-8 consideration of Mar 2010. HL Bill 44 amendments: 8 Apr • 3rd reading: 15 Mar • Royal Assent (2010 c.24) 8 April 2010.
  • 4. HL BILL 1: 2009/10• 44 clauses covering 11 topics• Cl. 4-17: Online infringement of copyright – Cl.17: Power to amend copyright provisions• Cl. 42-3: Licensing of copyright and performers’ rights – Orphan Works – Extended licensing schemes – Increased penalties for criminal infringement of copyright• Cl. 44: Public lending right• Other topics related to OFCOM, broadcasting, digital radio, internet domain registries, etc etc.
  • 5. What was lost?• Cl.17: Future changes to CDPA – replaced by provision for ‘injunctions preventing access to locations on the internet (Act cl.17) and – new cl.18 on consultation and parliamentary scrutiny.• Cl.42: Orphan works & extended licensing – Thrown out in the ‘wash-up’ – Too controversial – Extensive lobbying by photographers and others – Falling back on EU developments
  • 6. What remains?• Increase in penalties for criminal liability (Act s.42) – But most individual cases are dealt with under civil law – Designed to catch ‘professional’ producers of pirate copies• Extension of PLR (Act s.43) – Requires Statutory Instrument to bring in to force• Online infringement of copyright (Act s.3-18) – With some amendments and clarifications
  • 7. Online infringement-Aims of theAct • To reduce online copyright infringement, particularly by P2P file sharing, by minimum of 70%. • 2-stage approach: • Stage 1: implementation of Copyright Infringement Reports (CIRs) process + education and development of new legal routes to online material. • Stage 2 (if target not met within 12 months): introduction of ‘technical measures’ by ISPs against persistent offenders.
  • 8. The Act-in more detail: 1• Copyright owner may make a CIR to ISP with details and evidence of an apparent infringement, within 1 month of gathering evidence.• ISP must notify subscriber within 1 month of receipt of CIR with details of alleged infringement, plus information on copyright legislation and lawful access, and the appeals process.• ISPs must provide rights owners, on application, with anonymous list of ‘relevant’ subscribers who have reached threshold number of notifications.• Court order required to obtain identity of subscriber.• ISPs face fine of up to £250K for contravention.
  • 9. The Act-in more detail: 2• Costs of new procedures to be shared between rights owners and ISPs (and subscriber re appeals costs)• New arrangements do not prevent rights owners taking legal action against infringing subscribers.• Thresholds and other limits will be defined in an ‘Initial obligations code’ to be produced by Ofcom or the industry (with Ofcom approval).• Code will require parliamentary and EU approval before implementation.• Ofcom to report to Sec of State on impact of new procedures before any move towards introduction of technical measures (quarterly & annual reports).• A separate code, approved by Parliament, will be required before technical measures can be implemented.
  • 10. Ofcom Initial Obligations Code-1• Consultation on draft code:28 May-30 July 2010• ‘…covers … the provisioning and handling of … [CIRs]. … propose which ISPs should initially participate in the code, the process they should use to notify subscribers alleged to have infringed copyright and the threshold for including subscribers on a …[CIL].’• Quality assurance report re evidence gathering process• Basic information re subscriber appeals process• Templates for notification letters.
  • 11. Ofcom Initial Obligations Code-2• Qualifying Copyright Owner must provide estimate of number of CIRs it intends to make to a Qualifying ISP in notification period + meet obligations re sharing of costs.• Qualifying ISPs-initially limited to ‘fixed’ access services with more than 400K subscribers.• Timeframes shortened for sending CIRs to ISPs and notifications to subscribers (10 working days instead of 1 mnth)• Threshold of 3 notifications within 12 months to subscriber before they can be placed on CIL (a ‘relevant subscriber’).• Minimum of 1 month between each notification.
  • 12. Why are libraries concerned?• Are we ISPs? (‘a person who provides an internet access service’) – If ‘yes’: cost implications of setting up systems to cope with CIRs, CILs etc• Are we subscribers? (a person ‘ who receives the service under an agreement between the person and ..[an ISP]; and does not receive it as a communications provider’) – If ‘yes’: potential impact of technical measures on internet and wifi provision; potential costs of appeals.
  • 13. Where are we now?• Initial timetable saw Code in place by December 2010 – But• Delays in consultation process – BIS on cost-sharing. Late response. – Ofcom Initial Obligations Code-still waiting for government response – Ofcom: Enforcement of the Code and handling of industry disputes. Should have been published July. – Ofcom: Tariff setting. Due September, dependent on BIS progress.• Deadline for Initial Code delayed by 3 months• Earliest ‘technical measures’ code: mid-late 2012.• Still no clarity re status of libraries under the Initial Code.• Further clarity unlikely until technical measures code drafted.