In a widely anticipated action plan entitled Creative Britain: New Talents for a New Economy published today, the government said that it would consult on legislation with a view to implementing new laws by April 2009.
“Finding voluntary, preferably commercial solutions, remains the ideal, but the Government will equip itself to introduce legislation swiftly if suitable arrangements between ISPs and relevant sectors are not forthcoming or prove insufficient,” said a statement from the Department for Culture, Media and Sport, which published the action plan.
It went on to say that officials would explore tougher penalties for copyright infringement. “These actions signal the Government’s strong support for the creative industries as we move towards a fully digital world.”
In December 2006, the UK government-commissioned Gowers Review of Intellectual Property recommended that ISPs and rights holders reach agreement on ways to share information about people who infringe copyright on the internet. If they cannot, said the Review, the government should intervene and set its own rules.
The plan to force ISPs to do more to tackle illegal downloading of copyright material has been welcomed by many IP owners.
John Lovelock, chief executive of the Federation Against Software Theft, described the plans as a “major step forward” in the fight against software theft.
“The legislation will take away the last hiding place for those breaking copyright law as they can no longer hide behind the anonymity of the internet. At the same time ISPs will have a duty to cooperate when evidence is presented that illegal activity is taking place on their network,” he added.
But the industry association that represents ISP companies in the UK said that its members face limits when it comes to taking action against illegal downloaders.
“It is ISPA’s preference to agree a non-legislative solution which carefully considers the complex legal framework – as recognised by the Culture Secretary – in which ISPs operate,” said the Internet Services Providers’ Association in a statement.
“This includes the Electronic Commerce (EC Directive) Regulations 2002 and the Data Protection Act 1998 which can limit what action ISPs can lawfully take against users’ private communications. These limitations are balanced against past experience of legislation in this area which can result in cumbersome regulation and may not offer an optimal solution.”
The ISPA added that any attempt for ISPs to be involved with combating illegal sharing of copyright materials – whether legislative of self-regulatory – must be “legal, workable and economically sustainable” as well as allowing ISPs to recover any costs that they incur.
Lawyers have also questioned how the government’s plans will work in practice.
Nick McDonald, an IP lawyer at Browne Jacobson, said that the sheer volume of illegal downloading could mean that ISPs are forced to suspend or terminate the accounts of millions of people.
"ISPs would have to implement some fairly robust and complex structures of administration to effectively track so many illegal downloaders of music. The exercise would neither be cheap nor simple. Even once tracked, it is not always certain that the identified party is to blame, as it is possible to piggyback on others' wireless networks.”
He added: "Another challenge for the authorities is how infringers can be prevented from simply registering with a new ISP. A system of data exchange would need to be implemented and this would require unparalleled cooperation between competitors.”
