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ShareDEA passes buck to ISPs

Back in September 2010, the UK Government Department for Culture, Olympics, Media and Sports (DCMS) announced its plans to force ISPs and right holders to share the costs associated with the Digital Economy Act (DEA), which was unsurprisingly met with much hostility from ISPs.  It would now appear the Government has laid out its secondary legislation in parliament, in its continuing bid to tackle online copyright infringement.

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

The Digital Economy Act which, let’s remember, was hastily passed back in April 2010 in the pre-election wash-up, poses to tackle unlawful file sharing with a three strikes rule by sending out warning letters and possible suspension from the Internet.  The proposed law will shoulder ISPs with 25% of all costs, from Ofcom’s costs, issuing notification costs, qualifying and initial costs and case fees for the appeals body. Rights holders will take on the remaining 75%.

According to Communication Minister Ed Vaizey, the Digital Economy Act sets out to “protect the creative economy from online copyright infringement, which the industry estimates costs £400m a year”. However, our frustration comes with Vaizey’s further comments where he says these measures are expected to “benefit industry by around £200million a year and as rights holders will be the main beneficiaries, we believe our decision on costs is fair to everyone”. What? Everyone? Unless I’ve misunderstood his statement, there are two parties footing the bill here – the right holders and the ISPs. Yet it’s only the rights holders that benefit, to the tune of an estimated £200million a year. I am so keen to understand what benefits the ISPs are getting in return for shelling out for 25% of the costs. Perhaps Vaizey thinks it’s the satisfaction of knowing we’ve helped make the world a better place. Wake up, it’s getting tougher to succeed in our economy as it is! The last thing ISPs need is to be told is they now have to be penalised for providing access to the Internet, especially at a time when the Government wants ‘the market’ to bring faster access to everyone in the next few years!

ISPA appears to agree with us. Nicholas Lansman, ISPA’s Secretary General, stated “ISPA has consistently argued for the beneficiary pays principle and is disappointed with the government’s decision. Full cost recovery for serious law enforcement cases is an established rule and ISPA sees no reason why it should not be the case here.”

ISPA are not alone.  In a recent article in ISP Review, it was reported an independent barrister, Francis Davey, has analysed the secondary legislation and declared that it has been “mis-drafted” and “may also be unlawful”. In addition to this, he believes it could potentially go against Europe’s Authorisation Directive (2002/20/EC), which states that the Government is only able to impose conditions on public communication network operators under certain situations. So, yet again it would appear they have rushed this legislation through to try to get what they want. Let’s just hope that these issues are addressed properly when discussed in both houses.

In a recent scientific study carried out by Spain’s Carlos III University of Madrid (UC3M), it has been estimated that just 100 Internet users are mostly responsible for uploading unlawful copyright content to public P2P file sharing networks.

If this study is indeed accurate, the scale of the problem (and the costs of unlawful file sharing to industry) could be more proactively reduced. Whilst as a responsible communications provider Entanet is prepared to inform unlawful file sharers of their alleged wrong doing and take action if they persist, we don’t agree that we should be held accountable for their actions by having to cover 25% of the costs. If right holders are the main beneficiaries, we should in fact be charging them not contributing to the cost.

The Government’s requirements penalise us for simply providing a service.  As we have said many times before, ISPs are conduits of information, not the owners and certainly not the Internet police.  In our opinion, rights holders should concentrate on how they need to adjust their business models to more effectively use the Internet for commercial gain, at the same time considering the steps they need to take to protect their assets. This should include actively pursuing (at their own cost) the 100 or so identified organisations causing them distress. Government meanwhile should recognise true ‘fairness’ and not simply pass the buck onto ISPs as an easy target.

The Government’s decision is madness. In the honour of its view of fairness, it should therefore be instructing postal and courier service providers to pay 25% of the costs attributed to combating the delivery of counterfeit goods to customers in and outside of the UK.

Have your say!

Do you believe it is fair for the Government to force ISPs to pay 25% of all costs associated with the Digital Economy Act? Or do you think costs should be laid at the door of right holders? Let us know your thought by leaving us a comment below.

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