Ofcom has today published two key documents, the proposed Initial Obligations Code and the Sharing of Costs Order, which together – if approved – will give life to the DEA. To be fair to Ministers and Ofcom, the gumming of the works was not their doing, but the result of judicial review action brought by two of the affected ISPs, BT and Talk Talk.
Although a frustrating and ultimately futile effort at obstruction, the benefit of this action is that it has given copper-bottomed underpinning to the proportionality and effectiveness of the proposed measures. Although some on the copyright-erosion fringe still seek to question the views of the High Court, mainstream opinion on either side of the DEA debate is cracking on with implementation.
Putting the detail of the DEA process to one side, today’s announcement is significant for a number of reasons.
First, because it demonstrates to those of us who were beginning to suspect a degree of faint-heartedness about these things, that Ministers are genuinely committed to seeing the DEA in operation. As we have seen with the non-appearance of the Communications Green Paper, Whitehall is replete with areas of long grass into which unpopular policies and ideas can be surreptitiously lobbed. That the DEA has remained on the fairway – indeed, headed for the green – is testament to Government zeal. Not only does the Queen “wish it”, but Ministers too.Secondly, the DEA is going to provide a shining example of what happens when internet intermediaries step up to the plate and take responsibility for online copyright infringement. Some ISPs privately muse that it is a pity they had to be led to this activity by statute – they would have preferred to pursue the voluntary agreements which rightsholders were always exploring. Whilst the statutory underpinning of the ISP obligations is to be welcomed, it remains the case that voluntary co-operation would have been quicker, possibly cheaper and just as effective. The read-across to other areas of the digital economy is clear. If we are ever to see more responsible practices by search engines, so that infringing sites do not feature prominently in natural search, it would surely be better to do so through co-operation than the long and winding path of legislation we have seen with the DEA.
Finally, there is the link to the current copyright consultation from the IPO. The Hargreaves Review is much maligned for failing to provide evidence to back up the claims that the UK economy would grow more if the intellectual property framework was weakened from a rightsholder perspective. It also failed to take account of the developing market-led solutions to perceived problems, such as content mining, format shifting and licensing. The DEA, on the other hand, is the result of all of such analysis. The measures were some five years in genesis from the Gowers Review onwards and subject to detailed conversation between government and affected parties; the need for action was underpinned by evidence demonstrating the harm of infringement to rightsholders; and the market-led approach was at least tried if ultimately found unattainable. Furthermore, a point which is always missed by DEA critics, is that the DEA was subject to more days in Committee Stage in either House than any other piece of legislation in the last Parliament.
Even though today’s documents make clear that notifications will not be landing on infringers’ doormats until spring 2014, there is at least now the clear sign that detailed preparations by rightsholders and ISPs can get underway.