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Digital Britain - coming ready or not
8 July 2009
The Digital Britain final report was published on 16 June 2009.
In order to keep pace and prepare for future technological
developments, the government has established a set of key
objectives to make Britain a global centre for the creative
industries.
These aims include the upgrade and modernisation of our digital
networks, the creation of a dynamic investment climate for UK
digital content, universal and impartial access to broadband,
education programmes to equip a highly skilled creative workforce
and the renovation of digital content-rights. Sarah Fellows takes a
closer look at the challenges surrounding digital content and what
this means for intellectual property practitioners and
rights-holders.
Digital content challenges
The models of distribution, monetisation and participation in
the creative sector have rapidly and vastly changed over the last
ten years and are set to continue to do so.
New challenges, such as the production of limitless perfect
digital copies and intense new competition for advertising, mean a
new framework needs to be established to encourage investment in
the creative industries and provide just rewards for
content-creators. However, this needs to be balanced with
consumers’ demand for highly affordable and easily accessible
content.
Currently, a significant proportion of consumers choose to
access digital content unlawfully, principally through peer-to-peer
(P2P) file-sharing. It is estimated that this causes losses of
around £180m pa[1] in the music industry and £152m pa[2] across the
TV and film industry. Clearly the current scale of unlawful
activity hinders investment in innovative content models that rely
on any form of payment.
Proposed solutions
Consumers need educating as to the copyright dos and don’ts and
those that persist in unlawful activity should be appropriately
sanctioned.
To reduce this ‘civil form of theft’, the government proposes to
legislate to give Ofcom a duty to take steps aimed at reducing
copyright infringement. More specifically, Ofcom will oblige
Internet Service Providers (ISPs) to:
- notify alleged infringers that their conduct is unlawful
- collect anonymised data on serious repeat infringers, to be
made available to rights-holders, together with personal details on
receipt of a court order
If, after 12 months, these measures do not reduce unlawful
file-sharing by an ambitious 70%, Ofcom may invoke its backstop
powers (through an Order in Parliament) to use technical measures,
such as blocking (Site, IP, URL), protocol blocking, port blocking,
bandwidth capping/shaping and content identification and
filtering.
The government recommends that an independent body (the Rights
Agency) should be created in the UK to collaborate with
rights-holders and ISPs to create a code of practice to underpin
these obligations and to be responsible for copyright education and
enforcement online.
Penalties
The government supports recommendation 36 of the Gowers Review
to match penalties for online and physical copyright infringement
and intends to introduce an exceptional statutory maximum penalty
of £50,000 for all intellectual property offences.
Other rights issues
Fair use
The ‘fair use’ doctrine allows limited use of copyrighted
material without requiring permission from the rights-holders. The
scope for modernisation of the ‘fair use’ exception is heavily
constrained within the EU copyright framework. However, the
government is considering extending the exemption in areas such as
distance learning and the preservation of archive material.
Copyright Strategy
The government reiterated its intention to implement the Gowers
recommendations to enable the UK’s copyright system for the digital
age and, with the assistance of the IPO, to develop the Copyright
Strategy to guide the long-term and global development of
copyright.
Orphan works
Orphan works are works that remain in copyright where, even
after a diligent search, the owner cannot be identified or found.
Both the BBC and British Library have commented on the problem of
orphan works preventing public access to such materials and
thwarting mass digitisation projects. Therefore, the government
proposes to introduce legislation to enable commercial schemes for
dealing with orphan works (without the consent of the
rights-holder), perhaps through collecting societies, on a
regulated and appropriately safeguarded basis.
Funding mechanisms
Content providers are experimenting with a wide range of
business models, from embedded and behavioural/targeted
advertising, pay-per-use and ‘freemium’ models (initial supply for
free with tiered pricing structure for premium use).
The proposals regarding charging consumers to record/reuse
content and charging cable broadcasters to retransmit have been
shelved for the moment, owing to an acknowledgement by the
government of the difficulties already facing consumers in the
current economic climate and scepticism over whether charging for
retransmission would create a significant revenue.
A budget of £10m has been allocated to research and trial new
business models through Digital Test Beds throughout the UK in
order to find the most appropriate and profitable business
structures for exploitation of IP rights in the digital age.
Conclusion
Although rights-holders have welcomed the government’s clear
intention to reduce copyright infringement, much of the detail is
yet to be finalised and some are sceptical as to whether the
proposed measures go far enough. Moreover, by prescribing specific
technical approaches to tackling piracy, the authorities risk being
outpaced by technology once again.
However, the government’s timid approach should perhaps be seen
in the context of the recent decision of the French Constitutional
Council to strike down the law, enabling the French government to
deny access to anyone downloading copyright material more than
three times, describing “free access to public communications
services online” as a human right.
Gordon Brown seems to certainly share this view, describing a
fast internet connection as “an essential service, as indispensable
as electricity, gas and water”[3].
[1] BPI figures in 2008
[2] IPSOS figures for 2007
[3] The Times, 16 June 2009
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