A UK report on digital Britain, which will reveal the UK government verdict on file-sharing and 3-strikes policy, has been delayed, apparently due to a “ministerial quagmire”, according to a report in the Times Newspaper this week.

It is not clear exactly what the “quagmire” consists of, but if various leaked comments to different media are anything to go by, it would seem there is disagreement at the highest level on how to deal with the issue. According to The Times article, the Digital Britain report was to have been released on on Monday, and  it is now expected to  come out tomorrow.

The report has been preceded by the publication of contributions to the BERR consultation on peer-to-peer file sharing earlier this month. BERR has 

published all of the submissions on its website, with a covering text. It says that the final outcome will be in the Digital Britain report. The BERR consultation asked for views from industry and citizens on the issue of peer-to-peer filesharing, and how to deal with it. Questions covered issues such as filtering and 3-strikes. In publishing the responses, BERR’s covering text says that the submissions represented a highly polarised set of views, and that there was no consensus which could be reached on a solution. The only aspect where there was any agreement, it seems, was on the basic principle that any solution must incorporate commercial  offers of  downloadable content which is “legal”. 

BERR specifically highlights the conflicting views on filtering technology and whether or not it can be effective in dealing with file-sharing. And it highlights the view expressed by ISPs and consumers that the problem of file-sharing is due to a market failure.

Rights-holders have asked BERR for direct access to personal data from data from ISPs – which BERR notes was viewed “with concern” by the Information Commissioner, who is responsible for data protection in the UK. Interestingly, some rights-holders have also asked for a two-tier system, where small ISPs could ‘be relieved of the need to adhere to the code of Practice”. I am not sure how that would work and whether the result would be in breach of the single market rules.

BERR also says that some respondents have commented on the lack of transparency within the MoU process – this is the Memorandum of Understanding signed between 6 large ISPs and two rights holder groups (the BPI, which is the UK IFPI member, and the Motion Picture Association).

Given that these negotiations were conducted in secret, it  is hardly a surprise that those who weren’t involved would make this type of comment. I am personally  not at all surprised at  BERR's conclusions.   Having read a substantial number of the submissions to both rounds of  the European Consultation for Content Online, they have a similar polarisation of views (this is my analysis, although I note that this is not how they were presented by the Commission in the Communication of January last year.).  

But going back to that “ministerial quagmire” – well, it is probably not a surprise either, because just as we find a divergence of views within the interest groups, I suspect we also have  a similar divergence among the politicians who are dealing with them.  BERR does not have full responsibility over the process or the decision-making. The Digital Britain report is a shared responsibility between BERR (Business and Enterprise)  and the DCMS (Culture, Media and Sport). Digital Britain  is overseen by Lord Carter, who is Minister for Communications, Technology and Broadcasting, who operates across both ministries.  Lord (Peter) Mandelson is Secretary of State in chargeof BERR. The Secretary of State at the DCMS is Andy Burhnam.  And then  there is a separate portfolio for Intellectual Property. This  portfolio is overseen by David Lammy, who is Minister for Higher Education and Intellectual Property in the Department for Innovation, Universities and Skills.

I note that Lammy's comments  - according to The Times, he has ruled out legislating to disconnect file-sharers – are at odds with the leaked comments from Lord Carter, who is proposing a new “rights agency”  whose role is unclear. The Times report also suggests there were some last minute changes to the Digital Britain report.

To understand the “quagmire” better, I checked up on both Lammy and Carter. Lammy is an elected Member of Parliament. His consitutency is Tottenham in north London, which I know a little bit about as I used to live in a neighbouring area. It is a multi-ethnic community, with a lot of social housing and a large creative and professional, family-based middle class. It has big issues with youth culture. Lammy could well find that he is answerable to his constituency on the file-sharing issue.

Carter is an unelected minister, and former head of a public relations consultancy, before he was head of Ofcom. He has no constituents to answer to.

We wait with interest to see how the ministers struggle out of the quagmire and how much of the mud sticks.

 *A quagmire is a bog or marsh which sinks beneath your feet when you walk over it. 

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