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UK record companies have asked the government to amend copyright law, imposing a liability burden for Internet Service Providers in respect of copyright infringements.

The BPI (British Recorded Music Industry) which represents the big four record labels, is demanding that the government should make ISPs liable for copyright infringement on the Internet. They want the ability to sue ISPs on the basis that broadbaand subscribers are using the service to download copyrighted music.

Their demand – together with their proposed wording for the new piece of law that they want – is to be found in the BPI submission to the recent UK government consultation on peer-to-peer filesharing. Specifically, they want the government to incorporate a new article in the Copyright Designs and Patent Act (CDPA), which would obligate ISPs implement technical measures to prevent copyright infringement. The BPI’s proposed new Article 97B of the CDPA contains the following text:

“ Service providers shall take reasonable measures (including but not limited to technical measures) to prevent their service being used to infringe copyright.”

It also states that rights holders may sue on the basis of a future loss: “any breach...shall be actionable at the suit of a person who suffers loss or who will suffer loss ...” The amendment is intended to follow Article 97A of the CDPA, which provides a mechanism for rights holders to take action against ISPs in a specified set of circumstances where the ISP is deemed to have actual knowledge of the service being used to infringe copyright, and where certain notice procedures have been followed.

The BPI puts forward an argument that its proposal is in compliance with EU law. My feeling however, is that this will be disputed by lawyers for the ISP industry.

My interpretation of the proposed amendment is that an ISP would only be able to comply with it, by implementing content filtering or monitoring measures of some sort. I would be interested to hear views from lawyers.

ISPA (the UK ISP association) in its submission to the UK government consultation, has outlined its concerns about content filtering, and has made it clear that the technology is “ not sufficiently robust” to provide a workable solution, nor is it “sufficiently accurate to be be admissible in court”. Among other things, ISPA says that the rights-holders do not all use the same technology or methodology to identify files, which by implication would lead to  difficulties at a technical level. They also point out that “the intrusiveness of the technology also calls into question whether the user’s Internet use can be monitored in this way without their consent”.

 ISPA wants to see greater committment on the part of the music industry and other rights-holders to the development of legal alternatives to the peer-to-peer filesharing networks.

Of course, a demand for a change to the law doesn’t mean it will happen. We will have to see in the first instance what is included in the Digital Britain report on the subject of peer-to-peer downloading.


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Copyright Enforcement Enigma launch, March 2012

In 2012, I presented my PhD research in the European Parliament.

Don't miss Iptegrity!  RSS/ Bookmark is the website of Dr Monica Horten. She is a policy analyst specialising in Internet governance & European policy, including platform accountability. She is a published author & Visiting Fellow at the London School of Economics & Political Science. She served as an independent expert on the Council of Europe Committee on  Internet Freedom. She has worked on CoE, EU and UNDP funded projects in eastern Europe and the Caucasus. In a voluntary capacity, she has led UK citizen delegations to the European Parliament. She was shortlisted for The Guardian Open Internet Poll 2012.

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