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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.

Original reporting by iptegrity.com! Please attribute us if you refer to the information in this article!


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About Iptegrity

Iptegrity.com is the website of Dr Monica Horten. I am an  independent policy advisor: online safety, technology and human rights. In April 2024, I was appointed as an independent expert on the Council of Europe Committee of Experts on online safety and empowerment of content creators and users. I am a published author, and post-doctoral scholar. I hold a PhD from the University of Westminster, and a DipM from the Chartered Institute of Marketing. I cover the UK and EU. I'm a former tech journalist, and an experienced panelist and Chair. My media credits include the BBC, iNews, Times, Guardian and Politico.

Iptegrity.com is made available free of charge for non-commercial use. Please link back and attribute Dr Monica Horten.  Contact me to use any of my content for commercial purposes.  

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