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Ofcom proposes to leave it to industry to decide how the Digital Economy Act will operate. It will leave gaps in the Initial Obligations Code for industry to fill. Given that Ofcom has a mammoth £142 million budget, should we excuse this lack of attention to the public interest?


Behind closed doors, Ofcom is driving forward  the previous Labour government's proposals for a 3-strikes copyright enforcement regime which risks blocking websites and restricting the access of UK citizens to the Internet. But information emerging from the process suggests that Ofcom is trying to fudge the process in order to push it through in the timescale agreed with the entertainment industries.


Ofcom is drawing up the Initial Obligations Code which will implement the first phase of the 3-strikes/graduated response measures for copyright

enforcement on the Internet. Effectively, Ofcom is drafting detail of  the law - which was left out of the Bill that went before Parliament, as the previous government acted under duress from the entertainment industries.


  Regular iptegrity readers will know that the law passed by Parliament on 6 April did not contain the detail of how these measures were to be implemented, and that it would be Ofcom's job to draft them.

But this is why Ofcom's role is so important, and in particular the requirement - one would think -  for Ofcom to understand and represent, the public interest.

Ofcom is trying to get the Initial Obligations Code published in the next few weeks. In order to meet this super-rushed timescale, Ofcom is not going to work on the detail. It will, as I understand,  establish instructions which industry will be free to interpret.


 What also seems to be odd is that Ofcom  may  pick and choose which ISPs will initially have to comply with the DE Act and which will be, temporarily, exempt.  This seems to me like an abbregation of its role as a law-maker and a regulator.


The Initial Obligations Code will deal with the warning and notification process for Internet users;  cost-sharing between ISPs and rights-holders;  and the "appeals process".  The latter is the process where Internet users can appeal against a rights-holder allegation  and which is arguably in contravention of EU law.


The situation is unusual as  the regulator's role is usually to arbitrate the implementation of the law in respect of the industry concerned, not to draft the text.  It does put on Ofcom an additional responsibility to look after the public interest .  This is the citizen's interest, and it is a different role from dealing with industry interests.


  It requires and understanding  of what citizens deem acceptable in a democratic society.  Citizens have  spoken up against this law, and  their arguments should be taken account of. Currently, Ofcom is allowing a couple of groups into the discussion room, but this appears to be little more than lip-service. .


The Digital Economy Act may be repealed if the Liberal Democrats can persuade their Conservative coalition partners,  in which case, all of this will be - dare I say it - academic.

But given that Ofcom has a total budget of £142.5 million from the public purse, shouldn't we expect better?


This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010) Ofcom cooks up a 3-strikes fudge - industry to do it themselves 17 May 2010


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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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