1st post in a series on the government's response to Hargreaves
U-turn, what U-turn? The government was praised for doing a U-turn on web blocking measures in its response to the Hargreaves Review at the beginning of the summer. But closer analysis of the documents reveals there was no such turning. Indeed, buried in the documents is a veritable witches brew of IPR enforcement measures. Were British citizens deceived?
The British government’s response to the Hargreaves review was released at the beginning of the summer. It accepted his proposals to permit format shifting and set up a digital copyright exchange, earning the government much positive media coverage. Thus, it comes as more of a shock when
we learn that his well-received reform of UK copyright law has been used to hide a package of stinging enforcement proposals. A careful reading of the various documents reveals a witches brew of enforcement measures, all of which are on the copyright industries’ wish list. In brief, it’s ACTA on steroids.
In particular, the government’s decision to drop the web blocking provision of the Digital Economy Act has been widely mis-reported. The government has indeed decided not to go ahead – BUT – the reason is that the proposals as set out in the DE Act will be too slow. The DE Act process goes through the courts, and has to follow all of the normal protocols for filing a law suit, therefore it would take months before a blocking order could be issued. That would not be much different from the situation today. Alternative web blocking proposals are being prepared.
Ofcom (ironically, the telecommunications industry regulator) has advised the government that the DE Act provision using the conventional court process is no longer appropriate. Rights-holders have told Ofcom they want to be able to get a website taken out in a matter of hours, not months. Ofcom has advised that the government should look instead at bringing in new measures to speed up the implementation of blocks on websites. Ofcom is transparently acting at the behest of the rights-holders - “We do not think that Sections 17 and 18 would meet the requirements of the copyright owners..”
Far from backing away from website blocking, Ofcom’s report is predicated on an assumption that it is a good idea, and advises in great detail on a package of measures which could achieve that aim.
'… site blocking could still play an important role in helping to tackle online infringement…site blocking could be made more effective where it is supported by complementary measures, such as search engine de-listing and notice and take-down procesess’
Ofcom’s report is packed with suggestions as to how the government could block or take down websites and services without going through the courts. It proposes measures similar to those in the Protect-IP Act, a proposed law which is currently going through the legislature in the US. These measures include blocking access to finance and revenue services - i.e. payment services – and domain name seizures.
‘We believe that measures outlined above could potentially play a role in support of a site blocking scheme… we believe there is value in considering further how such measures could be deployed to enhance the effectiveness of site blocking witin the UK…A Bill has been introduced in the US which would see many of these measures adopted’ (and there is a footnote naming the Protect IP Act).
What is not clear is how Ofcom’s proposals tally with the recent Home Office statement that it was not considering blocking of Internet media in the context of riots or other public order situation. It is to be expected that the there would be some co-ordination across government, although the two policy areas are quite separate.
The documents from both Ofcom and the government contain thinly veiled calls for intermediary liability over copyright, incorporating an extension of such liability not just to ISPs, but to eBay, web hosts and domain registrars. References to ‘partnerships’ and other euphemisms are made throughout the various documents.
It’s all couched in the usual obfuscatory language: “effective dialogue” and “joint working between law enforcement and commercial sectors”.
“Other businesses such as market operators, shipping and courier companies and those who support the infrastructure of the world wide web and deliver e-services like auction sites and online storage facilities are relevant to IP crime issues. We must make new efforts to bring these parties into effective dialogue.”
Equally thinly veiled is a role to be taken by law enforcement – ie the police - in directing web blocking measures. The document on criminal liability for copyright refer to joint monitoring operations between rights-holders and the police. In the spirit of public spending cuts, rights-holder are to be asked to provide more ‘intelligence’ collection and market monitoring data to government and law enforcement authorities.
Overall, it is very clear from the reading all the documents that the government is not dropping the idea of website blocking, at all. Instead, hand in hand with Ofcom and the copyright industries, it is working out how efficiently, and how fast, it can drop a digital guillotine.
Have citizens been deceived? Arguably they have. The headline certainly was disingenuous. And fans of Yes, Minister will know that civil servants will make a headline when they plan to do nothing. On the other hand, the devil was all there in the detail which was available for anyone to read.
I will be posting a series of articles analysing the British government's response to the Hargreaves Review of Intellectual Property. Keep checking in to iptegrity.com over the next few days.
My book tells the story of a previous attempt to sneak in enforcement measures: The Copyright Enforcement Enigma: Internet Politics and the 'Telecoms Package'
PLEASE CITE AS: Monica Horten (2011) Hargreaves response: The sharp under-belly of enforcement http://www.iptegrity.com 1 September 2011 . This article is licensed under a Creative Commons License for non-commercial purposes, with the author attributed.