5th post in a series on the government's response to Hargreaves
Did the DE Act intend private companies running (Indian?) call centres to be the Appeals Body?
Under proposals published in August, Ofcom plans to privatise the Appeals process for the Digital Economy Act copyright enforcement measures. Ofcom plans to run a commercial tender for a private company to run the new Appeals body, which will sit in judgement on allegations of downloading copyrighted material and ultimately on whether people are cut off. Effectively, the Appeals Body, which will perform a quasi-judicial function, will be outsourced,
and it is not clear what kind of oversight there will be or how its duties will be defined.
What is clear is that cost will be a significant factor in Ofcom’s final selection – up to 30 per cent of the decision will be down to cost. This means that the successful bidder will be under pressure to keep costs down.
The funding for the Appeals Body will come from the rights-holder groups, notably the BPI and the Motion Picture Association. It is not transparent whether or not they will have any say in either the tendering process or the budget.
The way the costings have been prepared is suggestive of a call centre operation. This is especially concerning.
Just imagine the successful private bidder, under cost pressure, sets up the call centre in India. Will we be facing the scenario of an Indian call centre meting out British justice?
The role of the Appeals body is to review allegations of copyright infringement made against British citizens, who stand to be taken to court if their appeal fails – and in future, the appeal could directly concern a punishment.
Under the Digital Economy Act, people who are accused of copyright infringement, and who are sent warning notices by the ISP, may appeal against the notices. They may also place an appeal against going on the so-called Repeat Infringers List. The reason why the appeal could be important to them, is that the notification and the List, are the preparatory stages of a judicial process. Under the Act as it currently stands, rights-holders will be expected to take court action against the people on the Repeat Infringers List.
If the Technical Measures are ever brought in, then the Repeat Infringers list would form the basis of a suite of automated punishments - including cutting off Internet access.
The Appeals Body must legally be independent of Ofcom, but under such a privatised system, there will be obvious questions of oversight. It risks, among other things, creating a massive bureaucratic hierarchy which was not intended under the DE Act.
It is of course totally outrageous for Ofcom to even propose a privatised system for the appeals process and is yet another pointer to Ofcom’s failure to take on board the citizenship aspects of copyright enforcement.
Please attribute this article: Monica Horten (2011) Ofcom invites private bids to run Appeals Process http://www.iptegrity.com 23 September 2011 .