Ofcom’s decision to release 3-strikes measures before the European vote must be a political tactic, but is it a political blunder? How tightly are the rights-holders gripping the telecoms regulator.

 The British telecoms regulator Ofcom has today announced a draft of  3-strikes measures, just one week ahead of the European Parliament’s anticipated rejection of ACTA (Anti-counterfeiting Trade Agreement). The announcement came  on the midnight news,  and is on Ofcom’s website this morning. It was tipped to come before the summer, but pundits had expected the Ofcom would wait until after the European Parliament vote. The timing does look like

a political move to appease the British rights-holder industries, and it could explain why British Conservative MEPs supported postponement of the European Parliament ACTA vote.

 The Ofcom documents are a draft ‘Code of Practice’ but one should not be deceived by the gentle language. This ‘Code of Practice’ is draft secondary legislation. It will go to Parliament  but  it goes under a   procedure  where  will be little chance for MPs to debate it and no chance for them to amend it.

 The full title of the document is  ‘Code of Practice’ Online Infringement of Copyright and the Digital Economy Act 2010. It implements measures spelled out in the Digital Economy Act , that was rushed through Parliament in the dying hours of the last Labour government. Many MPs at  the time were unhappy with the process. (See DE Bill rammed through UK Parliament in 2 hours)

The Code is now subject to a consultation process. However, it has been drafted in secret. Ofcom has been working on it with industry behind closed doors  for the past two years. Ofcom has released no public information on the talks.

 The Code’s  release today is more than likely a political move on the part of Ofcom. This in itself should ring alarm bells, since the telecoms regulator is legally required to be politically independent.

 The political timing of the release of the copyright code suggests that Ofcom is held captive,  and indeed, held to ransom, by industry.  It should be remembered that many of world’s favorite songs are British, and the music industry is very powerful here.

 In the European Parliament there is a political maelstrom around the issue of Internet copyright enforcement in the context of ACTA. Whilst the final ACTA does not specify 3-strikes, it does call for ‘co-operative efforts’ which is code for the same thing. There  is a vicious battle being fought in the Brussels lobbies.

 We do know that the British government was active in negotiating ACTA (See British were active in ACTA negotiations)

Today’s  release could be an attempt by the rights-holders to put a shot of defiance in the air. It certainly does explain why the ECR MEPs, such as Sayed Kamall,  were supporting the option to postpone the European vote on ACTA until after the European Court of Justice has handed down its ruling. This was the same position as the rights-holders.

 However, in that context, rather than a shot of definance, it could resemble Ofcom’s last stand. Indeed, it could  be a political  miscalculation. Internet copyright enforcement is at the top of the European political agenda (despite the economic crisis) and there is high awareness of it in all 27 countries. Putting the Code out now will pitch it into that controversy.

 Moreover, the ‘Code of Practice’ is about self-regulation by the two industries concerned – rights-holders and ISPs. In the UK, we have been having a vibrant public debate on self-regulation during the Leveson inquiry into press ethics. Witnesses to Leveson are describing on oath how industries cannot be trusted to regulate themselves.

 In any event, the release of copyright Code of Practice today should generate questions about the telecoms regulator and its relationship to industry.

 It could be suggested that industry has  Ofcom by its private parts and is holding a very sharp knife.

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The Code released today specifies  the first stage of a 3-strikes process. Under this code, ISPs will send notifications to users who are alleged to have infringed copyright, and the rights-holders will be passed information enabling them to file court cases against those users. A second stage, that is not yet being implemented, will incorporate an autoated suspension of Internet access.

 The Code says:

 There should be a three-stage notification process with at least one month between each notification, which should be written in plain English and contain sufficient information to inform subscribers about their situation. The first two notifications could be sent by post or email, the third by recorded delivery post;

  This is an original article from Iptegrity.com. You may re-publish it under a Creative Commons licence, but you should cite my name and provide a link back to iptegrity.com.  Media and Academics – please cite as Monica Horten, Britain goes ahead with 3-strikes in face of EU ‘no’ vote on ACTA , in www.iptegrity.com,  27 June   2012 . Commercial users - please contact me.

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