Ofcom, Britain’s industry-cuddly communications  regulator, is likely to find that its plans for implementing the copyright '3 strikes' scheme in the Digital Economy Act will back-fire sooner rather than later.  Two of Britain’s largest ISPs have indicated that they cannot meet the timetable set out by Ofcom, and, what’s more, they want cash upfront to do it.

The two ISPs, BT and Everything Everywhere (yes, that’s its real name)  have made their point in a formal response to an Ofcom consultation. Ofcom was seeking views on the Costs Order, a Statutory Instrument that will begin the process of implementing the copyright infringement measures in the DE Act. Officially, it is the Online Infringement of Copyright: Implementation of the Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order 2012.

 The consultation questions addressed the project management for a copyright notification system – the first and second of the ‘3 strikes’ in the DE Act. Ofcom has proposed a schedule whereb the first notices will go out on 1 March 2014.

 The two ISPs have told Ofcom that its proposed timing of nine months to get the notification systems in place will not be sufficient. Both make it plain that they need a further three  to six months as a minimum.

That will mean that the proposed start date of March 2014  is unlikely to be met. System development  would have to commence by next January   to allow the full amount of  time (12-15 months)  they say they need,  and that is unlikely to happen.

The  implementing legislation has to go through Parliament, as well as get approval from the European Commission, before anyone can begin  building systems. Ofcom has already put the Costs Order before Parliament,  in its haste to meet its own schedule.

However, the Secondary Legislation Scrutiny Committee, which carried out the first Parliamentary examination of  the Costs Order, has indicated that it has reservations. The committee  has drawn the DE Act Costs Order to the special attention of both the House of Lords and House of Commons. One may reasonably consider that it will be delayed. 

 Moreover, the ISPs have said that  in all likelihood, Ofcom has underestimated the costs of building the necessary systems. The ISPs costs, of which the rights-holders pay 75%, are likely to be considerably higher than Ofcom has suggested. And other, associated costs, such as complaints handling by the ISP (prior to any appeal by the subscriber) have not been fully taken account of.

 Not unreasonably, the ISPs  want cash upfront from the rights-holders to cover their capital outlay for the system build. Failing that, they want payment for the capital cost to be made in the first month of notice-sending.

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Additional information: According to the Open Rights Group,  a discussion of the Digital Economy Act Costs Order that was to have taken place in the  British Parliament, has been cancelled.  It is not clear to me what status this discussion would have, as the DE Act Costs Order is Secondary Legislation, that in the normal process, would have discussion at all.

 This is an original article from Iptegrity.com. If you refer to it or to its content,  you should cite my name as the  author, and provide a link back to iptegrity.com.  Media and Academics – please cite as Monica Horten,   DE Act Costs Order: has Ofcom lost its sense of timing?, in www.iptegrity.com,  4 October   2012 . Commercial users - please contact me.

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