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***Breaking news *** 4 strikes deal *** Digital Economy Act without the backing of the law***

A so-called 'voluntary' deal is close to being agreed in the UK between the Internet Service providers (ISPs) and the music and film industries for a system of notices to be sent to Internet users who are alleged to have downloaded copyright-protected material from non-licenced sources or 'pirate- sites. This is the deal that Minister Ed Vaizey previewed in Parliament earlier this year, which he called VCAP -Voluntary Copyright Alert Proposals.

Little is known yet about the deal, which was revealed on (leaked to?) a BBC Radio news programme. The BBC is currently the sole source - I cannot find any other information and the companies concerned have not put press releases online - however, it looks like they've tried to broker the Digital Economy Act without the backing of the law and without the involvement of Ofcom and scrapping the independent appeals body. Here's what is known about it.

According to the BBC, the deal is between the British Recorded Music Industry (BPI) and the Motion Picture Association (MPA) representing the Hollywood studios. The BPI and MPA will be paying the four major ISPs to run the scheme. Some very quick maths tells you that the setup costs will total £3 million ( four times £750,000 to each ISP) plus an annual payment of £300,000 (four times £75,000) for ongoing administration.

In a nutshell, the ISPs have agreed to send notices to their customers on the basis of IP addresses supplied by the BPI and MPA. The IP addresses will be selected on the basis of alleged copyright infringement. The ISPs have agreed to send a total of four notices, apparently getting stronger in tone with each repeat notice sent.

According to the BBC, my only source at this stage, the ISPs have not agreed to impose sanctions, as would have been the case under part 2 of the Digital Economy Act copyright infringement measures. The ISPs have also not agreed to construct a database of "repeat infingers" - that is, those who are sent the repeat notices. However, they have apparently agreed to keep a record of those accounts that received the notices for up to a year.

It seems to me to be a waterered down version of the Digital Economy Act - just about as much as the ISPs think they can get away with legally, without statutory protection. The umbrella of Ofcom oversight is of course lacking - an umbrella that, under the DE Act scheme, gave Internet users a veneer of protection against any abuse of the system or invalid notifications and sanctions. (To read more about the Digital Economy Act see my book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms )

Let's unpack it some more. According to the BBC, this new "voluntary" (VCAP) deal between the ISPs and the BPI / MPA will have to get approval from the Information Commissioner before it can go ahead. That's probably correct.

The issue is that the ISPs risk breaking data protection law, and infringing privacy rights under the European Convention on Human Rights. I think they may also risk breaking data retention law. It's this factor that really upsets the rights-holders who have been consistently campaigning for a weakening of data protection law, and for access to retained communications traffic data. That's also why it is the ISPs who have to send the notices - they cannot, by law, hand over customer address details to the rights-holders without a court order.

The rights-holders have the opportunity to take it to court to get those details under UK law, but of course, that is expensive. Is it more expensive than the £3 million setup costs for this scheme? Possibly, according to lawyers that I've spoken to.

The rights-holders are threatening that they will pressure the government to implement the full Digital Economy Act if this deal does not work.

The deal has not been finalised and this is a leak to the BBC. According to ISP Review, the ISP Association (ISPA) has not been involved in the talks, so it is very far from encompassing the whole Internet industry.

This VCAP deal is labelled "voluntary" because it is not underpinned by law and it is an arrangement between the companies themselves. There are some crucial differences between any scheme set up under the DE Act and this one.

The Digital Economy Act was structured to include safeguards for Internet subscribers and consumers. It had to be so, because it had to comply with the law on rights to privacy and freedom of expression, under the European Convention on Human Rights. You can read in my book A Copyright Masquerade how that was manipulated by rights-holder lobbyists. But nevertheless, it was there.

Ever since the DE Act was passed in 2010, there has been an ongoing conflict between the two industries. Eventually, ignoring the high moral and ethical issues, it came down to the commercial bottom line - that is, costs. Who pays, and how much.

Following the Judicial Review of the Digital Economy Act, a court action brought by BT and TalkTalk, the majority of the costs had to be paid by the rights-holders.

Fairly basic maths indicated that those costs could rise up into the tens of millions - see The 84 million-a-year bill for DE Act

I suspect this is an underlying factor behind the rights-holders dropping the Digital Economy Act - which they themselves lobbied for and arguably helped to draft - see my book A Copyright Masquerade - and pushing for this agreement. The £3 million for this is much less than the cost of funding Ofcom and a new public appeals body, on top of paying the ISPs.

In any event, there are still major question marks around this new "voluntary" VCAP scheme. A lawyer speaking on the BBC Radio 4 Today programme this morning said that the VCAP scheme, as proposed in the document that has been leaked to the BBC, would be "unworkable".

Another commentator, a musician, said that he did not want to see such schemes that may have the effect of alienating artists from their fans.

But it also smacks of large corporations thinking they are above the law and that is what may concern us. They lobbied for this law, they don't like it any more, so they will work around it outside the law. Think of the banks.

The sources used in this article are:

BBC News Deal to combat piracy in UK with 'alerts' is imminent

ISP Review UPDATE ISPs Set to Agree Weakened Voluntary Internet Piracy Warning Letters

More comment: Loz Kaye, leader of the UK Pirate Party: Digital Economy Act by the back door plans

If you liked this article, then you may also like my book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics - please cite as Monica Horten, 2014, in Iptegrity.com 9 May 2014 . Commercial users - please contact me.

Tags: Voluntary Copyright Alert Proposals, VCAP, British copyright, deal, ISPs, BPI, MPA, rights holders, UK, Britain,


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About Iptegrity

Iptegrity.com is the website of Dr Monica Horten. I am an  independent policy advisor, with expertise in online safety, technology and human rights. I am a published author, and post-doctoral scholar. I hold a PhD from the University of Westminster, and a DipM from the Chartered Institute of Marketing. I cover the UK and EU. I'm a former tech journalist, and an experienced panelist and Chair. My media credits include the BBC, iNews, Times, Guardian and Politico.

Iptegrity.com is made available free of charge for non-commercial use. Please link back and attribute Dr Monica Horten.  Contact me to use any of my content for commercial purposes.  

The politics of copyright

A Copyright Masquerade - How corporate lobbying threatens online freedoms

'timely and provocative' Entertainment Law Review