Amongst all the viewpoints on Digital Britain, it would be easy to miss that our industry has won a huge battle of principle. Government has accepted our case that ISPs are the natural control point on the internet, with a responsibility to tackle illegal filesharing.
BPI campaigned hard for recognition of this principle for several years, and it’s heartening that we now have allies across the creative industries, and from most voices within the music sector, for a “graduated response” solution. The recent adoption by UK Music of an agreed position on graduated response was a step forward. And last week’s announcement by Virgin Media that it will apply graduated response alongside its unlimited mp3 service shows that even a major ISP accepts it is a proportionate and workable approach to steering illegal downloaders onto legal services.
Digital Britain certainly hasn’t delivered a full solution to illegal downloading, but there are some elements to embrace. A clear statutory duty will be placed on Ofcom to reduce piracy. The legislation will reflect the commitment from Government, won by BPI during the MOU process, to reduce online piracy by 70%. ISPs will send large numbers – potentially millions – of notices to internet users, based on evidence collected by BPI, raising their awareness of legitimate services and copyright. Evidence suggests that this could reduce illegal downloading by perhaps 30 per cent, and save the industry up to £60 million per year.
The Government has also listened to our arguments that “write and sue” won’t achieve the 70% target and is giving Ofcom “backstop” powers to impose technical measures - which unfortunately we think will be required.
But the pace of action doesn’t match the urgency of the problem. With another consultation before legislation comes before Parliament, it may be 18 months before notifications go out and another 18 months again before Ofcom can introduce technical measures, if “write and sue” fails. Even that depends on Ofcom deciding we have ‘done enough’ on education and new business models. And Ofcom might refuse to act unless rightholders have brought mass legal actions against serial filesharers. We remain convinced graduated response would be a better solution.
We’re urging Ofcom to get Code of Practice discussions underway immediately, to try to accelerate the start of notifications. And we have stressed to Government the need to get the legislation before Parliament quickly – a position echoed by Conservative MPs.
We have consistently said that battle against illegal downloading will be won by delivering fantastic legal services and continued education. But some kind of proportionate discouragement to piracy is also essential. We have taken some steps forward. There is a long way still to go.