My very short submission preferring efficient regulation and legislation in the form of the Digital Economy Act 2010 (DEA) here, deliberately stays out of the details of the controversial law. The DEA is no less controversial today than it was in 2010 when it came into force. It was clear then that the controversial law was bound to change significantly, consequently, it wasn’t worth setting out any details at the time.
The 3 strike rule
The most controversial aspect of the DEA was the so called “3 strike rule”. Sections 3 to 18 of the DEA amends the Communications Act 2003, and provides that once an “initial obligations code” has either been agreed by stakeholders or imposed by Ofcom, the rights holder shall send an ISP “copyright infringement reports” of alleged copyright breaches by their subscribers. The ISP would then have to send a “Notification Letter ” to the subscriber of the IP address from which the infringing use occurred. They will also be obliged to send the rights holder a “Copyright Infringement List” of the number of notifications (letters) sent by the ISP to the subscriber. The rights holder could use the information from the list to bring court action against the subscriber(s). The infringing subscriber would receive 3 “Notification Letters” (warning letters) from the ISP on each occasion that they had been identified by the rights holder as downloading or streaming unauthorised copyright content. After the 3rd warning letter (provided the subscriber had chosen to ignore all 3 warning letters), the user could have their internet access limited or blocked by the ISP in appropriate circumstances. The 3 strike UK piracy warning letters were initially due to be sent out in 2011.
However, the 3 strike warning letters received a number of set-backs. First was the judicial review case brought by BT and Talk Talk. Mr Justice Kenneth Parker dismissed the application of BT and Talk Talk at first instance. The court of appeal also dismissed the appeal of BT and Talk Talk on the 06 March 2012. Second was the political pressure over the practical implementation of the warning letters. There were serious doubts as to the accuracy of IP addresses in pin-pointing the person actually responsible for the illegal downloads. Additionally there was the expense of implementing the law on ISPs.
Voluntary Copyright Alert Program (VCAP)
The latest position is the system known as the Voluntary Copyright Alert Program (VCAP) of warning letters. The Government’s Communications Minister, Mr Ed Vaizey, announced that this VCAP would be implemented by the end of 2014. In another report from the BBC it appears that the VCAP will not be implemented until 2015.
The VCAP proposals are a less severe version of the original idea back in 2010. According to reports it is now no longer proposed that users will receive punitive measures for repeated offences and ISPs will not be required to compile and hand-over a “Copyright Infringement List” to ISPs. According to this report, rights holders will pay £750,000 to ISPs to implement VCAP and £75,000 pa running costs.
There doesn’t appear to be any workable solution for efficient regulation and legislation of copyright content. The answer certainly is not employing heavy-handed tactics that intimidate users into settling a copyright law suit. The law makers cannot seem to find a solution through legislation either. Perhaps the answer lies in digital rights management software and technological protection measures.