Ofcom presents concept code of conduct for tackling file-sharing

Ofcom, the British telecoms regulator, has recently published a draft code of conduct to institute measures for dealing with file sharing. The code is part of the Digital Economy Act’s plan to stimulate the creative industries’ online presence. If implementation goes according to plan, ISPs will have to forward the personal data of file-sharers to rights holders.

Internet users that receive three letters of warning within a one-year period, run the chance of being summoned to court by the rights holders.  Rights holders check who share their content. This information is passed to ISPs that in turn send a letter to the alleged infringer.

When the file sharer does not change his behaviour, a second letter is sent after at least one month, and after that, another. When even after the third letter, the file sharer has refused to mend his ways, the ISP needs to forward the personal data of the offender to the right holder. After one year, the ISP needs to delete the letter.

The measure will at first only apply to ISPs with over 400.000 clients. The Internet providers that meet this criterion represent 96% of the British market. When the measure has been implemented successfully, Ofcom aims to also include smaller ISPs.

Ofcom has published the draft for public consultation, as a first step of three consultations. In July, another round follows to solicit input on enforcement issues and a third one, in September, needs to clarify the issue of sharing the costs. The EU finally needs to approve the code. Ofcom hopes this can be done before Januari 8th, after which the regulator want to implement the measure as soon as possible.

British ISP TalkTalk, the second largest of the island nation, has always been very vocal in its scepticism of the DEA. A spokesperson said, in reaction to the draft: "Ofcom's draft code of practice is a valiant attempt to implement the Digital Economy Act's proposals, but we think it has the potential to turn into a bureaucratic dog's breakfast."

The ISP fears that consumer rights and data protection may be the victim of the measure and points to the importance of good access to fair appeal. TalkTalk feels the code lacks in this respect. When people receive a warning, it is unclear what can be done about it. Also, says TalkTalk, Ofcom has designed the rules in a way that owners of public WiFi-networks, for example in libraries and cafés are responsible for infringement via their networks. That could destroy such courtesy services. Furthermore, TalkTalk states that the market could be distorted as only large ISPs need to comply with the measure.

Finally, the ISP points towards the costs. TalkTalk fears to be handed the cheque for tackling file sharing and to have to incur those costs through their subscription rates. The spokesperson says: "Copyright owners are the only ones that will benefit from this system (…) so broadband customers will in effect be forced to subsidise the profits of large music and film companies". Thus, the ISP seems to say that 1) enforcement of rights is something that firms or individuals should pay for themselves and 2) that if broadband customer should subsidies anything, it ought to be the profits of the large telecom companies.

31 May 2010