Stephen Timms: Broadband users should receive letters from ISPs in case of alleged copyright infringement

A letter from the Rt. Hon. Stephen Timms, the Responsible Minister in the UK for "Digital Britain" of 26 October 2009 - this is a response to the ISOC-ECC memorandum on IPR of August 2008 (also attached).

Thank you for your email of 2 September in which you raised concerns about the Government's policy on illegal file sharing as announced in the Digital Britain Report.

The "graduated response" or "3 strikes and you're out" system has been discussed between the different industry parties in the context of voluntary solutions, and it is the basis of what was proposed in France. As you may be aware, these proposals were found to be in breach of the French Constitution and, at the time of writing it is not clear what action the French will now take. Also the European Parliament has made it clear in the recent telecoms package its opposition to any regulation which could bar a consumer from Internet access without court approval. Account termination is not and has not been part of any regulatory proposal to combat unlawful file-sharing.

I should also point out that the situation in the UK is different to that of France where illegal file sharing is considered to be a criminal offence and not a civil offence.

The Government wants as many people as possible to enjoy all the benefits that broadband Internet can bring. New technology has changed the way people want to use and access media content, in some cases faster than products and services commercially on offer have developed. But we are also clear that the benefits of the Internet must include economic benefits for our creative industries and artists. We therefore take extremely seriously the problem of illegal file sharing, and have been working closely with rights holders, media companies and Internet firms to develop practical solutions to reduce and prevent this.

Whilst all parties would prefer a voluntary, rather than a regulatory, solution, it is clear that such a commercial solution is very difficult to achieve. We recognise that one problem is the need for a level playing field and therefore acknowledge the need for a regulatory baseline. Last year we held a consultation on possible legislative options to tackle file-sharing; this, submissions received and the Government's response can be found at:

http://www.berr.gov.uk/consultations/page47141.html

We set out how we plan to move forward on this in the Digital Britain Report, published on 16 June, which identified the need to encourage new sources of content and increased levels of media literacy, as well as how to tackle those unlawfully sharing copyright material (Chapter 4). The report can be found at:

http://www.dcms.gov.uk/what_we_do/broadcasting/5631.aspx

We propose to legislate to ensure that consumers whose broadband account has been identified in connection with alleged copyright infringement would be alerted by letter. This would set out the legal position but also provide pointers for help and information on, for example, how to protect wireless networks properly, where to find legal sources and routes of appeal. This letter would come from the Internet Service Providers (ISP) concerned, not a law firm. This should help address many concerns about individuals being wrongly identified, not haying the correct information or indeed feeling pressured by the threat of legal action. For those individuals who choose to ignore the letter, they will receive a number of
further warnings before they are ultimately added to a list of those subscribers most frequently alleged to have breached copyright. Rights holders will be able to use a court order to obtain the
details of these individuals and then take targeted legal action as appropriate. This should ensure that individuals have ample opportunity to change their behaviour, take appropriate action to, for example, secure their wireless connection or indeed appeal. It would also mean that only those who chose to ignore the warnings and who appeared to continue to infringe copyright on a large scale would face legal action.

As a final safeguard, this activity would be underpinned by a Code overseen by the independent regulator the Office of Communications (Ofcom). A key issue the Code would have to cover is consumer protection - one of Ofcom's prime roles. However, we are breaking new ground in legislating to tackle this type of activity and while we are confident these measures will significantly reduce the level of unlawful file-sharing, we cannot be sure. That is why we are also including the option to allow the introduction of technical measures if the notifications and legal action do not prove as effective as we expect.

We committed in the Interim Digital Britain report to consult on the detail of the legislative proposals and this consultation was issued on 16 June. Following this, concern was expressed at the length of time it would take to implement these measures - or indeed move to technical measures. We therefore decided to modify these proposals and issued a statement on 25 August explaining our thinking. The consultation on these proposals closed on 29 September. We are in the process of analysing all the responses received and intend to issue a summary along with the Government's top-level response in November. We have included your email among the responses being analysed.

However it is not possible to look at file-sharing in isolation. There is also the need to ensure proper education of consumers, for new attractive legal sources of content as well as a system of notifications; these will play a significant part in that education role. However it is vital that there are attractive legal offers available so that unlawful behaviour is no longer the "default" for many seeking content online. That is why we welcomed the recent announcement by Virgin Media and Universal on the launch of a subscription download model, allied with Virgin taking anti-piracy measures on its network. This is the type of agreement which will play a critical role in moving the majority of people away from
piracy.

Our ambition is to see the UK as the leading major economy for innovation, investment and quality in the digital and communications industries. The Digital Britain Report aims to secure four key conditions, namely: open markets; empowered and informed consumers and citizens; universal access to public service content; and a responsive regulatory framework. One work-stream will explore business models for content development in the digital age and the impact of new media on the content market. In addition, the UK Intellectual Property Office will take forward work to deliver a digital copyright framework which supports creativity, investment and job creation.

Thank you for taking the trouble to raise this issue with us.