copyright infringement Archives

It’s a while since I covered the Digital Economy Act, its ramifications and repercussions but last week saw the court hearings take place for the BT/TalkTalk Judicial Review. I was somewhat mistaken in the belief that we might also hear the output of the JR last week but this is not so. The judge needs to go away and deliberate in the way learned people deliberate (this is either hand on chin looking thoughtfully into the distance or chin on chest looking down at interlocked fingers).

The media is already saying that the DEAct implementation is going to be subject to long delays – it already is – we have been waiting for the publication of the Code of Practice for months now. What has been going on in the meantime is further lobbying by Rights Holders to try and get ISPs to block access to websites that promote or support copyright infringement.

Initially this was seen as strange because the DEAct already provides for this to be looked at in the event that the three strikes mechanisms isn’t seen to be working. Cake and eat it springs to mind.

With hindsight it looks as if this was an insurance policy on the part of the RHs in case the DEAct was thrown out in court or subject to delays.

Ed Vaizey has already met with ISPs and RHs in round table meetings to digital content and piracy, the second time being on 23 February 2011. No agreements were made and I believe this is a very long way off. A further meeting is being held next week.

Blocking is likely to be expensive, ineffective, have unintended consequences (eg innocent websites being blocked), seen as censorship, stifle the open growth of the internet ecology and require huge involvement of the judiciary – I certainly would not be happy with ISPs or Rights Holders taking ownership of choosing which sites to block.

Come on guys. Lets try and see a bit of sense here.

Some of you will have been following the progress of the Scarlet/Sabam case that is currently being dealt with by the European Court of Justice (ECJ). Scarlet, a Belgian ISP (now owned by Belgacom but a small independent at the time the case was started in 2007) was ordered by a national court to implement technical measures to block all P2P traffic that infringes rights held by the Belgian Society of Authors, Composers and Publishers (SABAM).

The court’s decision was subsequently referred to the ECJ who has to clarify whether the requirement to implement traffic-filtering mechanisms is consistent with EU legislation and whether a proportionality test has to be applied if this is the case.

Following upon the submission of written evidence to the court, the ECJ held a hearing on Thursday 13 January that included representations from the European Commission and Member States. The judge will deliver his opinion on 14th April

The outcome of this case will potentially have great bearing on a number of regulatory themes currently trending in the UK – not least being the Digital Economy Act and the recent discussions on porn blocking.

We do need to note that the report was produced by EuroISPA and should therefore be careful in reading into it any assessment as to the likely outcome of the hearing. It looks ok to me 🙂 .

In a nutshell ISPs and a number of EU states considered the technical blocking order to be disproportionate. The report also suggests that in the light of strong arguments to the contrary the judge did not appear to be convinced in respect of filtering measures believed by SABAM to be technically possible.

The report: