The next Ofcom stakeholder meeting on the Digital Economy Act (DEAct) is taking place next Tuesday June 1 at 3pm at Ofcom. The meeting will be looking at Ofcom’s work in relation to cost sharing under the statutory instrument, on which BIS is currently consulting.

The DEAct was heavily weighted in favour of rights holders and we should be seriously concerned that the Code of Practice does not adopt a similar bias.

ISPs are intermediaries that pass packets of information over their networks. ISPs neither benefit from, nor encourage, users to infringe copyright law online. As such ISPs should not be financially liable for the cost of enforcing the law against these users. Moreover the regulator should not seek to use existing resources, already paid for by the ISP industry as part of the Ofcom levy, in the supervision of the Code of Practice.

The Internet offers excellent opportunities for rights holders to access their target market with relevant lawful content without the significant costs associated with production, distribution and marketing that exist in a non-digital environment. Witness today’s announcement by the Times Newspaper Group that they will charge for online access to timesonline.co.uk. If the business case for the DEAct is as strong as the rights holders say it is then they should not have a problem with paying for its enforcement.

The digital economy, as we keep hearing, is vital to the competitive future of UK plc. Imposing any financial burden on ISPs in order to protect existing outdated business models of rights holders is wrong. It will introduce a slowdown effect on the vital investment in infrastructure and innovation required to underpin this digital economy. Imagine if BT had to divert some cash away from its fibre rollout in favour of supporting the DEAct processes.

For these reasons and to maintain consistency with the established principle of ‘beneficiary pays’, it is clear that rights holders should be responsible for all actual costs associated with this process. There is no precedent in UK law for one group to incur the costs associated with protecting the private interests, e.g. copyright of another.

Furthermore, ISPs are fully reimbursed by law enforcement agencies and other relevant authorities for the costs incurred when assisting criminal investigations, eg information disclosure under RIPA. This same principle should be applied when assisting the private sector with cases of potential civil liability. In this case the private sector is the rights holder community which on the whole makes substantial profits from copyright.

Indeed, the Government has previously admitted in its consultation document of 2009 that the cost should usually be borne by the party that will benefit (Govt Consultation, June 2009, 4.17).

As regards the consultation document itself it is unreasonable to expect complete and informed answers to the questions posed given the uncertainty that surrounds the implementation of the DEAct.

The decision to publish the consultation before the Bill had received Royal Assent at a time when it was still liable to change must be considered to be highly questionable.

Even once Royal Assent was received, because the responsibility for determining most of the contentious detail was delegated to Ofcom, many important areas of the Act remain unknown.

The subsequent decision to draft the Code of Practice largely behind closed doors and without any serious degree of coordination with stakeholders has only served to further highlight the unreasonableness of the whole situation.

In this context, to choose to issue a reduced 8-week consultation period is completely unsatisfactory and goes against the principles regarding consultation for government departments.

For information the government’s own code on consultations specifically requires that: Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible.

Concerns around the minimal consultation period are even more pressing given the potential of the legislation and consultation to impact many stakeholders that could be included downstream (eg public WiFi, libraries and universities). Also considering the complexity of the issues surrounding the DEAct it would make sense that the “longer timescales” apply here.

We should ask ourselves whether there is anything that can be done about this? The Liberal Democrats continued to be vocal about repealing the DEAct up until very recently. They seem to have gone very quiet…