Wednesday 10 November 2010

Public Intermediaries and the Digital Economy Act

Last night I attended an event at the British Library run by DEAPPG on the impact that the Digital Economy Act will have on Public Intermediaries. Speakers were Ben White (Copyright for Knowledge), Marshall Mateer (National Education Network), Mathew Dean (Association of Colleges) and Trefor Davies (TIMICO). Sadly no-one from OfCom could be present.

Costs to the Education Sector

Highlights of the evening for me were the figures in Ben's presentation: according to JANET, the network provider for the HE and FE sectors, the cost of implementing software to comply with the DE Act will cost the sector around £24 million every 3 years. Not only that; the appeals process could cost a university as much as £40,000 for a single appeal, equating to approximately £32 million across the sector per annum. In times like these, no university or college is going to have the funds to pump into dealing with copyright infringements as required by the Act. Moreover, the funding will mostly be public...what's more appropriate: tackling copyright infringements via the process set out in the Act and by OfCom's Initial Code of Obligations, or investing in learning equipment and resources for the students of the future?

Implications for Implementation

Educational establishments already have adequate procedures and policies in place for dealing with infringements. Compliance with the Act would involve cutting across current disciplinary procedures and increasing the level of user monitoring over the network. There are additional implications around the issue of data retention, privacy and freedom of expression. Interestingly, Marshall Mateer added that there is no evidence of mass downloading in schools.

So as public intermediaries, why do we need to stand against this?

Just a few of the reasons (highlighted last night) why the DE Act as it stands could have disastrous consequences on public intermediaries:

1. High impact on the public purse, because infringement cases will be left to the courts to decide. This costs public intermediaries money in terms of time and legal fees, and this process could repeat ad infinitum.

2. IT systems will become more locked down as opposed to more open, the opposite of what education and indeed the government is trying to achieve.

3. P2P networks are often used to transfer large amounts of research data and legitimate content. By blocking these, legitimate data sharing can't happen, thereby having a negative impact on research and the knowledge economy.

4. The real file-sharing activity will go underground with the use of tunnelling, which is impossible to block according to Trefor Davies.

5. Risk-averse institutions could withdraw internet access altogether for fear of non-compliance with the Act.

6. Where are the infringement letters going? For Local Authorities and universities and colleges, the administrative burden on discovering the infringement letters and then tracking the infringement itself is huge, and they could find themselves cut off from the internet before the relevant person has even seen the first letter.

Is it all doom and gloom or is there a solution?

A few possible solutions were proposed by the panel last night, and have been taken away for discussion in the House of Commons later in the month. These were:

1. Create exceptions within the DE Act for public intermediaries, similar to those exceptions in the Copyright, Designs and Patents Act.

2. Define universities, colleges, libraries, museums and public WiFi providers as 'Communications Providers' (this would render them exempt under the current provisions).

3. Adopt a positive creative as well as consumer approach. Pupils and students are creatives now too, and should be better informed of the laws of copyright as it pertains to their own work as well as the work of others.

4. The library and education sectors (amongst others) should be engaged by the government and its relevant bodies on how to progress with IP and copyright law.

Final Thoughts

By the end of the evening there had been an admirable attempt to highlight the issues faced by public intermediaries in light of the DE Act and its overbearing principles. The general feeling was that there was a lot wrong with copyright law as it stands, but there was some optimism that Cameron's review might change the law for better. In the meantime, we wait with bated breath for OfCom to release its Code in the hope that they get the message.

NB: Copyright4Knowledge have been told that universities are not considered ISPs.