08/09/2011 11:01 (UTC-08:00) Pacific Time (US & Canada)
Recent developments in the United Kingdom show strong support for the creative sector in our work to prevent our creative content from theft. In a series of announcements over the past week, the UK government clearly expressed its opinion that under existing law Internet Service Providers (ISPs) can, and should, block rogue sites that traffic in stolen content – a key and very encouraging step forward for the over 1 million people employed in the creative industries here.
A bit of background: at the center of these developments is a report by Ofcom, the independent regulator and competition authority for the UK communications industries, among whose responsibilities is the implementation of the UK’s Digital Economy Act of 2010 (DEA). In “‘Site Blocking’ to reduce online copyright infringement,” Ofcom’s review of two sections of the law aimed at rogue sites (Sections 17 and 18), Ofcom addressed the technical issues associated with site blocking – and concluded that it is possible for ISPs to block sites and that there are a variety of options for how they might do so.
Importantly, however, Ofcom’s report also addressed the practical implications of achieving such blocking in a timely and cost-effective manner. Taken together, Sections 17 and 18 of the DEA essentially state that Government can develop regulations allowing for injunctions blocking access to Internet sites if it chooses to do so in the future, subject to consultation and Parliamentary review. The Secretary of State for Culture, Media and Sport, which oversees Ofcom, had asked the regulator to evaluate whether Sections 17 and 18 “provide an effective and appropriate method of generating lists of sites to be blocked.”
Compared with other, already existing mechanisms available to rights holders seeking to reduce the harm caused by rogue sites, Ofcom concluded that Sections 17 and 18 would actually work less effectively for rightsholders than other measures already in place. Ofcom wrote: “Specifically, we do not think that using the DEA would sufficiently speed up the process of securing a blocking injunction, when compared to Section 97A of the UK’s Copyright Designs and Patents Act, which already provides a route to securing blocking injunctions. As a consequence we are skeptical as to whether copyright holders would make sufficient use of any new process.”
It is likely that, in coming to this important conclusion, Ofcom’s analysts were monitoring closely the progress of the case regarding Newzbin2, the site notorious for indexing and providing access to stolen movies, music, games, software and books. Howard Gantman last week blogged about the groundbreaking judgment in that matter, in which Justice Arnold ordered BT, the UK’s largest ISP, to block access to Newzbin2.
That case is important here because it was, in effect, a test of content creators’ ability to use Section 97A of the CDPA to ask courts to require ISPs to block sites that clearly infringe copyrights. Now, in the wake of Justice Arnold’s decision recognizing that courts can issue orders to prevent illegal activity online, Ofcom is able to say with confidence that rights holders have an effective mechanism for addressing rogue sites under existing law, without needing to turn to the Digital Economy Act.
This is a positive step forward for content creators, giving the creative community strong assurance that the government and the courts will not stand by while our work is stolen out from under us. Though misleading comments have circulated that the upshot of the Ofcom report was a rejection of site blocking, that’s simply not the case. We all know there are no miracle cures to stop content theft – but in its announcements last week, Government acknowledged that preventing access to rogue sites can go a long way.
The next step is to develop an expedited judicial process to allow rights holders targeted by rogue sites to utilize the provisions of Section 97a of CDPA, as in the Newzbin2 case, without the need for a protracted and expensive legal fight. We will continue to work with UK Government on all the issues raised in this and other reports released this week, as well as with our partners in the creative industries.