An agreement by six UK ISPs to work with the entertainment
industry and government to reduce
illegal file-sharing, could become a model used across other
sectors, according to an intellectual property lawyer.
BT, Virgin, Orange, Tiscali, BSkyB and Carphone Warehouse have
agreed to collaborate on a voluntary code of practice on handling
illegal file-sharing.
Paul Tomlinson, associate at law firm Berg Legal, said although
the agreement, which is in the form of a Memorandum of
Understanding (MoU), is an unusual approach, the government could
introduce it to achieve compliance on issues it identifies in other
industry sectors.
He said if the MoU works by addressing the problems and
eliminating illegal activities, the government will use this
approach as a template.
"This approach saves the government the time, trouble and hassle
of pushing legislation through parliament," he said.
In February, the government said in a report on supporting
creative industries stemming from the
Gowers review into intellectual property that if ISPs could not
reach a voluntary arrangement on curbing file-sharing by April next
year, the government would push through legislation.
The benefit of this "carrot and stick" approach for the ISPs,
said Tomlinson, was that the industry would have some influence on
how it is to be regulated in future.
While embracing the chance to be involved in the process, ISPs
have been quick to say they will not be monitoring the way
customers use connections.
A Virgin Media spokewoman said, "We share the government's
desire to address the issue of online copyright infringement
without infringing our customers' rights," which echoed statements
by other signatories of the MoU.
Charles Dunstone, chief executive at the The Carphone Warehouse
Group, said, "We will not divulge a customer's details or
disconnect them on the say-so of the content industry."
He said the ISP would work with rights holders to develop a
"sensible and legal approach" founded on protecting consumer rights
and privacy."
Kim Walker, partner at law firm Pinsent Masons said, "It is
interesting that it is the rights holders that are policing the
content."
She said ISPs were unlikely to want to get involved in policing
for technical as well as legal reasons.
"It was never going to be easy for ISPs to do it because they
always sheltered behind the 'mere conduit' safe harbour defence,"
she said.
According to European e-commerce regulations enacted in 2002,
ISPs are not liable for copyright infringement if they act as 'mere
conduits' for illegally shared content.
Walker added that Ofcom's involvement means that the problem of
sanctions is taken out of the hands of ISPs.
"It would rather indicate to me that Ofcom might end up having
to advocate some kind of change in the law to make it easier for
everybody to take action without ISPs violating their terms and
conditions," she said.
As part of the agreement, ISPs will take part in a test to write
to customers to tell them that rights holders such as music or film
companies are alleging that their broadband connection has been
used to illegally offer content for upload.
Rights holders will identify the IP addresses of offenders that
are visible on file-sharing sites or that are collected through
honeypot sites set up by the industry. The IP addresses will be
passed on to the ISPs who will connect them with users and send out
letters.
The ISPs will now meet with government to draw up a code of
practice and agree on ways of dealing with repeat infringers such
as blocking content to certain users or limiting the download speed
of their internet connection.