Not quite switched on

The UK Government formally set out its stall as to how Britain could benefit from an enhanced digital economy in January 2009, when it published its interim Digital Britain report (Journal, March, 36). Much was said at the time about its lack of vision and just how its objectives would be funded. Now, a few months on, the Government has produced the final Digital Britain report (www.culture.gov.uk/images/ publications/digitalbritain-final report-jun09.pdf), which it describes as “its strategic vision for ensuring that the UK is at the edge of the Global Digital Economy”.

The main aim of the report has always been to provide a “programme of action” that would hopefully drag Britain from behind to the forefront of the digital economy and ensure that we make the most of the new types of media that are available. At 245 pages the report claims to be the “most wide-ranging blueprint ever produced for the future role of technology in the UK”. It covers issues such as universal access to broadband, public service broadcasting, digital radio upgrades and regulatory suggestions with regard to piracy. Granted, it probably is the most wide-ranging discussion about Britain’s future role; whether it is as far reaching as many would like is of course another matter.

In its foreword the report identifies that “Doing nothing or leaving everything to the market would leave Britain behind”. This suggests that at long last the Government has realised that the clock is ticking for Britain and that we desperately need to formulate a strategy at least to keep up with our counterparts in America, Asia and Europe. It notes that the importance of staying ahead of the game is heightened by the severe global downturn from which all markets, including Britain, continue to suffer (nothing earth shattering in this statement!). Although the economic downturn has produced short term economic pressures, the report “primarily seeks to position the UK as a long-term leader in communications creating an industrial framework that will fully harness Digital Technology” (p4).

Nothing is clearer: high growth sectors such as software companies and other content developers need improved infrastructure. Those underserved through poor broadband service will not benefit from such economies and will remain excluded from a social network subset without affordable high-speed broadband, only enhancing, some would argue, the existing inequalities in society today.

This article will attempt to examine legal developments that the Digital Britain report has raised in four key areas.

Tackling digital piracy

The issue of piracy (or, more accurately, file sharing) has never been more current. In April, we saw the conviction of the founders of The Pirate Bay, a Swedish online file sharing website, who were each given a custodial sentence and made to pay £3 million in damages; and in June an American woman was also fined £1.2 million for illegally sharing 24 songs in the first US file sharing case to be brought to trial. With such international focus on illegal file sharing, a British response was anticipated to address this issue and provide real progress in safeguarding such intellectual property.

In doing so, the Digital Britain report has introduced targets for internet service providers (ISPs) to make inroads into reducing illegal file sharing. The approach taken is a departure from that of a number of countries including France and New Zealand. The guardian of this proposed new initiative is Ofcom, the broadcast regulator, who will be granted new powers to ensure that ISPs comply with a code of practice to tackle the problem of piracy. As first raised in the interim report, a new “Rights Agency” would develop this code of practice, although where the Agency fails to get off the ground, the task will fall to Ofcom.

Initially, ISPs will be required to notify users who are file sharing illegally that their conduct is unlawful, in a bid to reduce online piracy. The intended aim of such measures is to reduce the level of infringement, amongst those individuals who are notified, by 70% within 12 months of notification. If this reduction is not realised, ISPs then will have the power to gather information in relation to serious repeat infringers and, if a court order is obtained, release this information (including the identity of those offenders) to copyright holders to allow them to take civil action (see chapter 4).

In addition, ISPs will be authorised to use technical measures against serious repeat infringers, such as bandwidth reduction (in an attempt to slow down their internet connection), protocol blocking or port blocking. Interestingly there will be no powers for ISPs to cut off any infringer’s internet connection completely (the “three strikes and you’re out” model), an issue which has been a hot topic within Europe recently.

Clearly the measures are a starting point; however there is much discussion as to how effective they actually will be. The report asserts that notification is an effective way of reducing illegal file sharing and that there is an issue with education, where many people are not aware what constitutes an illegal download. This is a fair point; however the problems do not principally fall to individuals who make infrequent, or even simply one-off, attempts to share. The problem lies fundamentally with the larger and repeat infringers where there is little evidence that either notification or education will make any real impact on their behaviour. Further, the 70% reduction figure is viewed by many to be overambitious and a target that is unrealistic to achieve (Outlaw News, 16 June 2009).

How ISPs come to collect data, and how and when they can share such data, rightly raises piracy concerns as to how ISPs comply with data protection regulations, and until there is further clarification from Ofcom about the nature of data allowed to be obtained, collected and shared, these concerns will not go away.

Finally, the ability of ISPs to interfere and restrict internet access raises several questions. With such policies there are concerns that they will be enforced regardless of the individual who is file sharing illegally. In order to impose these measures the ISPs may apply them in a blanket fashion and may not localise the user. Where there are unsecure Wi-fi networks in operation, any number of people could use them (“piggy-back”) to download illegal files, making it difficult to apply these measures appropriately – i.e. they may fail to target the real culprit! Further still, recent discussions from the UN and rulings from the French courts have confirmed that an adequate broadband connection is as much a human right as access to food, water and shelter (news.bbc.co.uk/1/hi/technology/8102756.stm). Therefore there is a valid argument that interfering with an individual’s internet connection is a violation of their human rights and, in this respect, the ISPs could be treading on murky waters.

Copyright: the framework

The role of Ofcom, as outlined in the report, is an important one and the report sees its responsibility and powers developing and growing in relation to Digital Britain. In conjunction with the report, the Government is undertaking a consultation in relation to copyright infringement which will give Ofcom the power to take action in this area. This is scheduled to take place by the end of August 2009.

The report views that any IP infringement for profit should be treated as “theft”, and as such there should be criminal prosecution for offenders. The report highlights that the copyright framework which governs the UK is now 300 years old, and copyright licensing should be modernised to fit in with Digital Britain and the evolution of what can now be classified as copyright works. It lends support to the Government’s copyright strategy, in conjunction with the Intellectual Property Office (“IPO”), launched in December 2008, which is designed to consult with rights holders to develop the future of copyright protection and move towards a more “strategic vision”. This will be further strengthened by various European Commission proposals which will eventually introduce reform.

An interesting development proposed by the report is in relation to so called “orphan works”. These are works which are still under copyright but have lost their owner, or their owner cannot be identified. There are risks in undertaking any exploitation of such works, as the original owner could turn up and bring with them the threat of infringement claims. The report aims to reduce liability in such cases by allowing the development of commercial schemes which will be set up to allow rights in these orphan works to be obtained without the consent of the missing rights holder. Such schemes will have significant regulation and safeguards, which will run alongside the obtaining of these rights, as set up and monitored by Ofcom in accordance with its new role.

Empowering broadband access

One of the cornerstones of the report is the Universal Service Commitment (USC). Indeed one of the major focuses of the final report is this desire to “empower” every person by making digital services easily and universally available.

The most publicised recommendation made by the report is, of course, in relation to broadband access which is key in relation to the USC. Currently, 11% of homes cannot access 2Mbps or higher broadband, which leaves 2.75 million homes with inferior or non-existent connection (report, p54). It is, of course, a particular problem in rural areas and many would argue that the status of an adequate internet connection is viewed as a human right which should be easily accessible by everyone. The report emphasises the importance of this, and proposes the mechanics behind ensuring that the Chancellor’s 2009 budget pledge, that there will be universal 2Mbps broadband by 2012, will be attained. The way in which this will be achieved is through the development of existing services such as cable, wireless and mobile broadband. This development however will be costly, and in order to raise the significant amounts of finance required, the introduction is proposed of a new levy of 50p a month on each fixed line connection. This levy is intended to create a Next Generation Fund of approximately £175 million on an annual basis, with the fund being administered by Ofcom.

This “broadband tax”, as it has become called, will be used to upgrade and invest in cable, mobile and wireless infrastructure to ensure that Britain has a solid digital foundation.

It is however this portion of the report which has drawn much criticism and from many sources. The first is that 2Mbps is just too slow to make a significant difference, and indeed many would argue is yesterday’s speed. The introduction of fibre optic broadband, having a connection of 10, 20 or even 50Mbps is quite commonplace, which has led to criticism that the report is only making empty recommendations in this area.

It will come as no surprise to hear that the Japanese and the South Koreans have put in place their plans to provide greater access and at a greater broadband speed than that proposed by the report. Not only that, the report fails to acknowledge that a substantial proportion of those individuals who don’t have access to the internet at present, don’t actually want access to it! Furthermore, a portion of this tax will go to update and modernise mobile networks, which will provide funding to operators. There has been comment that major international mobile providers who already have vast resources should not benefit from such funding, which is designed to be an initial investment to get services up to scratch.

It is interesting to note that the Commons Business and Enterprise Committee has, since the report was published, announced that it is to investigate whether the 2Mbps speed is “ambitious enough”, and how fair is the broadband tax. Their report will be published some time after 25 September 2009.

Net neutrality

This is an area which is particularly controversial. With the exception of the commitment to achieve universal internet access by 2012, there is no attempt to move towards net neutrality. So-called net neutrality is where the access is openly available for user control without Government or ISP interference. Where the Government is taking such an active role in making a basic level of service available to users and where there are penalties imposed for illegal file sharing, this has been claimed by some to be the first step in Government regulation of the internet.

The new obligation placed on ISPs to target and reduce file sharing, coupled with the active role of Ofcom is, for many, a worrying prospect. In particular the powers of ISPs to take measures such as bandwidth reduction or protocol/port blocking place restrictions on internet use and take Britain even further away from net neutrality.

Not so brave

The report is unfortunately not the radical brave new world that many had hoped for but, given the findings in the interim report, this has not come as a surprise. It is a wide ranging report, but its 245 pages could never be expected to address all the issues. Whilst there are a number of recommendations which are to be applauded, unfortunately this is all they are. It is perhaps most lacking in the area of creation of rights and obligations.

I would like to acknowledge the assistance of trainees Arlene Wilson and Kirstin Stobo in preparing this article.

Digital Britain: seven objectives

At p3 the report sets out seven objectives which it seeks to achieve, as follows:

1. An analysis of the levels of digital participation, skills and access needed for the digital future, with a plan for increasing participation, and more coherent public structures to deal with it.

2. An analysis of our communications infrastructure capabilities, an identification of the gaps, and recommendations on how to fill them.

3. A statement of ambition for the future growth of our creative industries, proposals for a legal and regulatory framework for intellectual property in a digital world, proposals on skills, and a recognition of the need for investment support and innovation.

4. A restatement of the need for specific market intervention in the UK content market, and what that will demand of the BBC and its role in Digital Britain. What that means for the future of the C4 Corporation. An analysis of the importance of other forms of independent and suitably funded news, and what clarification and changes are needed to the existing framework.

5. An analysis of the skills, research and training markets, and what supply-side issues need addressing for a fully functioning digital economy.

6. A framework for digital security and digital safety at international and national levels, and recognition that in a world of high speed connectivity we need a digital framework, not an analogue one.

7. A review of what all of this means for the Government, and how digital governance in the information age demands new structures, new safeguards, and new data management, access and transparency rules.