Ofcom: Digital Economy Act still needs clarity

Ofcom has said that there are still complex issues that need to be resolved before the Digital Economy Act can be successfully enforced.

Ofcom has said that there are still complex issues to resolve before the Digital Economy Act can be successfully enforced. Photo credit: Jon Yeomans

"Drafting the code itself has chosen to be a very complex task... there are a number of issues that have proven particularly challenging," Campbell Cowie, director of internet policy at Ofcom, told a Westminster e-Forum on Thursday.

The Digital Economy Act includes provisions for blocking entire websites found to be hosting copyright-infringing material, as well as writing letters to internet subscribers to inform them of infringement taking place on their connection. Ofcom subsequently informed the government that the site-blocking plans were unworkable. As a result, the government agreed that it would not bring forward site-blocking regulations at this time. However, rights holders can still have websites blocked via a High Court judgment, effectively rendering the decision moot.

According to Ofcom, some of the key questions revolve around problems of definition, such as what is a subscriber and what is an ISP, and which ISPs should be subject to the code.

"We'd love to be able to provide clear and definitive guidance on how those definitions are to be interpreted in the context of the code. We're bound by legal requirement to recognise the independence of the appeals body in deciding on such matters and context-specific nature of those definitions," Cowie said. "I do appreciate the frustration many of you feel on this issue and we'll provide as much support as we can."

Cowie also brought up other issues, such as ensuring that an appropriate standard of evidence is used to enforce the act — for example, that IP matching technologies are robust enough — and how Ofcom can ensure a suitable appeals system for people accused of infringement.

'Rotten to the core'

Andrew Heaney, executive director of strategy and regulation at TalkTalk, was also at the event and re-affirmed his position that the DEA is "rotten to the core" and that the company will continue to fight the regulation in its current form.

Drafting the code itself has chosen to be a very complex task... there are a number of issues that have proven particularly challenging.

– Campbell Cowie, Ofcom

In its current form, the cost of enforcing the act is a 75/25 split, with the rights holders paying the majority of the cost and ISPs paying one quarter. However, that cost would ultimately be passed on to customers, Heaney said, bringing in to question whether it was right to have a system that ultimately meant that subscribers would be paying to protect the rights of copyright holders.

Heaney also took exception to the appeals process, saying that it was unfair and worked on the basis of guilty until proven innocent, which is exacerbated by the difficulty for customers to actually prove their innocence.

Subscribers accused of downloading copyrighted material have the right to appeal, but would also have to pay an extra £20 to do so, which Heaney described as "adding insult to injury".

Legal alternatives

However, Richard Mollet, chief executive of the Publishers Association, said the regulation would encourage the growth of legal alternatives, but that input is needed from all interested parties.

"We believe the legal models do continue to grow and to grow well... additional revenue will rise. Infringement isn't going to go away, though," Mollet said.

"We need constructive engagement from all quarters and yet again this morning it's really noticeable that the two ISPs that haven't been up on the panel today, Sky and Virgin Media... are working very constructively with rights holders, looking at ways in which we can develop voluntary solutions on things like site blocking and haven't been standing every step of the way in front of the DEA. Surely that must be the way ahead for us all in the wider creative economy?" he added.