The Government's warning to ISP's

The Government today published a strategies paper for the creative industry, 'Creative Britain: New Talents for the New Economy,' which signals a shift in the way the Government will approach the fostering and protecting of intellectual property - and in particular the role of ISPs in relation to copyright infringement. We've summarised some of its key provisions at the end of this post.

The paper as a whole is wide ranging and details the Government's proactive plans to foster creative talent with the aim of "enhancing the international competitive position of the UK's creative industries." The Government intends to achieve this with a two-pronged approach of:

1. fostering creative growth through proposed initiatives such as creative apprenticeships and 'find your talent' and talent pathways' schemes;
2. safeguarding the resulting creative content by stamping out online copyright infringement.

The Government has made it clear that it sees the current liability-free position of ISP's as a threat to this creative content. It is seeking to reposition ISP's as potential guardians of this creative content instead, and has issued the ultimatum that if the ISP's fail to self-regulate adequately, the Government will step in and legislate.   

Culture Secretary, Andy Burnham, has stated that "the Government has no burning desire to legislate" but that the paper signals a "change of tone from the Government." In other words, the Government is happy for ISP's to agree industry self-regulatory measures but this must be done sooner rather than later, and must be effective enough to obviate the need for legislation. If not, the Government is likely to include provisions for ISP's assuming greater responsibility in the anti-piracy legislation which is proposed for consultation in Spring 2008 and implementation in April 2009.

Commitment 15 of the paper clearly sets out the Government's stance:

"We will consult on legislation that would require internet service providers and rights holders to co-operate in taking action on illegal file sharing - with a view to implementing legislation by April 2009.The Government recognises the value of the current discussions between internet service providers (ISPs) and rights-holders; we would encourage the adoption of voluntary or commercial agreements between the ISPs and all relevant sectors. While a voluntary industry agreement remains our preferred option, we have made clear that we will not hesitate to legislate in this area if required. To that end, we will consult on the form and content of regulatory arrangements in 2008 with a view to implementing legislation by April 2009."

As we have noted in previous posts, the question of whether ISPs should assume greater responsibility for the content they provide raises complex issues concerning potentially conflicting legislation, such as data protection laws (see Promusicae v Telefonica), and technological measures, such as filtering technology (see SABAM v Scarlet). But the bottom line is that data protection law will not be an insuperable barrier to ISP's taking greater responsibility for carrying or hosting infringing content. 

It looks like, one way or another, the debate over ISP liability will be resolved by the end of next year.

Meanwhile, back to a summary of the key provisions of the Government's action plan for a more 'Creative Britain', which include:

• 5,000 apprenticeships to help people from all backgrounds make the most of their creative skills (the Government is looking to trial wage subsidies for small employers and financial incentives for larger employers)
• an annual event - the World Creative Business Conference - to bring together world leaders in the creative and financial sectors
• the development of 5 new 'Centres of Excellence' in creative skills
• exploring the creation of a 14-25 academic hub for the creative industries to bring schools, art colleges and universities together.

Laurie Kaye and Yasmin Joomraty