Laurence Kaye on Digital Media Law

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

DRM: from policeman to accountant

Spare a thought for poor old 'DRM'. It's had so much bad press as well as being the subject of an on the inquiry conducted by the All Party Parliamentary Internet Interest Group (now 'apComms'). Their Report  was published last year.Certainly, the focus of the law in this area is on technical protection measures. (My next post includes an explanation of the law in this area).

So think 'DRM' - digital rights management - and you'll probably think of proprietary technology such as Apple's 'Fairplay' which ties content to a particular platform or device. But things are changing as business models evolve. Some music companies are now beginning to experiment with content delivered free of technical protection measures, whilst other content owners will want to use them in their battle against piracy.

But seeing DRM merely as a set of restrictive technologies is wrong. A broader definition of 'DRM; is “An umbrella term for a range of technologies for managing the buying and selling of intellectual property rights in digital form” (EPS, now part of the Outsell Group). In the 'Web 2.0' sites such as Facebook are becoming platforms for the exchange and delivery of content.

In this environment, machines have to speak to machines - the 'semantic web'. Here, DRM is an enabler. It is about the application of a machine-readable language and grammar to digital content in order to describe the rights that are associated with the intellectual property. It may be 'copy without restrictions'; 'copy three time'; 'store and delete copies from cache after a given period etc.' And it's perfectly possible that these permissions will not be enforced through technical protection measures.

A good example of DRM as enabler is the work being done by 'ACAP'. ACAP (Automated Content Access Protocol) is being developed as an industry standard by the publishing industry, working with search engines and other technical and commercial partners. ACAP will enable the providers of all types of content published on the World Wide Web to communicate permissions information (relating to access and use of that content) in a form that can be automatically recognized and interpreted, so that business partners can systematically comply with the publishers' policies

So we may be seeing DRM leaving the police station - at least from some of the time - and moving into the role of accountant, helping to make sure that the right guy gets paid, who could be anyone from the solo digital photographer or designer through to 'big media'.

Laurie Kaye