Thursday, April 01, 2010

UK policy developments update


Last week's Budget confirmed that the 50p per month Landline Duty will be implemented on 1 October 2010 and will "raise funds to help the roll-out of Next Generation Access (NGA) super-fast broadband to 90 per cent of the country by 2017."

Concerns continue to be expressed over the Digital Economy Bill as it progresses through the Commons. The FT (Websites face blocks over content) reports that measures to allow ministers to modify copyright law and block websites offering access to copyright-infringing materials have been reintroduced into the bill:
"Under the proposed clauses, the minister would be able to put forward a regulation allowing an injunction to block sites unlawfully offering a “substantial amount” of copyright material without the need for primary legislation. Ministers hope that this would provide sufficient powers to deal with new technologies for sharing music and films online...The proposals would require government to pass a statutory instrument, following a public consultation, before asking ISPs to block infringing sites."
Good coverage from OUT-LAW too. A later FT article (Providers attack net piracy plan) reports continued opposition to these provisons, and the Register makes a good point too:
"Under the new Clause 18, the Minister of the day and Courts would have to satisfy a long list of qualifications. The former would be obliged to consult widely during a 60-day consultation period, and then throw the proposals open to Parliamentary debate and scrutiny, and finally a vote. The injunctions would only apply to sites where most of the material was infringing, and the court would have to consider steps taken to remove infringing material, the impact on "Freedom of expression", and the proportion of the effect of the block on the business or individual. Courts couldn't order costs against the service provider, while copyright holders would also have to demonstrate that they'd provided lawful access to the material that's the subject of their infringement complaint. Hollywood and the record companies are unlikely to be happy with that - since the hottest torrents at any time are frequently pre-release films or albums. And these, by definition, haven't yet been lawfully released."
The FT (Court ruling seen to guard online content) also reports an interesting related case
"In a case brought by a group of film studios including Disney, Twentieth Century Fox, Universal and Warner Bros, Mr Justice Kitchin found that Newzbin, a private online forum, was liable for its members’ copyright infringement when they used the site to download movies and TV shows. Newzbin argued that it was no more responsible for copyright infringement than Google is, but the judge said its knowledge of the downloading meant it shared responsibility."
OUT-LAW suggests that this ruling provides some much-needed clarity to UK copyright law for ISPs and other online service providers:
"The High Court has effectively said that they will only be on the hook for 'authorising' infringement by their users if they fail to put in place some fairly basic safeguards and set their systems up is such a way that they are, to all intents and purposes, apparently sanctioning the infringements...The High Court has told Usenet indexing company Newzbin that it is liable for the copyright infringement of its users, that it did 'authorise' that copying by organising its system to encourage the downloading of films and TV programmes that were protected by copyright...Newzbin had notices telling people not to infringe and a notice and takedown policy, but the Court found that its behaviour didn't match its words. The judge called it "window dressing" and said that the Court would look at the company's behaviour, not its words. Another important factor for the Court was the fact that the enabling copyright infringement seemed to be the company's entire reason for being in business. It claimed to perform other functions, but the Court found that these, too, were flimsy claims not backed up by the actuality of how the service performed."
There's more to this than just the above though. The presiding judge, Mr Justice Kitchin, while granting the film studios' injunction in relation to their own copyright materials (which included the films 27 Dresses, Atonement, 300, Cloverfield, National Treasure: Book of Secrets and Spiderman 3), was not prepared to grant their second injunction, which asked to stop Newzbin from indexing "entries identifying any material posted to or distributed through any Usenet group in infringement of copyright".

An article from ZDnet includes extracts from the judge's ruling (which is available in full here):
"Kitchin turned down this request for a number of reasons. First, the claimants were "seeking an injunction to restrain activities in relation to all binary and all text materials in respect of which they own no rights and about which I have heard little or no evidence," he said. "Second, I do not accept that the defendant has actual knowledge of other persons using its service to infringe all such rights," Kitchin said. "Therefore I am not persuaded I have the jurisdiction to grant such an injunction in any event. Third, the rights of all other rights holders are wholly undefined and consequently the scope of the injunction would be very uncertain." Kitchin concluded by saying injunctions issued under 97a should only stop a defendant from violating copyrights of films owned by claimants and could not extend any further."
It's very interesting that the judge's statement echoes many of the concerns expressed about the Digital Economy Bill - could this set a precedent perhaps, for more measured consideration and implementation of some of the bill's more contentious aspects?

Returning to more broadband-specific developments, the FT (Ofcom adopts benign stance over BT) reports that Ofcom is proposing a benign regulatory regime for BT in relation to its recent announcements about opening up its next generation infrastructure to other operators:
"In a key concession to BT, Ofcom proposed that the company should have the freedom to set the price of its wholesale products...Ofcom is also giving Sky and Talk Talk the chance to build their own super-fast broadband networks by proposing they should be able to insert fibre into BT's ducts. If they were to roll out their own networks, some analysts say BT could struggle to secure a return on its £1.5bn investment. However, Ofcom said BT's rivals were showing greater interest in using its wholesale fibre products than rolling out their own high- speed networks. Robin Bienenstock, analyst at Bernstein, said BT "appears to have fared extremely well" from Ofcom's deliberations and expressed doubts that Talk Talk had the resources to build its own fibre network."
More news from Ofcom this week, in relation to improvements to its broadband speeds code of practice, to address the fact that ISPs are meeting some aspects of the code but are falling short in others. For example, some purchasers are not being informed that their actual speeds are likely to be below their maximum line speeds as part of the sales process. Ofcom's research (which used a mystery shopping approach) also showed that shoppers often received a wide variety of different estimates of the maximum line speed from different ISPs for the same line. The intention is to ensure more consistent and accurate information for purchasers.

Finally, not UK specific but interesting all the same: a media release from Ericsson reports that in December 2009 data traffic exceeded the volume of voice calls across the world's wireless networks for the first time:
"Ericsson's findings show that data traffic globally grew 280% during each of the last two years, and is forecast to double annually over the next five years. The crossover occurred at approximately 140,000 Terabytes per month in both voice and data traffic.  The data traffic increase is contributing to revenue growth for operators when more and more consumers use data traffic generating devices such as Smartphones and PCs. During the same period, Ericsson measurements show that traffic in 3G networks surpassed that of 2G networks."
This was also reported by the FT (Data traffic outstrips mobile voice calls).

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