Original article: European regulators step back from website blocking measures
Regulators backtrack on Website blocking
As Ovum’s recent research shows, the most common approach so far is to employ a “three strikes” procedure against end users in collaboration with ISPs. Having listened to the voice of content providers, policy makers are now taking into account the interests of other players in the industry – namely, ISPs and website owners. The UK government’s intention to reform the Intellectual Property framework also signals that it is time for a whole new approach to the issue. AGCOM (which is also in the process of approving rules against online copyright infringement) and other regulators should follow the UK example to avoid being left behind in such a fast-moving area.
Website blocking reconsidered
Some European regulators are reconsidering their approach to tackling online piracy. The UK government’s recent decision not to proceed with website blocking provisions contained in the Digital Economy Act (DEA) signals a shift in the policy against illegal file sharing. Similarly, the Italian regulator AGCOM reviewed its proposal on the same matter, launching a new consultation in July, following [one in] December 2010.
As Ovum’s recently published research on regulatory measures against illegal file sharing shows, policy makers and regulators are taking action to tackle the issue by means of new rules which involve a higher degree of collaboration with ISPs.
Acts such as the HADOPI Law in France, or the DEA in the UK, have seen the “three strikes” approach gaining momentum as an effective means of discouraging users from illicit use of copyrighted content. However, having proposed the introduction of provisions to block websites offering unauthorized content, some regulators and policy makers are taking a step back. The likely reason for this change in policy is to be found in the willingness not to place an excessive burden on ISPs, end users, and website owners, alongside the acknowledgement that a new framework for intellectual property needs to be implemented.
While the “mere conduit” argument is generally losing strength due to the need to monitor end user’s behavior, we have recently seen two cases that suggest governments are unlikely to go any further in placing obligations on ISPs.
UK and Italy back track
In the UK, The Department for Culture, Media and Sport (DCMS) announced in August that it would not go ahead with the provisions on website blocking contained in the Digital Economy Act. The announcement came on the grounds of a report issued by Ofcom, which argued that measures aiming to block Internet sites would likely be ineffective and easy to circumvent, and the most effective blocking techniques such as deep packet inspection (DPI) would be costly and technically difficult to implement.
Ofcom added that the provisions in the DEA are unlikely to provide copyright owners with any further instruments than those already present in the Copyright Designs and Patents Act, and that the Act lacks the right balance between the exigencies of copyright owners for a timely implementation of blocks and a flexible approach taking into account the legitimate interests of site owners, service providers, and end users.
Italian regulator AGCOM recently provided a similar example. Having consulted on a draft regulation for copyright protection online, which included the possibility to obtain the blocking or blacklisting of websites found to be solely aimed at the illegal diffusion of copyrighted content, the NRA launched a new consultation in July on a new draft stating that only the “selective removal” of unauthorized content can be carried out by the authority.
The proposed measures are currently undergoing consultation, which means that we can’t at present say whether the regulator will end up passing a less restrictive set of rules. AGCOM faced heavy criticism over risks of censorship that the initial proposal entailed. However, given the responses provided to the first consultation, the reason behind the new approach is likely to be found in the unfeasibility of web blocking measures.
Italy should follow UK
Given AGCOM’s intention to address the issue of copyright protection online, the regulator should consider following an approach similar to the one taken in the UK. Measures aimed at tackling end user’s illegal behavior should be accompanied by a review of the IP framework, like the one carried out by the Intellectual Property Office (IPO) on which the UK government has decided to base the future reform of IP rules.
A more flexible approach to copyright, in line with the characteristics of the digital age, is more likely to provide the right balance between the need to guarantee the flow of knowledge and information and the necessity to protect the rights of the creative industries.
The announcement from the DCMS that the government will endorse the recommendations in the Hargreaves Report on intellectual property, which calls for less strict copyright regulation, can be seen as a further sign that it intends to strike a balance between different exigencies. Having met the requests of copyright owners against illegal download or sharing of copyrighted content, which will force ISPs into a thorough monitoring of their customer’s online activity, the UK policy makers seem to be paying attention to the concerns raised by the other stakeholders.
Having already placed on ISPs the burden of a system of notifications to potential infringers (even though ISPs won’t have to pay the costs of that following the outcome of the Judicial Review of the DEA), law makers have avoided affecting their businesses with further monitoring obligations.