Digital Economy Act/Ofcom/Minutes

From Pirate Party UK Wiki

Notes for meeting with OFCOM 2010-06-10

Author: Peter Brett

Date: 2010-06-11

Attending

Will Tovey (PPUK; DEA Team Leader)

Peter Brett (PPUK; Campaigns Manager)

Chris Monteiro (PPUK; London RAO)

Campbell Cowie (OFCOM; responsible for OFCOM's implementation of DEA obligations w.r.t. copyright infringement)

Helen Barker (OFCOM; Government and Parliamentary business team)

Meeting discussions

OFCOM stressed that team very much still working on Initial Obligations Code and still interested in any feedback. Need for feedback as they go - the sooner the better.

PPUK asked about CA 124E (1)(k) ("...provisions of the code are proportionate to what they are intended to achieve"), and what OFCOM are intending to achieve with their draft Code. OFCOM answered that it is the role of the Government to determine what the aims of the DEA provisions are.

PPUK asked whether any estimates of expected CIR volumes were available. No OFCOM estimates yet; some figures available from NIRA (sp?) and Smelt Consulting (sp?). OFCOM mentioned that issues regarding costs and cost sharing between ISPs and COs are related, and pointed to BIS consultation.

OFCOM not *hoping* that ISPs and COs set up bilateral agreements beyond the scope of DEA; noted that such agreements exist, but nothing to do with OFCOM.

PPUK asked about reports to Government on levels of infringement, and particularly about what metrics to be used when estimating levels. OFCOM replied that this is ongoing work; existing studies being examined. OFCOM's existing inhouse expertise in consumer research emphasised. Metrics likely to be combination of direct consumer research (e.g. surveys) and technical measurements. Data from third parties (e.g. PPUK) welcomed, subject to review of underlying methodology. OFCOM aware of European projects/reports, but consider them of limited interest due to emphasis on counterfeiting. Further emphasis that reporting will be based on OFCOM inhouse expertise.

PPUK note 400,000 user cutoff on ISP inclusion in initial obligations. Who will be excluded? OFCOM explained that eventually inclusion in obligations subject to CIR volumes, but initially no such data available; proposed approach way to "bootstrap" Code, and then increase subtlety once CIR stats start coming in. Stated that not possible to remove ISPs from scope once included. DEA intended to produce "mass-market effects"; concentrating on largest ISPs best way to achieve this. University networks/students not considered high priority due to existing JANET measures related to uni networks. Government is clear that DEA obligations eventually intended to cover *all* ISPs (inc. cafes/hotels/etc). OFCOM's solution is "pragmatic".

ISPs need to collect "the relevant data" to comply with obligations. What is the relevant data? No clear answer from OFCOM. Who will need to collect it? OFCOM will serve notice to those to be brought within scope of Code. OFCOM hopes that ISPs will implement measures to avoid being brought within scope, and notes that some ISPs already are. OFCOM unwilling to discuss examples of such measures.

Wireless network: how are subscribers counted? OFCOM stated that with open wireless, "provider is a subscriber." Determination will depend on what exactly is considered to constitute a subscriber agreement for a wireless network, and whether operator has taken "reasonable steps" to prevent infringement on network. OFCOM unwilling to provide examples of what "reasonable steps" might constitute, saying that ISPs provide information on "reasonable steps" to subscribers who with to operate such networks as part of "standard commercial terms". When pressed by PPUK, example of blocking P2P given as an example of such a "reasonable step". Highlighted that implementation of "reasonable" measures does not remove responsibility for copyright infringement on wireless network.

Query about content of CIRs, and in particular requirement of inclusion of "title of relevant work". OFCOM stated that subscriber should receive sufficient information to be able to challenge CIR in appeals system. But also emphasised that OFCOM will not "dictate" how appeals system should operate. PPUK asked for examples of cases where info in CIRs has been accepted as evidence in court, as recent searches for relevant cases were unsuccessful. OFCOM assurance that there are *hundreds* of such cases every year. PPUK noted their surprise at this, but will do further research.

PPUK asked whether annual quality assurance (QA) reports from ISPs and COs will be publicly available. Answer: no, not available, to protect "commercial confidentiality". PPUK sceptical of secret evidence gathering techniques, due to impossibility of third-party review and criticism. OFCOM argued that COs and ISPs would hide data/information if QA reports published, and hoped that not publishing would ensure candidity. With regard to QA, PPUK pointed out that process highly critical as subscribers may need to mount defence against allegations in civil court long time after original CIR notification, so evidentiary value of CIRs must be high. OFCOM agreed that Code must be as robust as possible. PPUK suggested that OFCOM consider publishing an annual summary report of ISP and CO QA process -- advantages of partial public transparency of QA but protecting commercially sensitive info.

OFCOM emphasised that all CIRs do is generat a CIL, and that this "protects alleged casual infringers" by helping COs identify heavy infringers for civil court actions.

OFCOM considers duty of reporting to Government more important part of DEA obligations than Code. Strongly recommended that PPUK investigates.

Discussion of information packs to be provided by ISPs alongside CIR notifications. OFCOM will not publish rigid template. PPUK concerned that, despite intent, info packs may be perceived as "commercial advertising backed up by legal threats". OFCOM will "encourage ISPs to work with consumer organisations", and has the power to mandate changes to info packs and notifications if there are problems.

CIR notification thresholds to be time-based. PPUK queried potential for repercussion-free copyright infringement to occur during 10-day to 1-month window after CIR filed by CO. OFCOM: all CIRs will be logged even between e.g. first & second notification letters. PPUK concerned that subscribers may think that only one CIR had been received when there might have been many more. OFCOM says notification letters must contain info on numbers of CIRs received. PPUK not convinced that this provides clear enough info to subscriber as to what allegations have been made against them. OFCOM pointed to ISP requirement to make CIR info available to subscribers. PPUK suggested OFCOM provide guidelines to ISPs on how best to make this info available; OFCOM doesn't believe this necessary but emphasised ability to mandate changes if necessary.

PPUK concerned by panic reaction from subscribers receiving or worried about receiving CIR notifications (example of subscriber banning family from using P2P when this has legitimate uses e.g. Treasury data released using BitTorrent). OFCOM doesn't expect such reactions despite PPUK examples; blames hostile media coverage. PPUK suggested OFCOM should be doing more to counter this, e.g. easy-to-find plain English info on OFCOM website.

OFCOM also complained that media say that DEA will effectively shut down open access WiFi. Discussion followed about whether Code provisions would make it practically if not actually impossible to operate open access WiFi. PPUK suggested that there is great uncertainty and confusion about requirements to stay within the law; OFCOM disagreed. OFCOM thinks third parties (e.g. PPUK) should take a greater role in providing information and support for open access WiFi operators.

PPUK asked whether OFCOM had requested additional time from the Secretary of State for drawing up the Code under CA 124D(2)(b) OFCOM has not, as they see no need, but mentioned that ISPs/COs/other organisations can write to the Minister to ask for OFCOM to be granted additional time.

Closing remarks: PPUK mentioned importance of avoiding "chilling effects" on new business models or communications protocols due to DEA provision; OFCOM agreed, and re-iterated importance of OFCOM's annual reporting duty in providing an opportunity for OFCOM to highlight any such problems.