DE Act Costs Order: has Ofcom lost its sense of timing?
- Author: Monica Horten
- Published: 04 October 2012
Ofcom, Britain's industry-cuddly communications regulator, is likely to find that its plans for implementing the copyright '3 strikes' scheme in the Digital Economy Act will back-fire sooner rather than later. Two of Britain's largest ISPs have indicated that they cannot meet the timetable set out by Ofcom, and, what's more, they want cash upfront to do it.
The two ISPs, BT and Everything Everywhere (yes, that's its real name) have made their point in a formal response to an Ofcom consultation. Ofcom was seeking views on the Costs Order, a Statutory Instrument that will begin the process of implementing the copyright infringement measures in the DE Act. Officially, it is the Online Infringement of Copyright: Implementation of the Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order 2012.
The consultation questions addressed the project management for a copyright notification system - the first and second of the '3 strikes' in the DE Act. Ofcom has proposed a schedule whereb the first notices will go out on 1 March 2014.
The two ISPs have told Ofcom that its proposed timing of nine months to get the notification systems in place will not be sufficient. Both make it plain that they need a further three to six months as a minimum.
That will mean that the proposed start date of March 2014 is unlikely to be met. System development would have to commence by next January to allow the full amount of time (12-15 months) they say they need, and that is unlikely to happen.
The implementing legislation has to go through Parliament, as well as get approval from the European Commission, before anyone can begin building systems. Ofcom has already put the Costs Order before Parliament, in its haste to meet its own schedule.
However, the Secondary Legislation Scrutiny Committee, which carried out the first Parliamentary examination of the Costs Order, has indicated that it has reservations. The committee has drawn the DE Act Costs Order to the special attention of both the House of Lords and House of Commons. One may reasonably consider that it will be delayed.
Moreover, the ISPs have said that in all likelihood, Ofcom has underestimated the costs of building the necessary systems. The ISPs costs, of which the rights-holders pay 75%, are likely to be considerably higher than Ofcom has suggested. And other, associated costs, such as complaints handling by the ISP (prior to any appeal by the subscriber) have not been fully taken account of.
Not unreasonably, the ISPs want cash upfront from the rights-holders to cover their capital outlay for the system build. Failing that, they want payment for the capital cost to be made in the first month of notice-sending.
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Additional information: According to the Open Rights Group, a discussion of the Digital Economy Act Costs Order that was to have taken place in the British Parliament, has been cancelled. It is not clear to me what status this discussion would have, as the DE Act Costs Order is Secondary Legislation, that in the normal process, would have discussion at all.
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Iptegrity.com is the website of Dr Monica Horten, independent policy advisor: online safety, technology and human rights. Advocating to protect the rights of the majority of law abiding citizens online. Independent expert on the Council of Europe Committee of Experts on online safety and empowerment of content creators and users. Published author, and post-doctoral scholar, with a PhD from the University of Westminster, and a DipM from the Chartered Institute of Marketing. Former telecoms journalist, experienced panelist and Chair, cited in the media eg BBC, iNews, Times, Guardian and Politico.
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