One of the most debated aspects during the drafting discussion of the Digital Economy Act was the question of who is going to foot the bill for all of the detection and notification of online infringement. This is one of the most problematic issues of the Act, copyright infringers have to be adequately identified, and only then will they receive their first-strike letter. The system is undoubtedly going to cost money, ISPs argued that they should not be the ones paying for the system, as the ones who would benefit would be the content industry. Copyright owners argued that they already pay handsomely for detection and enforcement, and therefore it should be the intermediaries who should pay.
The Department of Business, Innovation and Skills (BIS) conducted a consultation on this question, and has published a report with the findings. These are:
- “The notification costs of ISPs and Ofcom as regulator are to be split 75:25 between copyright owners and ISPs on the basis of the costs of an ISP which is an “efficient operator” as verified by Ofcom (as proposed in the consultation document). The regulator costs also include the costs related to the appeals system.
- There should be no fee for subscribers to appeal against a notification letter. However the Government retains the power to introduce one at a later date should it become clear that a large number of vexatious appeals result.
- The deadline for Ofcom to complete the initial obligations code will be extended by 3 months to reflect the need to notify the cost regulation separately under the Technical Standards Directive.”
I have to say that although the 25% by ISPs may be translated into higher broadband costs, this is a favourable result for consumers. If the music industry has to spend money to get the system going, they may use the powers scarcely. But of course, that assumes that the BPI is capable of rational thought. I sometimes wonder if that is possible.