Memorandum submitted by Internet Services
Providers' Association (ISPA)
ISPA is the trade association for companies
involved in the provision of Internet Services in the UK. ISPA
was founded in 1995, and seeks to actively represent and promote
the interests of businesses involved in all aspects of the UK
Internet industry. ISPA currently has over 170 members of varying
size, representing around 95% of the UK Internet access market
by volume. A full list of our members can be found at http://www.ispa.org.uk/cgi-bin/member_list.cgi.
ISPA gave oral evidence to the Committee's inquiry
last year, but would like to take this opportunity to contribute
some additional comments in light of the recent publication of
the Gowers Review on Intellectual Property.
The Gowers Review was successful in creating
a backdrop for a wide ranging industry discussion on intellectual
property and highlighted the challenges facing content and media
owners alike as we transition away from traditional media and
adjust to new and innovative business models.
Many ISPs have developed dedicated processes
for receiving and handling notices from rights holders about hosted
content which is suspected of infringing copyright. On the whole,
the operational relationship between ISPs and rights holders is
constructive. Difficulties that do arise are not from any lack
of respect by ISPs for the principle of copyright. They arise
mostly as a result of ISPs being put in a position where they
are forced to determine whether an infringement claim is valid,
and in doing so, to bypass judicial safeguards on this issue as
well as safeguards which oblige ISPs to maintain confidentiality
and security of content that their systems convey and which require
rights holders to complete specific legal process to obtain personal
data which would allow them to identify an infringer.
As an organisation, ISPA has promoted a healthy
debate on these matters which reflects the ongoing commitment
of ISPA's members to constructive engagement with rights holders.
In January 2005, ISPA's annual Parliamentary Advisory Forum focused
on this area considering the changing landscape surrounding content
online. The last ISPA Legal Forum was convened to discuss the
Gowers Review and included representatives from both ISPs and
right holders. ISPA is committed to working together with rights
owners and early discussions with various groups, including the
Motion Picture Association (MPA), have signalled the start of
positive co-operation between rights holders and ISPs. This will
continue to be progressed through 2007.
We feel, however, that the Gowers Review overlooked
two crucial issues.
First, it omitted to comment on the importance
of the balance of rights and responsibilities between different
players in the value chain. The Copyright Directive and Electronic
Commerce Directive both strike an appropriate but delicate balance
as to where responsibility for particular actions lies in the
value chain. It is important to recognise that this framework
addresses a wide range of online liabilities, of which copyright
is just one. It is therefore important that we preserve this and
address the specific challenges we face, rather than undermine
the legal principles on which the framework is based.
Second, the Review reinforced misconceptions
which have hampered objective debate on how to tackle the genuine
challenges facing rights holders in the digital age. ISPs are
often characterised as the "gatekeepers" of the Internet[76]
who could, if only they tried harder, bring an end to online copyright
infringement. While ISPA agrees that ISPs have a role to play
in the value chain, they do not "hold the key" to reducing
online copyright infringements. There are many actors involved
including enforcement bodies, the general public and rights holders
themselves.
It is important that co-operation between ISPs
and rights holders leads to constructive solutions that do not
alienate consumers and do not lock-down innovation and growth
in the digital age (for example, by creating potentially anti-competitive
effects). In recognition of consumer demand, established rights
holders, and not just new players, are now embracing the use of
the Internet (including peer-to-peer technologies) to provide
cost effective distribution and promotion of on-line services
such as music and film. We would expect the progress made so far
to be maintained and built upon for the future.
It is equally important, however, that we do
not over-simplify or, worse, trivialise the complexities of the
challenge we face. The debate continues to mature since the adoption
of the Copyright Directive alongside growing familiarity on all
sides with new technologies and experimentation with new business
models. We have a great deal of knowledge and experience to draw
on as we move forward, but the complexity remains. So, we must
also be careful that we do not have unrealistic expectations of
the dialogue we are engaged in.
ISPA is glad that the stage has now been reached
where the Internet is being seen by content rights holders more
as an opportunity than a threat and hopes that further co-operation
can continue this trend. We remain committed to strengthening
relationships and smoothing processes where we can work within
the current framework.
April 2007
76 See IFPI Digital Music Report 2007. Back
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