The Hargreaves Review of Intellectual Propert: Where next? - Business, Innovation and Skills Committee Contents


4  Enforcement

Enforcement of copyright

149.  In Professor Hargreaves' view, successful enforcement depends on the quality of the legislative framework:

Get the law into a place where people respect it, where it fits with what most people think is fair and reasonable, get the market working in an open way that is delivering quality services in the way that consumers are entitled to expect, and, in those circumstances, it will be a lot easier to have an enforcement regime around that law that will both command respect and, crucially, from business's point of view, be effective.[134]

150.  Current failures in enforcement were cited by the rights holders who gave evidence to us. Chris Marcich of the Motion Picture Association said:

For example, you will find that, if you do a search for a particular audiovisual work, you will be referred, more often than not, to a long list of illegal sources for the content before you ever get to a legal source.[135]

Richard Mollett took up the argument:

I would agree with Chris that part of the consumer confusion […] is that illegal sites look professional. One of the reasons they do is because they often have advertising down the sides of them. That is why we are asking online advertising providers like Google—and to be fair to them, they are acting on this—to take away the adverts from sites that they know to be infringing, so at least the consumer is not presented with what looks like a professional site. It is one of the ways in which we can get rid of some of that consumer confusion.[136]

151.  While referring back to the need for ready access to legitimate content, John McVay of Creative Coalition Campaign pursued the theme of advertising as a problem:

You will never end all illegal copying. Anyone who suggests that is not living in the real world. The best way to do is to get legitimate services to the market at a broad range of price points for a broad range of uses, and that is what we are seeing emerging across all the content industries. You can get free television; you can get paid download to own; you can get free music. There is a whole range of different business models for the consumers that are delivering high­quality, verifiable legitimate content, without any viruses or problems, under an appropriate licence. The big problem we have, in investing in those services and trying to develop those services, is if we are always competing against free illicit services, which can use advertising.[137]

152.  Jim Killock of Open Rights Group also argued that there was still work to be done on making legitimate content available:

We did a quick study of what film was available in the UK, and we found something like half the UK's top films over the last 20 or 30 years are not available online. We found that most of the content, where it was available for download or streaming, cost more online than it did to buy the physical product.[138]

153.  On the possible solutions, Professor Hargreaves told us that

IPO and DCMS, with Baroness Wilcox and Ed Vaizey in the lead, are looking at a number of ways in which we can tackle online infringement, in particular how we can facilitate industry­led solutions rather than waiting for the big stick of legislation, which does not always necessarily precisely hit the target. One of those areas is certainly engaging with search engines, which tends to mean, very largely, Google, to be perfectly honest with you.[139]

154.  PRS for Music set out its views on the problem and a possible way forward:

It is very clear that, if you put a search term in the Google search engine, you will get, first and foremost, a list of unlicensed sources, and we think that they should be marked as such. We have, as PRS for Music, been working with some of the intermediaries, notably the antivirus companies, to see whether it would be possible to identify sites as being unlicensed in a similar way to their being identified as carrying viruses or other malware. It is technically possible. We think that it would be helpful. We have had some consumer research conducted that suggests that 75%[140] of internet users would welcome it and so we think that it should be done.[141]

155.  Sir Robin Jacob similarly favoured taking a look at methods of enforcement that would work through bringing pressure on large intermediary providers:

Where the banks and the credit card companies get involved, they are all taking money on transactions involving the sale of counterfeit goods. There is a possible target there—I am not saying they should be made a target, but it should be looked at. They would pick their customers more carefully.[142]

156.  We endorse the approach of encouraging intermediate content providers to take more responsibility for the legitimacy of content. This is a way to bring pressure to bear at the right point in the system. We support too the endeavours being made by the Government and the Intellectual Property Office to improve the copyright observance position in relation to advertising and other revenue streams.

THE DIGITAL ECONOMY ACT

157.  The Digital Economy Act 2010 followed the Digital Britain report of 2009. It aimed to facilitate the identification of and action against persistent copyright infringers. Sections 3 to 16 went beyond the recommendations of Digital Britain and allow ISPs to impose "technical measures" to reduce the quality of, or terminate, infringers' internet connections. These provisions have been criticised for incorporating inadequate standards of proof and lack of oversight of rights holders, although unusually the burden of proof on appeal remains against the rights holder. The policy as a whole has been criticised on the basis that levels of lost profit from infringement are not as great as alleged.[143]

158.  Open Rights Group was among those who found the provisions of the Digital Economy Act putting the enforcement burden on intermediary providers of internet content objectionable, but we were not convinced by its Open Rights Group's arguments in this area, particularly in relation to the costs of enforcement letters and customer monitoring.[144] It seems to us that if proportionally managed this system should be a useful method for of achieving greater compliance, but a review following implementation would be a means of confirming this.

159.  A judicial review of the provisions brought by BT and TalkTalk failed at first instance in April 2011 and leave to appeal was subsequently refused[145] clearing the way for the provisions to be brought into force. However, we understand that a number of stages yet remain before implementation is possible and that the notifications system is not likely to be up and running until early 2014.

160.  We applaud the work that is being done by way of informal approaches to intermediaries to discourage pirated content. Furthermore, the recent April 2012 decision of the High Court to insist that internet service providers block file-sharing by pirated content sharing sites is to be welcomed. We encourage the Government to press forward with bringing sections 3 to 16 of the Digital Economy Act fully into force, subject to proper review after implementation.


134   Q 11 Back

135   Q 165 [Marcich] Back

136   Q 165 [Mollett] Back

137   Q 211 Back

138   Q 196 [Killock] Back

139   Q 261 [Brazier] Back

140   Note by witness: Correction: the figure is actually 91% (based on Harris Interactive Research, conducted Sept 2011) Back

141   Q 196 [Ashcroft] Back

142   Q 73 Back

143   LSE report of March 2011: Destruction and copyright protection: regulatory responses to file sharing Back

144   Q 215 Back

145   See: www.guardian.co.uk/technology/2011/jun/21/bt-talk-talk-digital-economy-act Back


 
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© Parliamentary copyright 2012
Prepared 27 June 2012