Culture, Media and Sport CommitteeSupplementary written evidence submitted by the Open Rights Group

This is a short supplementary note to the Culture, Media and Sport Committee. It follows the evidence Open Rights Group gave in person on Tuesday 22 January 2013.

We suggested in our written evidence that the number of letters that may be sent under the Digital Economy Act could be 2.33 million. In this short note we outline the origin of this figure, as it may not have become totally clear through the line of questioning pursued in the Committee hearing.

The figure was mentioned in our written evidence to the Committee in a section summarising our response to Ofcom’s consultation on the Digital Economy Act Sharing of Costs Order. A link to the full response was given in the submission to the Committee.

In the full submission we “show our working”, producing a rough calculation of how many letters might be sent. The calculation made in our response to Ofcom is below. Our full submission to Ofcom is available from our website.1 Quotations in the below excerpt are from Ofcom’s consultation document, which is available from Ofcom’s website.2

“Letter volume:

1.‘CIR estimates were requested to cover a wide range of potential volumes—from 10,000 to 200,000 per month (120,000–2.4 million pa) for each of the six ISPs’ (6.13, page 31).

2.‘A “base case assumption” of 100,000 CIRs per month (1.2 million pa) was made’.

3.‘Ofcom’s continuing discussion with copyright owners about the likely level of demand for CIRs now suggests that it is possible that monthly CIR volumes at the smallest of the qualifying ISPs (presumed to be O2 and Everything Everywhere—(Table of ISP sizes and of CIR reimbursement under flat fee, 6.51, Page 38)) may be below 10,000 per month, possibly as low as 2,500 per month’ (6.20, page 32).

4.Assuming the ‘base case assumption’ of 100,000 CIRs per month applies to the remaining top four ISPs, there will be approximately 405,000 [(2,500x2) + (100,000x4)] CIRs issued in total each month, or 4.86 million per year.

5.Ofcom state that, based upon evidence from the French Haute Autorité pour la diffusion des œuvreset la protection des droits sur internet (HADOPI), a reasonable estimate of the CIR-to-letter ratio (CIRs that trigger a warning letter to be sent to the subscriber) is 48% (7.54, page 50).

6.The other (estimated) 52% of CIRs will not trigger notification either because the alleged infringement occurred during a ‘grace period’ for that subscriber (42%), or because the IP address could not be matched to a subscriber (10%).

7.This means that, of the 4.86 million CIRs estimated to be issued in this first year, 2,332,800 CIRs first class letters may be sent to customers.

8.Approximately 165,628, or 7.1%, of these letters will be delivered late (Assuming 7.1% of first class post delivered late, as was the case between April and June 2012—see this Telegraph article3). No figures are available as to how many will be lost, as Royal Mail do not publish this for specific classes of letter.”

This is designed as a way of indicating how many letters may arrive late. This is helpful, for example, for the debate about the time subscribers will have to appeal following the receipt of a letter under the Digital Economy Act. Ofcom proposed the time limit should be 20 days (see page 74 of Ofcom’s “Initial Obligations Code” consultation4), and we wished to ensure that rates of postal delays and losses be taken into account.

We hope this serves to clarify the provenance of this figure and the context in which it was used.

February 2013