Posted on behalf of Ruth Walters, Westminster  [log in to unmask]
Colleagues might also like to note that BT and TalkTalk last week requested
a judicial review. 
http://www.guardian.co.uk/technology/2010/jul/08/bt-talktalk-challenge-digit
al-economy-act

Ag
-- 
Antony Gordon
Joint List Owner, iaml-uk-irl
British Library Sound Archive
96 Euston Road
London
NW1 2DB

t: 020 7412 7412
f: 020 7412 7441
e: [log in to unmask]



DIGITAL ECONOMY ACT, 2010 (DEA)
Summary Briefing for The Society of Chief Librarians


This Briefing Note summarises the content of an afternoon Briefing arranged
by the British Library at short notice on 29th June 2010, in response to the
urgent need to address potential risks within the Act as published and the
consultations planned or underway by Ofcom.  (One on the initial code of
obligations http://www.ofcom.org.uk/consult/condocs/copyright-infringement/
closes on the 31st of July and another is due in September).  The DEA
Briefing followed a joint submission on the scale & scope of charging & cost
share in relation to confirmed breaches of copyright through the Internet,
which was submitted on behalf of Œpublic intermediaries¹ (Universities,
Museums, Libraries & Archives, both public & third sector) that provide
Internet access to staff, students or customers.  That joint submission was
circulated to members on Wed 16/06/2010 at 12:47 and a summary of the
submission has been posted on the members section of the SCL website.  There
is also an MLA Briefing
http://www.mla.gov.uk/what/policy_development/briefings/~/media/Files/pdf/20
10/programmes/MLA_digital_economy_act_briefing.ashx on sections 3-16 of the
Act on their website.  The main points of the joint public intermediaries¹
response 
http://www.goscl.com/joint-consultation-response-digital-economy-act/ to the
first Ofcom consultation on cost sharing is on the SCL Website in the
Members Section 

RISKS
The principle risks revolve around the uncertainty of definition of who is
deemed to be a:
€    Communications Provider (as defined in the communications Act 2003,
they are excluded from the DEA) which could potentially include public
libraries as part of the wider Local Authority or as part of a learning grid
for schools & colleges for example
€    Internet Service Provider (ISP) another very broad definition in the
DEA as someone Œwho provides an internet access serviceŒ probably 100% of
public libraries & the issue is whether or not those receiving free access
can be termed Œsubscribers¹ or not.  If they are then the library providing
the access is an ISP.  If the library is charging for the access then they
are definitely an ISP and the customer is a Œsubscriber¹.  There appears to
be no difference whether the service is via a fixed line or WiFi.
€    Subscriber who is deemed to be a Œperson who receives the (Internet)
service under an agreement¹ to do so (this could be verbal or implicit, not
just written) & does not receive it as a communications provider.  If the
formal agreement to receive the service from a third party/commercial ISP is
with the Local Authority through a central procurement rather than the
library service or individual institution then the LA is potentially the ISP
providing individual IP addresses to the various libraries or devices in
libraries so the responsibility of compliance rests with the LA as a whole.
In this scenario a public library could be seen as a subscriber.

Although Ofcom are currently saying that any ISP with less than 400K
subscribers will be out of scope, the expectation is that over time that
qualifying level will significantly reduce.  Also public intermediaries will
probably be regarded as subscribers from the outset.  Broadly the risks are:
€    Additional costs caused by:
o    The requirement to track and log usage to be able to identify alleged
copy right infringing customers with associated software & hardware costs
(in a small unitary authority with c. 115 public terminals across a dozen
sites this is in the order of £45K to £50K purchase & installation + annual
licence fee of c. £4K)
o    Costs of sending three warning Œletters¹ to copyright infringers
following specific legal procedures and informing copyright holders of level
of infringement;
o    Potential significant costs in defending Œmisuse of personal data¹
cases in English or European courts
o    Public intermediaries being viewed as a subscriber by the copyright
holder and therefore falling under the aegis of the act / subject to the
appeals process. (N.B, The copyright holder if it reaches the appeals
process will have to prove actual infringement and that a particular IP
address was a particular ³subscriber² this may mean that a copyright holder
may view a public intermediary as easy to pursue rather than a transient
individual.)
€    Additional administrative burden
o    Identifying who was using which device on which IP address at a given
time when the rights holder indicates an infringement was made
o    Issue of three letters of warning/reprimand to infringer
o    The potential withdrawing of access to Internet for a confirmed
persistent offender (the right of access could be withdrawn to the whole
institution if the institution is regarded as a subscriber/unable to
identify the alleged Œrights infringer¹
€    Potential legal challenge under Data Protection Legislation, if
personal data is stored & used in the tracking down of copyright infringers
without notification to the data subject, with potential for appeals to
European courts costing significant amounts in legal fees.


SUGGESTED ACTIONS
€    Seek understanding of the obligations under the act of your
authority/library service
€    Respond to the Ofcom consultation(s) as a library service
€    Lobby within your authority for a response to be submitted from the
authority.  A template letter is available to download from the members
section of the SCL website.
€    Consider changes of current Acceptable Use Agreements requirements for
customers to agree not to file share/infringe copyright if they are not
already there
€    Add in to recommended Œfavourites¹ on your public PCs links to legal
sites for file sharing of audio/video to divert traffic from illegal sites
€    Block access to illegal file sharing sites through filtration
€    Suggest repeal/clarification of the Act as a response to the
Government¹s Your Freedom consultation website
http://yourfreedom.hmg.gov.uk/ several hundred others have already done so!

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