The U.K. Digital Economy Act has finally appeared, after years of lobbying for an anti-piracy law by labels trade body the BPI. Chief executive Geoff Taylor talked through what happens next with Billboard.biz - and revealed that the BPI will reluctantly return to suing individual file-sharers again in the period before technical measures potentially kick in around late 2011 or early 2012.
The law was given Royal Assent on April 8, and copyright holders and Internet Service Providers will now draw up a code of practice to be overseen by telecoms regulator Ofcom. Educational letters to suspected copyright infringers should start going out by late 2010.
After several years of lobbying, are you happy with the Digital Economy Act that was passed through parliament in such a rush before the May 6 election?
Geoff Taylor: I think that it was important to get measures for both peer-to-peer [file-sharing] and non peer-to-peer so we're pleased that the act includes both. I think there was plenty of comment about the timetabling of the legislation but ultimately we were just left in a position where an election was called and it had to be dealt with in the way those things were dealt with. But there had been a huge amount of debate and scrutiny of the bill for quite an extended period and we think that it will have a significant effect over time on reducing levels of P2P infringement. And if we can get the regulations implemented on Web site blocking, [it will] potentially help us to deal with some of the sort of egregious download sites in Russia and other major sites that facilitate file-sharing.
The ISP Talk Talk has responded to the legislation by vowing never to disconnect a subscriber, unless there is a court order.
It's interesting that Talk Talk talked about how they will never disconnect anybody. There's nothing in the [Act] that provides for disconnection. So they won't do something they're not going to be asked to do anyway? Well that's very brave of them. Whether or not they are right to object to temporary account suspension as a potential remedy, we don't believe they are in the last resort. Now what is clear is that somebody could only find themselves in that situation if they had ignored multiple warnings and potentially they would already have been subject to a different technical measure, before getting to the possibility of account suspension. So as I say, when they try and portray it as draconian, they are not really representing what is actually in the in the Act.
Are you surprised how united the music industry was on getting these measures through?
I don't think its surprising actually that there is now a relatively high degree of consensus over the need for this, because I think over time the damage this is doing has become more evident. I also think whereas some artists who have already had enormous success have occasionally spoken out and said they are not bothered by it, maybe they can do very well from touring, I think there's an increasing understanding that for younger artists actually getting investment from a record label at an early stage in your career is fundamental to achieving any success and that simply doesn't happen if the money isn't there to invest.
Is it important to have this legislation alongside educational campaigns such as Music Matters?
It's fundamental. We do not believe and we've never believed that legislation is the solution to this problem. We have always believed that the most important thing we can do is create fantastic new convenient services that are attractively priced with great content that have millions of tracks and are easy to use. We believe we have done that. There are 35 or more in the U.K. already, we're committed to developing more of those services. We [also] think its really important to try and re-connect with music fans as to why they love music and why it's precious.
Parliament will have to give further scrutiny to the measures for blocking Web sites, which were added late in the Bill. Are you concerned this part of the Act may be watered down?
I think now in order to deal with the concerns that were being expressed about having sufficient time for scrutiny, government has added some extra procedural steps. I think we are reasonably confident that the argument is very strong that if there are sites which are clearly making available huge amounts of music illegally to U.K. consumers that it is reasonable that ISPs should do something about that if ordered to by a court. And we're comfortable that we can make a strong case to a court that a blocking order is approrpirate. But there are now lots of safeguards and we're happy that there should be safeguards in the process.
The technical measures including bandwidth capping and account suspension can only come in if Ofcom reports there has not been a significant reduction in file-sharing from the writing of letters after one year. But is there a danger that people will simply ignore the threat of just receiving another letter in that one-year interim period?
That's not strictly the case because obviously the second obligation in the [Act] is for the service providers to keep infringer lists, so we will be able to ask the ISPs to give us lists of anonymous numbers of subscribers who we have identified the most number of times, and we will then be able to go to court to get the identities and names of addresses of those individuals and eventually bring legal proceedings, so even at the stage of the initial letters being sent there is the possibility that we will follow up with legal proceedings against the most egregious infringers. But secondly there is then the possibility that government will introduce technical measures [after one year], that the ISPs will potentially throttle bandwidth or whatever it may be, to those people who are not paying attention to the letters."
So there could be individual court actions again?
I should make it clear, we do not wish to solve this problem through court actions. We took a very deliberate decision to move away from that [in 2006] and focus on account holder responsibility and to get ISPs to play a role because we feel that it is much better that an account holder should get information and education before there's any possibility of legal action, and one of the merits of this bill is that it enables that. We would actually much prefer that the problem is tackled through technical measures than through litigation.
Government disagreed with us, regrettably, and decided not to bring the technical measures into effect immediately and has said to us that it expects us to bring legal cases and that it will take that into account when it looks at whether or not to introduce technical measures. So we may well have to bring lawsuits at some level, and that is apparently expected of us by government, it is not something we really want to do because we believe that technical measures would be a better approach. However we are not going to be given that option initially and so it is something we may have to do on some scale.
Is that to show you take file-sharing as a serious threat?
I think the government believes that we ought to enforce our own rights. As I've said, we believe it would be better that there be letters followed by technical measures, and litigation only really reserved for people who have continued despite technical measures. And we weren't able to persuade government that that was what should be done, so we are left with letters as the first response, the possibility of litigation accompanying them, but then the intro of technical measures if that first stage doesn't result in a 70% reduction [in levels of file-sharing].
As I say this is not our favored approach, however government is saying to us that it does expect us to enforce our rights to some degree. I think government has accepted that litigation is not something that is scaleable or can be done on a massive scale. Our focus is very much on the education side of this and trying to steer people towards legal services.
Were these previous actions by BPI quite rare?
We did it back in 2004, we didn't bring a very large number of cases. What that did do at the time was establish very clearly that file-sharing music without permission is illegal. That was an important marker to put down at that time and we believe it did have some effect on containing the growth of illegal file-sharing. But we quickly learned I think that it is not something that you can deploy on a scale that's necessary to deter large numbers of people. We didn't like the fact that we weren't technically able to pick out repeat offenders, it was just not something we were able to see, and what this [Act] allows us to do at least is to target any litigation we might bring on people who have had multiple opportunities to avoid it.
We just believe that education followed by technical measures is a better approach and that solving this at the level of the ISP's account and the ISP's relationship with the customer is a more proportionate and possibly more effective way of dealing with it.
For more on the Digital Economy Act see the new issue of Billboard.