Friday 16 May 2014

Combating online piracy: new UK copyright alert system (VCAP) is imminent

Enforcement of copyright in online infringements is a major headache in terms of cost-effectiveness for the reason that, in the absence of statutory damages, the degree of loss to the copyright owner is frequently low in any given case. This is also why collective efforts at tackling infringement are often preferred to individual ones, and those which are voluntary and seek to avoid ending up in court are preferred to those which depend upon litigation as a first step.  In this guest piece, Bristows associate Tom Ohta explains a development in the UK which is designed both to provide an educative function and to ease the financial burden of copyright owners.  He writes:
Combating online piracy: new UK copyright alert system (VCAP) is imminent

A deal is about to be struck between the entertainment industry and major internet service providers to put in place a Voluntary Copyright Alert Programme (VCAP) designed to combat copyright piracy in the UK. The actual terms of the deal have not yet been made public. However, it appears from a draft leaked to the BBC that the entertainment industry’s interests are represented by the BPI and the Motion Picture Association and that of the internet service providers by BT, Sky, TalkTalk and Virgin.

VCAP was first discussed publicly by the Government’s Communications Minister, Ed Vaizey, earlier this year at a Westminster Hall debate – although commentators indicate that this industry-led initiative has been rumbling on for some four years now. It appears the private agreement between the BPI/MPA and the ISPs which underlies VCAP is not in final form and is certainly not in the public domain yet. However, the draft leaked to the BBC suggests that the key aspects of VCAP are as follows:

·         The rights holder (i.e. the BPI or MPA) identify particular IP addresses linked to infringing activity (e.g. by monitoring BitTorrent sites) and pass the IP address details to the ISP responsible for that IP address in a so-called ‘Copyright Infringement Report’ (or CIR).
·         The ISP then matches the IP address to a particular customer account and sends an alert to the customer about its behaviour, either in a physical letter or by email.
·         A maximum of four alerts may be sent to any given customer, i.e. VCAP is a 4-stage alert system. With each stage, the language used will ‘escalate in severity’, but will not contain threats or mention any consequences for the accused users.
·         Significantly, VCAP does not require ISPs to apply any punitive sanctions (such as reducing internet speeds or terminating internet access). In this way, VCAP will take a soft-hammer approach by being solely educational in its approach and not enforcing punitive sanctions on repeat infringers.
·         Between the ISPs, the total number of alerts that can be sent out per year will be capped at 2.5 million.
·         The BPI & MPA will receive a monthly breakdown of how many alerts have been sent out, though the identities of the customers will not be disclosed.
·         A record of which customer accounts have received alerts will be kept on file by each ISP for up to one year. 
·         The BPI & MPA will pay each ISP £750,000 towards set-up costs, plus an additional £75,000 annually for ongoing maintenance.
·         VCAP is intended to run for three years with regular reviews on its effectiveness.

The lack of a punitive component to VCAP is an issue that has attracted controversy and debate. VCAP can be compared to other countries such as France, New Zealand and South Korea where legislated ‘graduated response’ systems to combat online piracy are based on a ‘three strikes and you’re out’ policy. In other words, there is a series of escalating sanctions against end-users linked to infringing activity, with the third ‘strike’ potentially leading to the temporary or permanent disconnection from the internet. In the US, there is an industry-led voluntary ‘Copyright Alert System’ in place which incorporates punitive sanctions into its six-strike system, such as drastic reductions to internet speed and, ultimately, a temporary suspension of internet access.

Whilst the lack of punitive sanctions in VCAP has attracted controversy, it is arguable that graduated response systems are not designed to punish, but instead are a means of informing end-users about legitimate sources of online content and changing behaviour. Even in countries where punitive sanctions are available in principle, they are very rarely invoked in practice. Moreover, the decision not to incorporate punitive sanctions into VCAP such as suspending internet access may have reduced the risk of the legal basis of VCAP being challenged in the courts on the basis that it disproportionately restricts the fundamental right to access and impart information – perhaps a lesson learned from the issues encountered by the French government with its controversial HADOPI law.

No doubt there will be further vigorous debate over VCAP in the coming weeks – watch this space.
For Tom Ohta’s 15-minute crash course on private graduated response systems, including how they work in the US and in Ireland – see (recording from the IPKat’s #HappyKat event on 1 April 2014 – see further here).   

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