Outline, online

Because the Digital Economy Bill doesn't get into the nitty-gritty of how its copyright clauses are supposed to work on an everyday basis - in particular clauses 4 and 5 - an "underpinning code" is needed in order to outline the actions and roles that ISPs and the rights holders concerned can, and are supposed to, take. With this new document, the Government's trying to get the ball rolling towards the goal of establishing such a code; the document therefore has two main functions:-

To act as a rough template to help industry develop its own code (in an attempt to make this happen more quickly);

To highlight to the Select Committee what the Government thinks the code should cover.

While the .gov would prefer it to be "industry and other stakeholders" that draws up the final underpinning code (and hopes "industry" seeks input from consumer groups somewhere along the way), the time available for them to do so is "limited, not least if the obligations are to be brought into effect with minimal delay." If they fail to produce "an acceptable code" within that "limited" timescale, the responsibility will be passed on to Ofcom to do it for them. In either case the media regulator will consult on, and impose, the code.

Yes CIR

The 'Outline of Initial Obligations Code' makes great use of the acronym CIR, which stands for Copyright Infringement Report. It'll be up to the code who exactly will be able to instigate CIRs; the outline suggests that this action will be available only to the rights holder concerned. However, ISPs may be expected to act as middlemen (sending notifications to suspected pirates on the basis of CIRs) while at the same time keeping lists of persistent offenders.

Then there's the sticky issue of what standard of evidence will be required before CIRs are issued. (Of course, campaigners against the Government's anti-piracy plans repeatedly highlight the potential flaws of relying on IP addresses in order to isolate who's the perpetrator of any copyright infringement.) The document declares that "copyright owners do not want the bad publicity and damage that significant false accusations would result in" - which is probably a fair point - and points out that we consumer peasants are worried we might get accused of something we didn't do, honest like gov.

The point to make here is that, because it should be "industry and other stakeholders" that are drawing up the code, perhaps we there won't be the need to rely on fallible IP addresses after all. So what can we expect instead? Quoting the document:-

As a minimum we expect the code would require that the method of detection was via a robust and reputable technology (which was open to independent/Ofcom scrutiny), that a copy of the copyright material (or significant part thereof) was captured as part of the detection process, the copyright owner had verified that it had reason to believe that the usage identified was an infringement, the uploading IP address was captured and that an exact date/time stamp was taken.

(Ah, yes, why didn't I think of that? They can use "robust and reputable technology." Suggestions as to what that actually might mean on a postcard, please. Meanwhile, the reasons why the focus is on uploading are detailed in a separate document, available here.)

Crime doesn't pay, so who does?

We already know that ISPs think that policing pirates is going to cost "hundreds of millions of pounds," even though the BPI thinks it'll be significantly cheaper. For now, the Government seems to be coming down on the side of the Internet Service Providers; it wants the rights owners to come up with "credible estimates" as to how many CIRs are going to be issued so the ISPs can henceforth budget. From the document:-

Government has made it clear to all stakeholders throughout that we expect significant volumes of notifications (and therefore significant numbers of CIRs) to be generated ... Handling such volumes of CIRs and notifications is likely to require significant investment by ISPs, potentially in both technical processing systems and staff.

The outline also indicates that ISPs may be able to reject the overtures of a rights holder on the grounds that it isn't abiding by the finalised code - thereby rejecting the CIR in the process. (It's been suggested Ofcom, or a separate body, may ultimately have to adjudicate to decide who's right and wrong.) But just how many notifications will be sent by an ISP to a suspected copyright criminal when a CIR is legitimately handed to it? While the Government is at pains to show its long-standing, letter-based approach does work, the dreaded three-strikes system could be very much in vogue in the future:-

Research and real-world examples are limited but it is clear that multiple letters do result in greater numbers of individuals stopping infringing. Their other main advantages are it minimises the risk that notification letters do not reach the subscriber, and that it strengthens the case for copyright owners in the event of any court action as it demonstrates the subscriber had multiple warnings to change their behaviour. The downside is the additional cost and the risk that too many warnings without any consequences reduce the credibility of any deterrent. The BIS consultation on P2P file-sharing (June 2009) found that most respondents felt three letters an appropriate number.

So now the ball's in the court of the "industry and stakeholders" to come up with a code. However, given the scale of the dispute between ISPs and rights holders to date, it appears we might have to wait for Ofcom to intervene. Either way, given the need for consultation after the code has been drafted, it could take quite some time - and the keeps clock ticking towards the next election.