Just as the Bahamas and Panama provide a safe haven for tax evasion, the UK will provide a safe haven for copyright pirates … until at least 2015.
The Ministry of Fun has confirmed that notification provisions - written warnings for downloading stuff illegally, in other words - in the 2010 Digital Economy Act will not be enacted for two years, pushing it out beyond the next General Election.
The relief from garden sheds will be heard around the country. But why the delays? The Department for Culture Media and Sport told us:
"That’s how long we think it will take to implement the mass notification system in the DEA. We’re currently making technical changes to the cost-sharing statutory instrument. These changes will not impact on the overall effect of the legislation."
The Digital Economy Act [here] was passed by a majority of 142 with support from both the Labour and Conservative front benches. It followed on from the failure of ISPs and copyright industries to make any progress with a voluntary alternative to legislation, which they'd agreed to do in a Memorandum of Understanding (MoU) signed in 2008.
The act obliges ISPs to notify infringers of their infringements, and charges regulator Ofcom to monitor the situation and report annually. It also empowered the Ministry of Fun to order “technical measures” against serial scofflaws at some future date, and a new body to adjudicate subscriber appeals.
The precise nature of the technical measures would be be agreed by a Parliamentary vote, and no measures could implemented before a year of notifications had elapsed, with their effect being measured throughout.
The “graduated response” scheme was devised as an alternative to earlier, ham-fisted attempts at deterring infringement, involving random civil lawsuits against individual subscribers, typically based on the contents of a shared folder. It made no distinction between occasional and hardcore infringers.
Under the graduated scheme envisaged in the DEA, only serial scofflaws and/or copyright martyrs would face any sanctions. Creative industries later agreed to fund the cost of the letters scheme on a 75:25 basis, and to contribute 100 per cent of the cost of the appeals body. [pdf, 2011].
But the UK's Permanent Bureaucracy - Whitehall departments including BIS, DCMS, the Treasury and Ofcom - never liked the Act and have shown great ingenuity in finding ways of delaying its implementation. In one example, the Treasury and Ofcom decided the costs order may represent a "cross subsidy between actors" and therefore be illegal under EU rules.
This didn't seem to hamper the French, who set up their Hadopi system for punishing downloaders in 18 months.
Ofcom's own published research reveals the number of infringers ensnared in the DEA would be small. So most people wouldn't notice. Just 1.6 per cent of UK internet users over the age of 12 are the top 10 per cent of copyright infringers, responsible for 79 per cent of infringement. Just 3.2 per cent of the internet-connected population does 88 per cent of infringement.
Ofcom also confirms the minority are wealthy, middle class (ABC1) and under 34 years old. Quite why the Whitehall bureaucrat should rush to the defence of a banker in his Docklands penthouse who is downloading torrents 24x7 remains a mystery. Thanks to Whitehall, he's now a member of what is possibly the most pampered group in Britain. Then again, you can also thank Whitehall for wind turbines and an energy infrastructure that's unlikely to be able to keep the lights on for much longer.
When you consider Whitehall's creative derailment of the DEA, alongside the recent “Instagram Act” - which permits the commercial use of other people's stuff without their knowledge or permission, on a scale never seen before in the world - the message is inescapble.
"Come to the UK, and nick stuff."
Yarr, me hearties! ®