The Independent Music Companies Association (IMPALA) and International Federation of the Phonographic Industry (IFPI) have welcomed the recent voluntary agreement in the United States between internet service providers (ISPs) and the creative industries, in particular trade bodies representing the music and film industries, to deal with copyright infringement online. IMPALA and the IFPI have suggested that the agreement is a model for Europe.

The US Agreement

It was announced on 7 July 2011 that a Copyright Alert System had been agreed in the United States between ISPs and the creative industries to try and combat copyright infringement online. The agreement is a commitment to introduce a “three strikes” system to combat illegal file-sharing, although there could be six strikes before “technical measures” are introduced. Essentially, if a user fails five times to respond to warnings that illegal content is being accessed via their internet connection, the ISP will be obliged to instigate a technical measure. Such measures might include “bandwidth throttling”, or suspension of access to the internet until such time as the user undertakes to stop downloading or sharing unlicensed music and movies. The agreement does not, however, include total suspension of access or disconnection from the internet and there will be an appeal process for users.

The Copyright Alert System appears to mark a shift in attitude towards the idea that ISPs should be sharing the responsibility of dealing with online infringement. According to IMPALA, this system is an excellent example of constructive cooperation to protect the work of creators. It continues the positive trend in Europe, where several countries have introduced, or are in the process of introducing, measures to tackle copyright infringements and/or block infringing websites. IMPALA also welcomes the move to establish an information centre to educate citizens about the importance of copyright and to promote legal ways to obtain music online.

IFPI’s Chief Executive Officer, Frances Moore, noted that the agreement “is the latest mark of recognition that ISP cooperation is the most effective way of addressing online piracy”.

The UK and the Digital Economy Act

In the United Kingdom, at the annual general meeting of the British Phonographic Industry, the Minister for Culture, Communications and the Creative Industries, Ed Vaizey, recognised the immense difficulties faced by the industry as a result of online copyright infringement and unlawful downloading and file-sharing. He said it was encouraging that ISPs, search engines and others were showing “clear signs” that they recognised the central role that music has in driving other business. However, he stressed that “it also cuts both ways”, and that the music industry must embrace a “state of continuous change that can be uncomfortable”.

Mr Vaizey recognised that revenues of UK record labels had fallen by a third since 2004 and that help was needed to ensure that it can evolve into an industry for the future. In relation to the Digital Economy Act (DEA), Mr Vaizey stressed that to ensure that the “initial obligations” on ISPs (designed to reduce unlawful file sharing) under the DEA are up and running as quickly as possible, Ofcom— the independent regulator and competition authority for the UK communications industries— must have all necessary information, including rights holders’ budgets. Mr Vaizey also said that the Government wants to give the industry more support to grow and prosper overseas. However, the industry itself must grasp all the business opportunities currently emerging.

Comment

The US agreement appears to signal a slight shift towards agreement with the collecting societies and other bodies that ISPs should take on more responsibility when it comes to online copyright infringement. In France and the United Kingdom, because the relevant parties were unable to reach any consensus on how to deal with the problem, legislation was introduced.

As for whether the rest of Europe will be inspired by the US model, the Synthesis Report published in March following the European Commission’s Stakeholders' Dialogue on illegal uploading and downloading and recently the responses to the Commission’s consultation on the IP Enforcement Directive (2004/48 EC) indicate that there is still distance between rights holders and ISPs who remain reluctant to accept responsibility for their subscribers’ actions or to bear any significant proportion of the cost of combating copyright infringement over their networks.