JANET(UK) response to BERR paper "Copyright in a Digital World: What Role for a Digital Rights Agency?"

Re: DISCUSSION PAPER: COPYRIGHT IN A DIGITAL WORLD - WHAT ROLE FOR A DIGITAL RIGHTS AGENCY?

Thank you for the opportunity to comment on this paper. Unfortunately the very short timescale means that we have not been able to give the paper the detailed consideration it deserves. In making this preliminary response, JANET(UK) therefore hopes that there will be opportunities in future to discuss the issues raised in more detail.

We were very impressed by the legislative proposal in the interim Digital Britain report, which improved the ability of rights-holders to select persistent offenders for enforcement action through the civil courts while still preserving the privacy of Internet users until a court had had the opportunity to consider the evidence against them. That report also appeared to recognise the serious educational and social impact of any sanction involving disconnection from the Internet, that such a sanction was likely to impact a whole household rather than just the alleged offender, and that such sanctions were therefore not appropriate for an action that constitutes only a civil, not a criminal, offence.

We are therefore concerned that the Rights Agency paper seems to revert to the thinking of last summer, before the peer-to-peer consultation had resulted in this considerable progress. In particular the paper does not appear to place any limits on the sanctions that might be contained in the Code of Practice that is to be developed; such a Code could therefore circumvent the balanced approach of the interim report. Indeed the list of sanctions suggested for the Code still includes temporary disconnection from the Internet. As we explained in the JANET(UK) response to the original peer-to-peer consultation, we do not believe that it is appropriate for such a sanction to be imposed without the evidence being reviewed by an independent judicial body. Before such sanctions are considered, we would much prefer the proposals on notification and sanctions in the interim Digital Britain report to be implemented and evidence gathered on their effectiveness.

Should this evidence indicate that further actions are required, the Rights Agency paper does at least require that any Code of Practice be approved by Ofcom before becoming binding on all ISPs. However we believe that much clearer guidance than is contained within the current paper should be given to Ofcom on the factors - including the effect on other Government policies on digital inclusion, education and social development, and the effect of sanctions on innocent members of the same household - that should be considered in determining whether any proposed sanctions are proportionate.