Digital Economy Bill - Bill team meeting
John Shemilt (Imperial College) and I had an interesting and, I think, productive informal meeting with the Digital Economy Bill Team yesterday. We were able to provide them with a lot of evidence of the scale of the JANET and the policies and measures that we and connected sites take to deal seriously and effectively with copyright infringement. I think they were impressed. The timing was good as the Lords have asked for a briefing note on the status of educational organisations under the Bill and their current measures on copyright enforcement. That note should now be a lot better informed.
On definitions I’m afraid things are still very unclear. It seems to me that there is a pretty good argument that what JANET provides isn’t an Internet Access Service (as defined in Clause 16 of the Bill), since the main purpose of the network is to connect educational organisations to their peers in the UK and abroad, not to provide Internet connectivity. This point is picked up in the article in the Times Higher Education yesterday: that JANET exists to connect educational organisations to each other and to the Internet. For long-connected organisations there is a second argument: that they were allocated their IP addresses by RIPE or IANA, not by JANET!
However it is also possible (and initial debate in the Lords seemed to presume this) either that JANET would be classed as an ISP with universities and colleges classed as Subscribers, or that the university or college would be the ISP with the individual end-user as Subscriber. It is even possible that different JANET-connected organisations would fall into different classes, a nightmare for them, us, and rightsholders, who would not know who to send notices to. (The position of schools is even less clear as they generally have a regional schools network – itself perhaps “a subscriber that receives service as a service provider”? – connecting them to us).
Clause 4 of the Bill envisages rightsholders sending copyright infringement notices to the ISP; the ISP must then identify the Subscriber associated with the IP address and inform them of the complaint. Where repeated complaints are received about the same Subscriber there will be a number of trigger points when additional messages are sent forming a graduated response. The ISP is required to count and keep records of all notices but only passes on those that reach the trigger threshold.
If the university or college is the ISP this is actually what JANET policies already specify, though we require users to be dealt with for every report and most organisations treat repeat offences as a serious disciplinary matter. However if JANET is the ISP and the university or college the Subscriber then the process is both slower and less effective than at present. Involving JANET gives no benefit since the IP ranges and contact details for the "Subscriber" are already public in the WHOIS database and we have no way to identify the end user responsible. Furthermore since the main aim of the Bill is to educate the 7 million (according to Government estimates) UK citizens who currently breach copyright on-line that this is not acceptable it seems a perverse outcome - damaging to the interests of educational organisations, their users and rightsholders - for the trigger thresholds to result in us discarding perhaps 90% of those opportunities for education.
Unfortunately the debate in the House of Lords’ Committee did not address this problem with the current definitions, perhaps because the passage of the Bill is needs to be completed before the General Election, which major changes would make unlikely. However the uncertain status of educational organisations was again raised and the Minister agreed to seek clarification.
The good news is that the Bill, if passed, still has to be implemented through a Code of Practice to be approved by OFCOM as suitable for all stakeholders. The Bill Team have promised to keep us involved in the development of that Code, and they have now been clearly informed that a Code that only considers the domestic ADSL situation will be highly unsuitable for us. So I’ve got a lot more work to do, but it seems it should be possible to have our current good practice recognised and supported by the eventual outcome.
