The Bookseller.com

9th September 2010

Benjamin King is head of Policy & Research at the UK Publishers Association.

A digital miss

18.06.09

The publication of the Digital Britain report this was the culmination of a long and arduous process of consultation – although not, it seems, the end of that process. To appoint a minister specifically to commission and produce a report (as Lord Carter was, nine months ago) is unusual. Gordon Brown hopes for, if not a legacy, at least a crutch by which a dying Government and an embattled economy might rise from their knees. But whilst the policy issues are hotly contested, the solutions are lukewarm. Likewise the response, by opposition politicians, the media and industry, all of whom believe the report should have delivered more.

Piracy, or more specifically, peer-to-peer filesharing, is the chief reason for the publishing industry’s interest in Digital Britain. Where the music industry once fought alone the whole content sector is now increasingly united by a common enemy. The digital publishing trade market, balanced on the cusp of potentially explosive growth, is particularly vulnerable. Rightsholders believe that ISPs, who are reluctant to admit liability or alienate their customers, have a critical role to play in tackling the problem.

Lord Carter proposes a torpid compromise. In the first instance Ofcom will require ISPs, which it already regulates, to notify subscribers who are identified as infringing copyright online. If after a year this has not brought about a 70% reduction in filesharing, then Ofcom will be expected to use its backstop powers to introduce further measures. These could include blocking sites and limiting the speed of users’ connections.

In essence this gives industry much of what the Publishers Association and others have long been calling for. The problem is the length of time that will pass before these measures are implemented. With a Digital Britain Bill unlikely to receive Royal Assent before mid-2010, it could be a further year before ISPs and content creators have agreed on a code for implementing the ‘write and sue’ approach. Once Ofcom have been able to monitor the effectiveness of these initial measures, acknowledge their inadequacy, and take decisive action, a total of three years could have passed.

Yet the need for decisive action is foregone conclusion. Strong evidence already exists to suggest that ‘write and sue’ will do very little to deter offenders, far less initiate shifts in behavioural change, and widespread civil litigation will be impossible to fund and co-ordinate, particularly for smaller publishers. Government’s answer, which is effectively to “wait and see”, will stifle innovation and investment as publishers reject chancing new business models in an environment which is still beset by risk – a loss which will ultimately be most keenly felt by the consumer.

Of course, only a fraction of the 250 page report addresses this controversial topic. A sketchy proposal for legislative reform for orphan works and the possibility of extended collective licensing schemes are also referenced; throughout this document recommendations are proposed and consultations announced by the barrelful. But these will not make or break the industry in the way piracy will, and until Government explains what it and Ofcom will be doing to reduce the three-year lag, it is difficult to believe that Labour takes the economic potential of the digital economy, the creative industries, and online piracy as seriously as it claims to.

Lord Carter will quit Government shortly, it is thought to return to the private sector. He will leave behind a brief flurry of media comment, another round of consultations, and a sector which still lacks the reassurance it craves – the reassurance that Government will not let inertia triumph over action. All in all, a missed opportunity.