Joint memorandum of understanding on an approach to reduce unlawful file-sharing
This voluntary MOU between key stakeholders from the ISP industry, the content industries, OFCOM and the Government lays the foundations for a self-regulatory regime to address the issue of unlawful P2P file-sharing.
OBJECTIVE
All parties agree that the objective of this MOU is to achieve within 2 to 3 years a significant reduction in the incidence of copyright infringement as a result of peer to peer file-sharing and a change in popular attitude towards infringement.
PRINCIPLES
This MOU establishes five principles under which action will be taken, and it is accepted that further work will be undertaken on individual issues:
1. Signatories believe that a joint industry solution to this problem represents the best way forward. This will enable progress to be made rapidly on an industry solution as back-up regulatory provisions are implemented and will ensure a light touch and flexible regime. Signatories agree to work together with each other and with Ofcom to agree codes of practice.
2. Signatories, led by the creative industries, will work together to ensure that consumers are educated to respect the value of the creative process, and the importance of supporting creators to invest time and resource in developing new work, and understand that unlicensed sharing of others’ work is wrong.
3. Many legal online content services already exist as an alternative to unlawful copying and sharing but signatories agree on the importance of competing to make available to consumers commercially available and attractively packaged content in a wide range of user-friendly formats as an alternative to unlawful file-sharing, for example subscription, on demand, or sharing services.
4. Signatories will work together on a process whereby internet service customers are informed when their accounts are being used unlawfully to share copyright material and pointed towards legal alternatives. In the first instance ISP signatories will each put in place a 3 month trial to send notifications to 1000 subscribers per week identified to them by music rights holders, to agreed levels of evidence, as having been engaged in illicit uploading or downloading. Based on evidence from the trial, which will be analysed and assessed by all Signatories, Ofcom will agree with Signatories an escalation in numbers, widening of content coverage, and a process for agreeing a cap.
5. Signatories will be invited by Ofcom to a group to identify effective mechanisms to deal with repeat infringers. The group will report in 4 months and look at solutions including technical measures such as traffic management or filtering, and marking of content to facilitate its identification. In addition, rights holders will consider prosecuting particularly serious infringers in appropriate cases.
CODES OF PRACTICE
Signatories will draw up codes of practice to cover:
• standards of evidence;
• actions against alleged infringers;
• actions against repeat or criminal infringers;
• indemnity resulting from incorrect allegations of file sharing; and
• routes of appeal for consumers.
All codes would require the approval of Ofcom. The presumption would be that wherever possible the codes should encourage bilateral commercial arrangements between parties.
Engagement in this process would be open [to ISPs and rights holders], but would not be compulsory. The costs incurred in any action against alleged infringers would be shared between parties; the apportionment to be agreed. The intention would be that members would work together to produce standard processes designed to minimise costs whenever possible and appropriate.
COMPLIANCE WITH LEGAL REQUIREMENTS
For the avoidance of doubt this MOU does not affect any of the existing legal rights, remedies or protections of the Signatories, nor does it prevent the Signatories from entering into any agreement, outside the MOU, that they may wish to enter into. Implementation of the MOU will be in compliance with the provisions of the e-Commerce Directive as it affects ISPs and their liability, including mere conduit status, as well as the Copyright Design and Patents Act 1988 and competition legislation.
Dated 24 JULY 2008
[SIGNED] BPI Ltd (British Recorded Music Industry), Motion Picture Association, BSkyB, BT, Carphone Warehouse, Orange, Tiscali, Virgin Media, Department for Business, Enterprise & Regulatory Reform, Department for Innovations, Universities and Science, Department for Culture, Media and Sport
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BPI PRESS RELEASE
Government-brokered deal on P2P represents significant step forward in tackling illegal filesharing
BERR WEBSITE
(The MOU itself can be found in Annex D of the BERR consultation)
Consultation on legislative options to address illicit P2P file-sharing www.berr.gov.uk/consultations/page47141.html