The government's culture monkey Andy Burnham told a Music Week conference yesterday that there will be some measures in next week's final draft of the 'Digital Britain' report to force internet service providers to act against those who persistently access unlicensed music on the net, though he was a bit vague on specifics, except to say that those measures will fall some way short of the 'three-strike' disconnection system being introduced in France and favoured by some in the music industry.
Speaking at Music Week's 'Making Online Music Pay' conference, Burnham said that 'Digital Britain' would make it a requirement that ISPs notify suspected file sharers that their activities infringe copyright and that they may be sued for infringement by content owners - basically making what many net firms are already doing on a voluntary basis a legal requirement.
But, of course, warnings are all well and good but will only really work if backed up by a serious threat. With the UK record industry keen not to follow its American counterparts into a campaign of litigation against individual music fans - partly because of the expense and PR challenge of doing so, partly because thousands of lawsuits in the US didn't prove to be a deterrent - the content owners really need the government to introduce some sort of statutory sanctions against those who fileshare. This is where some advocate the French-style three-strike system where file-sharers who fail to heed two or three formal warnings can be cut off the internet.
Burnham's colleague who looks after these things, IP Minister David Lammy, has made it clear he doesn't see three-strike as a viable solution - and given such a move would be unpopular with many web users, it seems unlikely the Labour government would seriously consider it this side of a General Election. However, Burnham said yesterday that the government would draft legislation that would give rights to communications regulator OfCom so that they could force ISPs to apply "technical measures" against the "most persistent of file sharers".
OfCom has been expected to play a role in policing piracy since Communications Minister Stephen Carter, the man behind 'Digital Britain', admitted he was dropping his proposals for a special Rights Agency, an institution many content owners saw as a distraction, because the creation of it would delay any real action being taken against file-sharers and the ISPs who enable their file-sharing.
Needless to say, Burnham was not especially clear on what "most persistent" or "technical measures" would really mean. Some speculate that file-sharers might have their bandwidth cut, or be banned from accessing websites or IP addresses associated with illegal file-sharing, such as The Pirate Bay. All out disconnection is not likely, with Burnham reiterating yesterday that the government considers such a measure to be too "draconian".
Although Burnham's comments gave some music business execs in the audience at 'Making Online Music Pay' a little more optimism about next week's publication of the 'Digital Britain' report, which had been expected to say very little of use on the file-sharing issue, some remained pessimistic, fearing that the latest vague commitments from the government were not being backed up by specific information on what kind of file-sharer will be targeted by whom, under what jurisdiction, and with what penalties. It's also worth noting that past commitments made by Burnham have subsequently been downplayed by the aforementioned Lammy, who would presumably have to push any new laws through parliament.
According to the Guardian, the boss of record label trade body the BPI, Geoff Taylor, responded to Burnham's speech at 'MOMP' by saying: "That type of 'graduated response solution' needs to be put in place now, not in a few years' time. The long-term harm that will be done to the UK's outstanding creative industries - and the new jobs they create - will be enormous if government puts off hard decisions now. This is no time to fiddle while Rome burns".
Feargal Sharkey, the boss of cross industry trade body UK Music, meanwhile, said: "The government threw down the gauntlet to the music industry on this twelve months ago . We have done everything in our power to tackle the problem head-on so we can make sure we protect artists and keep producing amazing music. Now we are incredibly keen to see the government in the 'Digital Britain' report reciprocate their side of the bargain".
Elsewhere, Burnham urged the music business to keep talking to the internet service providers about developing alternative "legal models" for the digital music space. As previously reported, the ISPs have basically said they will only act on piracy if the music industry works with them to launch new music services that the net firms could offer their customers, bundled in with their existing monthly subscriptions. By "works with them", they really mean give the ISPs bargain basement royalty rates.
The logic is that you can't expect punters to stop accessing illegal services until the industry is providing compelling legal options. That logic is increasingly flawed, however, because there are now a number of compelling legal digital music services on the market (albeit with some holes in their catalogues), and even if there weren't, I think we all know that the exciting, engaging and consumer-friendly music services of the future aren't going to be created by the geeks and accountants that run the ISPs, however good a licensing deal they could negotiate from the majors.
Finally, just to make sure we represent all bases, we should point out that not everyone in the music business supports the three-strike system that the government is resisting. The Featured Artists Coalition has spoken out against any system that involves disconnecting web users, the Music Managers Forum's recent survey of artist managers showed they preferred some kind of 'access to music' levy over any disconnection programme, and, representing the indie label community yesterday, Charles Caldas of independent digital rights body Merlin said, according to the Guardian: "I haven't met an indie label that wants to see its customers prosecuted. Yes, we need to protect artists but first there has to be a compelling commercial offer for users. A system of educating users and encouraging them to move towards an efficient legal model would be more effective".