Wednesday, December 06, 2006

More on Gower : ISP copyright cops are coming?

On the briefest of further scans, one item of particular interest to anyone who has been following the rather covert debate about how far ISPs can or should be enrolled to assist the state (or the BPI, etc) in cutting down on on line piracy.

Recommendation 39: Observe the industry agreement of protocols for sharing data between ISPs and rightsholders to remove and disbar users engaged in ‘piracy’. If this has not proved operationally successful by the end of 2007, Government should consider whether to legislate.

This is about whether ISPs should have to hand over logs of material downloaded automatially , or perhaps on request, to rightsholder groups so they can spot possible pirates. Should the user have a right to privacy or at least such a right prior to obtaining a court order or perhaps showing reasonable suspicion? Currently some ISPs are known to reveal anonymised logs of especially heavy downloades or uploaders, leaving it to the rightsholder then to come back and ask for disclosure on grounds permitted by the Data Protection Act. Some ISPs will only give away *any* details after court order, arguing that they may breach data protection rules otherwise and owe their clients confidentiality both by law and by contract. Others may feel that the public are entitled to presumption of innocence til proven guilty. Still others feel that they are merely ISPs , not mandated to act as judge and policemen in such cases where rightsholders might well ask for particular identified downloaders to be summarily disconnected.

Gower however signals a definite governmental backing both of voluntary disclosure by ISPs and of "notice and disconnection" (discussed before on this blog.)

ISPs "should assist rights holders by providing a procedure through which automatic action in courts will be avoided and would allow greater scrutiny on the actions of users. BCP [a model best common practice document] is an ideal way to proceed if an agreement can be brokered between the ISPs and the copyright owners and would respect safe harbour provisions for ISPs which were set up in good faith. If there is a failure to agree, the Government should look towards establishing an appropriate statutory protocol."

So there you go.

Incidentally I've changed my mind. The press may seize on 10 year sentences for downloaders, and Lessig and Cliff Richard may be (differently( excited about no term extensions; but my bet for Most Controversial Recomendation (possibly tieing with the already mentioned limited new introduction of private copying rights) is this one:

Recommendation 11: Propose that Directive 2001/29/EC be amended to allow for an
exception for creative, transformative or derivative works, within the parameters of the
Berne Three-Step Test.

Alrighty!! Who's going to be the first to create a sampled rap praising the Gower Report? maybe they can finance the implementation with the royalties from a few Snoopy Dog or Doggy Snop , records..

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