Tuesday, June 16, 2009

Five Strikes And Counting: the Future of Digital Britain/Europe/Canada?

Re Sarkozy's latest revamp of HADOPI, I don't think I can face saying anything except, oh good grief Charlie Brown. Still I suppose judicial oversight IS actually what we want (if it's real and not just rubber stamp)t, so it's kind of good news :) (well we want so much more, like sense, but will we ever get it?)

Oddly, only three days ago, no one less than the multitalented Daniel Gervais reassured me (at the HK conference again, natch) that the French Constitutional Court decision, declaring 3 Strikes an unconstitutional limitation on access to knowledge and speech, was the definite end of HADOPI, for good. Mais non!

This is all the sadder as Daniel himself was at the time outlining a proposal he has developed with the Songwriter's Association of Canada, for a terrific flat rate levy "all you can download" system to be tried out in that country. Long time readers will recall Pangloss has long been a fan of flatrate levies to legitimise filesharing and provide proper creator revenues, removing the need for litigation and sanctions which often threaten human rights: but the brilliance of this scheme is that it is voluntary, but with incentives likely to make it viably near-universal.

Users will be able to opt in to paying a flat rate payment per month (added on to their monthly ISP bill) and then download any amount of music from Canadian-distributing record companies, perfectly legally. If you choose not to opt in, however, this is perfectly Ok but you have to sign a declaration saying you do not fileshare. Any subsequent discovery to the contrary is like to to be judged unkindly by the courts :) and it is likely that (rather as with those who don't pay a TV license fee in the UK) you would go on a "watch carefully" list (though this part was vague in detail yet).

Money collected by ISPs as part of monthly billing is simply handed over to existing collecting societies who distribute it as usual. ISPS are incentivised to take past becauze they save money by providing the digital music access via P2P, a la BBC's iPlayer - thus vastly reducing their bandwidth issues, and removing any need to monitor, filter or "traffic manage".

Simple, sensible, good human rights, good for artists, good for users, and a good combination of carrot and sticks. ISPs too can choose to opt in or out - how different from the acts of our own dear government, still determined to dragoon UK ISPs into propping up a failing business model, alienating their own client base and potentially breaching fundamental rights.

In the UK the nearest we yet have to this scheme among the big ISPs (leaving aside small innovative players like PlayLouder here) has emerged from Virgin's announcement that (from the Beeb) :"

For a monthly fee, Virgin's broadband customers will be able to download or stream as many MP3 files as they want.As part of the deal, Virgin has pledged to aggressively police usage to stop the MP3 tracks turning up on file-sharing networks."

The problem is that Virgin's all you can eat deal only covers Universal artists. Virgin say it is in talks to add other music firms' back catalogues to the service. But are there any prospects of all the major labels coming in, as in the Canadian scheme, to make legal P2P as attractive as the illegal version? Pigs might fly, seems the general gist of the informed response.

Which brings me back to to the newly released final Digital Britain report. Pangloss will have to take this one home, but the Beeb reports as highlights:

"The main points outlined in the report include:

• a three-year plan to boost digital participation

• universal access to broadband by 2012

• fund to invest in next generation broadband

• digital radio upgrade by 2015

• liberalisation of 3G spectrum

• legal and regulatory attack on digital piracy

• support for public service content partnerships

• changed role for Channel 4

• consultation on how to fund local, national and regional news

One of the biggest surprises in the report was the promise to introduce a levy on fixed telephone lines in order to pay for broadband rollout.

It will amount to a 50p a month tax for every household in the country with a fixed phone line."

On filesharing specifically: (para 46)

"...thirdly we aim to provide for a graduated response by rights-holders and ISPs
so that they can use the civil law to the full to deter the hard core of users who
wilfully continue unlawful activity. The Government intends to provide
initially for Ofcom to have a duty to secure a significant reduction in
unlawful file sharing by imposing two specific obligations: notification of unlawful activity and, for repeat-infringers, a court-based process of
identity release and civil action.

The Government is also providing for intermediate technical measures by ISPs, such as bandwidth reduction or protocol blocking, if the two main obligations have been reasonably tried but, against expectations, shown not to have worked within a reasonable but also reasonably brisk period."

Reportedly, the aim will be for these tactics to reduce illegal file sharing by 70%. Quite a target given rough guesses that 90% plus of downloading is currentkly unauthorised.

Same old, same old. So we can, it seems, organise a levy to pay for rural broadband - which every person in the country will have to pay, whether they use it or not and are urban or rural - but are unwilling to contemplate a system like the Canadian voluntary levy, where those who don't want to fileshare simply get to opt out, and those who do, get to pay a sensible amount instead of being slowed down till they can no longer use the Net for useful stuff like jobs, education and social interaction. Sigh. Double sigh. No more: I've said it all before.

One faint piece of good news is that as the Guardian notes:

"The final report does not contain any suggestion of a statutory "rights agency" that would try to reduce copyright infringement online, as was suggested in the interim report released earlier this year – to widespread criticism. Instead, the final report says "we hope that an industry body ... will come into being to draft these codes [of practice for identifying offenders] for Ofcom to approve and we would encourage all rights holders and ISPs to play a role in this."

So we don't have to pay the levy to pay for the SRA anyway. Not yet anyway. Small comfort :-) Note the codes are still to be drafted by the industry and approved by Ofcom , with a thumbs up from ISPs and rightsholders. Where is the consumer voice in all this??? In the words of Chirpy Chirpy Cheep Cheep, apparently far, far away...