The UK Intellectual Property Office (IPO) has today confirmed that they intend to pursue tentative plans to setup a new “administrative site blocking” process (as opposed to requiring a High Court injunction), which would require broadband ISPs to block customers from accessing websites that facilitate internet piracy.
At present the largest ISPs (e.g. BT, Virgin Media, Sky Broadband and TalkTalk) can only be forced, via a court order, to block websites if they are found to heavily facilitate internet copyright infringement (piracy), which is supported via Section 97A of the Copyright, Designs and Patents Act. So far well over 100 piracy sites have been blocked as a result of this (including several thousand proxy sites and mirror domains).
The existing process can be both very expensive and time consuming for both Rights Holders and broadband providers, although ISPs did recently secure a useful ruling that indemnifies them against shouldering some of the costs for such blocking orders (here). At present this only applies to blocks that stem from the abuse of a Trade Mark.
Suffice to say that Rights Holders (e.g. BPI) have been pushing for the Government to develop a cheaper and easier approach, which was first hinted at in June 2018 (here). Today the Government published its response via a plan for tackling “illicit streaming” services and devices (e.g. Kodi boxes), which included proposals to explore a new administrative site blocking process that would do away with the need for court orders.
Sam Gyimah, UK Minister for Intellectual Property, said:
“Illegal streaming damages our creative industries. We have always been clear that media streaming devices used to access ‘paid for’ material for free are illegal. Recent prosecutions have shown that if caught, sellers of boxes adapted in this way face fines and a prison sentence.
Through our modern Industrial Strategy, we are backing our booming creative industries which is why we are taking further steps to tackle this threat and in our recent creative industries sector deal outlined support to create the right conditions for them to continue to thrive.”
The Government confirmed today that it will:
* Consider the evidence for and potential impact of administrative site blocking (as opposed to requiring a High Court injunction in every case), as well as identifying the mechanisms through which administrative site blocking could be introduced.
* Work to identify disruptions that may be applied at other points in the supply chain, for example App developers, and further develop our understanding of the effect of new generation smart TVs on how this infringement occurs.
* Undertake research into consumer attitudes/motivations towards use of ISDs in order to develop more effective strategies for reducing levels of use.
* Deliver up to date training to Trading Standards officers via the established I.P in Practice courses.
We aren’t surprised by any of this, particularly in light of the current Government’s internet safety strategy and their move to ban commercial porn sites (i.e. those that fail to include an approved Age Verification system). The systems now exist to make site blocking much easier and if they can take the courts of out that process then it will also become a lot more affordable.
At this stage we’re not sure what “disruptions” might also be explored alongside this change, although conceivably it’s possible that they may target Proxy and Virtual Private Network (VPN) services. Such services are often used to circumvent blocking systems with ease, but crucially many people also use them for remote working / support systems, free speech and other legitimate purposes.
We’d hope that if the Government do take such a path (at present they haven’t specifically spelled out what they’ll do) then they act cautiously and only target those services that are dedicated toward supporting copyright infringement. For example, a web proxy that only takes users to a mirror of an offending site (i.e. they serve no other purpose than to facilitate piracy); existing court orders already extend to such proxies.
Meanwhile smaller ISPs will be concerned about whether the new approach is going to include them, not least due to the issue of cost. Admittedly the cost depends upon how deep in the network they’d want such blocking to go (e.g. a simple DNS based solution is cheaper than a complex network-level filter). People will of course always find ways around any of these restrictions.
One other concern is the issue of judgement and oversight. Somebody somewhere in the proposed “administrative” process is still going to have to review each site blocking request in order to prevent abuse, which is something that would also carry a cost (who pays?) and must be independent.