Notes from the Ofcom stakeholder meeting

Now that the DEBill has been rammed through Parliament and has become the DEAct it is Ofcom’s job to draft the Initial Obligations Code. Ofcom asked ORG and other stakeholders for advice on what to include in this code and invited us to a meeting in their very impressive offices on the South Bank.

About 30 representatives from the music industry, including Feargal Sharkey, ISPs, software companies and consumer groups came and we had a lively discussion.

The focus of the meeting was the notification period and the letter send to subscribers after an alleged copyright infringement. So Ofcom saves the most controversial issue, i.e. technical measures, for a later stage.

It also seems that Ofcom wasn’t well prepared for the meeting as they couldn’t answer most questions and referred them to future meetings in the consultation process.

The facts
Ofcom, as they see it, are to develop the criteria for a body that deals with CIRs and appoint it. This body has to be independent, robust, consumer friendly and use transparent methods. Ofcom  expects to publish the code in June and finish the process by August. The consultation period will be six weeks and finish before August. They plan to have a separate consultation process regarding technical measures.

Here are some notes of the meeting. Feel free to comment on this post or contribute on the forum.

Process, different phases

• There should be different tiers re consumer resolutions. The scale of the independent body will need to grow depending on its remit.
• Would there be one central resource that would manage the content of the letter?
• Several people raised concerns with regard to the cost burden on ISPs; e.g. for answering the phones if customers have questions about letter.
• Advice should be independent (e.g. from the Citizen Advice Bureau), not from industry. This should be funded by the process.
• The consumer journey should be clear and offer a reasonable, quick and easy resolution (especially if the initial letters are wrong, and a lot will be).

• If there is a standard letter, misinterpretation has to be avoided; who will send the letter?

• Ofcom confirmed that ISPs will send the letter.

• A three or four way process is preferable. It will have to include the legal basis on which letters have been sent and what data was collected and by who.

• The process needs to be effective, quick and accessible to consumers.
• What will the level of expertise of the body be?
• Will it be an automated process or a thorough investigation type?
• What about staffing and costs?

• Will there be one letter per infringement?

Ofcom said that this would be discussion of its own

Evidence

• Evidence needs to be transparent (timestamps) and included in the letter.  
• The time gap between collection of evidence and sending to ISP has to be short. Businesses might want that information quicker that private individuals.
• Ofcom said that the infringement will be explained in the letter. There will be more consultation regarding the second letter.

Timeframe (for subscribers to reply to letter)

• There were conflicting interest at this point.
• Four weeks is too short. What if people are on holiday? What about students?
• How long can data be kept?
• How much good information is provided to consumers? The more there is the shorter the time period can be.
• IP addresses might change automatically. How do you appeal against that?

Timeframe to review appeals

• This depends on the amount of letters.
• How does the body decide if it’s a frivolous appeal?
• Appeals might not be frivolous, but out of scope. What if they are sent to the wrong body?
• Ombudsman services allow 8 weeks on the average.

• This is a completely new process. We don’t know how many processes will be easy. It seems that we underestimate the complexity. There are no established places for people to go to for legal advice (costs!).

Contents of the letter

• The letter shouldn’t include all checks&balances; it should be short.
• Will there be a single letter? How do we arrive at this letter?
• There are potential punishments ahead, so this needs to be said in first letter.
• There should be guidelines on the minimum content of the letter.

Body’s independence from Ofcom and industry

• The governance arrangements are crucial. Will it be an existing body or new one? A new body would be difficult to set up with a governance structure that is wholly independent.
• How will it be funded? Funding will have significant impact on its independence.

Ofcom said that it will be funded by the industry, but insisted that it can still independent.

• How do you deal with customer complaints? Consumers will feel that it is not independent if it’s not accessible.
• What about the appointment procedure? Does the body have its own budget?
• What about transparency regarding the number, outcomes and bases of appeals. This is necessary as we are dealing with a quasi judicial process.

Ofcom said that a secured WiFi is a requirement. “Reasonable steps” have to be taken to secure the WiFi. (It was not explained what “reasonable” meant.) The evidence process will be tackled in the code.

• What about appeals against fair use/fair dealing? What happens if there are questions about the legitimacy of rightsholder’s claim? Does the body hve to deal with that? There are complex legal questions involved.

Ofcom said that the independent body will “probably” have to deal with these claims as well.