13 Oct 2011 Peter Bradwell dcms

Evidence please

We have had a response to a Freedom of Information Act request that we made to the Department for Culture, Media and Sport. In the request we asked for evidence they hold on the scale and nature of infringement of copyright by websites and on the efficacy of different strategies for dealing with it. They told us in their reply that they don’t hold any.

This is a little alarming. Professor Ian Hargreaves’ recent review of IP and growth – the recommendations of which the Government says it accepts and will push to put into law – made much of the need for better evidence to guide policy making, particularly in relation to copyright. The IPO’s new IP Crime strategy also highlights a paucity of evidence and the need for more of it ahead of the development of further IP enforcement strategies.

The Government now has a chance to set out clear strategies for assessing the impact of infringement and the effectiveness of different enforcement strategies. Doing so is stage one in finding a way to bring the voices in this debate – be it rights holders, artists, or civil society – closer together to discuss practical, effective and proportionate policy.

One of the many criticisms of the Digital Economy Act is that it is not based on sound evidence. The Impact Assessments that support it is extremely weak, citing studies that are not publicly available and offering little in the way of analysis of the efficacy of different strategies of enforcement.

The Government still publicly backs the Digital Economy Act, and there are further DCMS-led discussions on more enforcement measures such as new website blocking schemes. Furthermore, DCMS are still citing studies from vested interests or that are not publicly available (for example in the introduction to their Digital Economy Act Next Steps publication). So it is a little odd that the DCMS claims to hold *no* evidence of the effects of infringement by websites, the scale of it, the nature of it, or the effectiveness of different means of tackling it.

It must be very hard indeed to make judgements about proportonality and necessity without evidence of the issue at hand. It leads to policy based on hearsay and assumption, which is someway short of the new standards for Intellectual Property that the Government recently set for itself.

Below is the full reply to our FoI, which contains the details of our request.

UPDATE – Monday, October 17th October.

We made the same request to the IPO. They sent us the following very helpful reply:

“Dear Mr Killock

Thank you for your e-mail of 15 September, in which you asked for the following information:

“Can you supply me with

(a) Any evidence presented to the IPO to establish

(i) the scale and effect of online copyright infringement by websites, the types of infringement and the types of content affected
(ii) the options and remedies available to government and rights holders to tackle online copyright infringement by websites
(iii) the consequences and efficacy of the options available to tackle online copyright infringement by websites

(b) Any evidence or impact assessments commissioned or generated by the IPO to establish

I have dealt with your request under the Freedom of Information Act 2000. After a thorough check of the IPO’s records, I can confirm that, apart from some published documents I shall detail below, we do not hold the information you are requesting.

As you may be aware, the IPO is the lead department for copyright policy and IP enforcement issues more generally. However, the work on online infringement issues following the Digital Britain Report, leading to the copyright infringement provisions in the Digital Economy Act 2010, was led by policy officials in BIS who have since moved to DCMS following machinery of government changes. Any materials commissioned or generated as part of those provisions of the Digital Economy Act should therefore now rest with DCMS.

The original impact assessment for the Act can be found at: http://www.ialibrary.bis.gov.uk/uploaded/Digital-Economy-Act-IAs-final.pdf . Under Ofcom’s obligations under the Act, it will prepare regular progress reports on the level of online copyright infringement, and an assessment of the impact of the initial obligations.

The Government commissioned Ofcom to report on the practical workability of sections 17 and 18 of the DEA, as a tool to tackle online copyright infringement. The Government published this document here: http://www.culture.gov.uk/publications/8365.aspx . The Government made clear that, on the basis of this analysis, it has no plans to bring these sections of the DEA into effect.

With regard to approaches to tackling online copyright infringement outside the DEA, much of the work being done in this area is being led by industry. There are no current plans for regulation or other Government intervention; if there were such an intention then of course an impact assessment would need to be prepared. In the meantime, discussions continue between stakeholders and Government – at both Ministerial and official level – about the scale and nature of online copyright infringement, and the efficacy and potential consequences of a variety of approaches to tackle the problem.

Although it is not clear that they are in the scope of this request, other documents that could be of interest to you may be found in the research commissioned by the IPO. All such reports are searchable on the IPO website (here: http://www.ipo.gov.uk/pro-ipresearch.htm ) with a list of the studies that relate to copyright and enforcement, with PDFs here: http://www.ipo.gov.uk/pro-ipresearch/ipresearch-policy/ipresearch-policy-infringe.htm You may also wish to look at the data presented in the IP Crime report which is also available here: http://www.ipo.gov.uk/ipcreport10.pdf .

If you require any further assistance please do not hesitate to contact me.

Yours sincerely,”

The DCMS reply:

“Dear Mr Killock,

Thank you for your e-mail of 15 September, in which you asked for the following information.

‘Can you supply me with

(a) Any evidence presented to DCMS, Jeremy Hunt or Ed Vaizey to establish

(i) the scale and effect of online copyright infringement by websites, the types of infringement and the types of content affected
(ii) the options and remedies available to government and rights holders to tackle online copyright infringement by websites
(iii) the consequences and efficacy of the options available to tackle online copyright infringement by websites

(b) Any evidence or impact assessments commissioned or generated by DCMS to establish

(i) the scale and effect of online copyright infringement by websites, the types of infringement and the types of content affected
(ii) the options and remedies available to government and rights holders to tackle online copyright infringement by websites
(iii) the consequences and efficacy of the options available to tackle online copyright infringement by websites.’

I have dealt with your request under the Freedom of Information Act 2000. After a thorough check of the Department’s records, I can confirm that we do not hold the information you are requesting.

The Department’s interest in working with both copyright owners and ISPs to examine options to address serious infringement of copyright is well known. The creative industries are an important part of the UK’s economy, and they regularly report copyright infringement as a serious problem. As you may know, part of the Government’s approach to tackling online copyright infringement is working to implement the initial obligations of the Digital Economy Act 2010 (DEA). The original impact assessment for the Act can be found at: http://www.ialibrary.bis.gov.uk/uploaded/Digital-Economy-Act-IAs-final.pdf. Under Ofcom’s obligations under the Act, it will prepare regular progress reports on the level of online copyright infringement, and an assessment of the impact of the initial obligations.

The Government commissioned Ofcom to report on the practical workability of sections 17 and 18 of the DEA, as a tool to tackle online copyright infringement. The Government published this document here:http://www.culture.gov.uk/publications/8365.aspx. The Government made clear that, on the basis of this analysis, it has no plans to bring these sections of the DEA into effect.

With regard to approaches to tackling online copyright infringement outside the DEA, much of the work being done in this area is being led by industry. There are no current plans for regulation or other Government intervention; if there were such an intention then of course an impact assessment would need to be prepared. In the meantime, discussions continue between stakeholders and Government – at both Ministerial and official level – about the scale and nature of online copyright infringement, and the efficacy and potential consequences of a variety of approaches to tackle the problem.

If you require any further assistance please do not hesitate to contact me.

Yours sincerely,”