Initial Obligations Code needs rewriting. Again.

Last week, the Minister for Culture, Communications and Creative Industries Ed Vaizey MP wrote to ORG, explaining how he understood the position of libraries and universities under the revised ‘Initial Obligations Code’. (The Initial Obligations Code is the instrument that sets out in detail how the Digital Economy Act will work).

We replied today, asking for approval of the Code to be withheld and that DCMS instruct Ofcom to rewrite the Code once more. (The Code requires the approval of the Secretary of State Jeremy Hunt MP).

You may remember that in our submission to Ofcom’s consultation, we asked them to have another go at writing the Code. That is because we think it still leaves cafes, hotels, libraries and other providers of wifi to the public with no clarity as to whether they will be considered ‘subscribers’ and be the subject of Copyright Infringement Reports. Despite the increasing importance of a widely available ‘infrastructure’ of publicly available wifi internet access, the Code does nothing to address the position of those providing that access. 

This is what we explained to the Minister in our reply today. We also set out how important wifi access has become to Internet users in the UK, and that it would be damaging for the Government to be taking steps that disincentivise the provision of wifi. 

You can read our letter below. The Minister’s letter to us is available here (pdf). 

7th August 2012

 

Dear Mr Vaizey,

Thank you for your letter of 2nd August regarding the revised Initial Obligations Code, which included an explanation of your understanding of the position in which libraries and universities now find themselves under the Code.

We certainly recognise and welcome the work that Ofcom have put into the revised Code. However, we believe it still does not provide the requisite level of certainty for wifi providers, from libraries through to cafes and hotels, as to whether they will be considered ‘subscribers’ and as a result be the subject of CIRs. As a result the Code will likely act as a disincentive to the provision of public wifi and undermine a key plank of the UK’s Internet infrastructure.

Given the likely low levels of infringement on such networks, this is a significant cost for little gain in terms of a reduction in levels of copyright infringement. We suggest that approval for the current Code is withheld pending a further revision that explicitly addresses the position of these wifi providers. In this letter we focus on this issue, suggest how this might be achieved, and explain why we think it is important to do so.

DCMS and Ofcom say that it is ‘likely’ that public intermediaries will be classified as non-qualifying ISPs rather than subscribers. We are far from certain this will be the case. Unfortunately, the appeals body does not have the power to issue such binding guidance.

We contrast this to the stance that Ofcom have taken with large wifi providers, who are explicitly excluded from the scope of the Code because “inclusion is likely to lead to them incurring substantial costs to achieve a minimal reduction in overall levels of online copyright infringements.” We note no such analysis been undertaken for other providers.

If the current explanation is a recognition that libraries and other wifi providers are in a problematic position then there is little reason to avoid properly clarifying the issue with certainty now.

This should be possible. Ofcom have claimed that they are prevented from exempting libraries and other wifi providers because this was not the intention of the government when the Act was passed. We do not agree that the will of the past government continues to have this effect.

It is within Ofcom’s powers to deal with the central issue: ensuring that wifi providers, including for example libraries, cafes and hotels, will not be considered subscribers that can be subject to CIRs under the Code. Ofcom can create a class of entities which cannot be the subject of a CIR under section 124(A) of the Digital Economy Act. We suggest that they do so through a further revised Code. Failing this, DCMS should provide Ofcom with an instruction to this effect.

We consider this to be such a vital issue because public wifi availability has grown in significance for Internet users in the UK.

As we detailed in our submission to the consultation on the revised Code (which we have attached to this letter), Ofcom’s own research demonstrates the importance of broadly available wifi infrastructure. The most recent Ofcom market report suggests that 81% of smartphone data traffic was carried over wifi in January 2012. Similarly, the Oxford Internet Institute’s Internet Survey 2011 defines the ‘next generation’ Internet user as being ‘someone who accesses the Internet from multiple locations and devices.’ Many providers of wifi have repeatedly asked for clarity and suggested that without it they may withdraw wifi provision. The Act and Code effectively kills off open wifi and places disincentives to the continued proliferation of wifi spots in the UK.

Given how easily this could be resolved, we see no reason to avoid taking definitive action on this problem now. We suggest that approval is withheld for this version of the Code, and that Ofcom produce a further revised Code that properly addresses the substantive issues identified by so many over the past two years.

Yours sincerely, 

Jim Killock
Executive Director