Games and the Digital Economy Act: an Update

Earlier this year I wrote about the impact UK Digital Economy Act, which was passed by the Labout government earlier this year, and the impact the Digital Economy Act will have on games once it comes fully into force.  Now that has taken a step closer.  Read on for more… 
So what’s going on?
The Digital Economy Act is (among other things) a big change to UK law on copyright infringement, because it mandates a new system in which rights holders (e.g. developers and publishers) cooperate with ISPs to locate, identify and take legal action against copyright infringers, such as people who download pirated games.  The most (in)famous aspect of the system is the threat that rights holders and ISPs would together be able to use ‘technical measures’ against infringers’ internet access, i.e. to throttle down or even cut off their internet access (although in the event this was toned down and now the Government effectively has the power to give those powers to Ofcom if it feels it necessary once DEA is fully in force).  Against a spirited resistance from a number of angles, the Labout government passed the DEA in its last days and left it to the UK telecoms regulatory body, Ofcom, and the Department for Business, Enterprise and Skills (BIS) to put together codes of practice/ that will actually govern how DEA would work (you can read the DEA itself here).
Now Ofcom/BIS are taking serious steps towards setting up that framework in which DEA will work.  Earlier this year Ofcom released a draft code of practice (which you can see here) and now BIS has released guidance on one of the most important/contentious issues: who is going to buy for all this anti-piracy action?
Over to Technollama, who gives a good summary of the key points:
  • ā€œThe notification costs of ISPs and Ofcom as regulator are to be split 75:25 between copyright owners and ISPs
  • There should be no fee for subscribers to appeal against a notification letter. However the Government retains the power to introduce one at a later date should it become clear that a large number of vexatious appeals result.
  • The deadline for Ofcom to complete the initial obligations code will be extended by 3 months to reflect the need to notify the cost regulation separately under the Technical Standards Directive.ā€
So rights holders will have to stump up 75% of the costs, ISPs have to stump up 25%, and consumers pay nothing.  Which will be not enough for the rights holders, too much for ISPs and just about right for consumers (though they don’t really want the DEA anyway).  And we’re probably going to be talking about a fair deal of money here – it’s not cheap to locate, identify (through a Court process) and then sue illegal downloaders.

Oh and, as importantly, Ofcom is given another bit more time in which to finalise the actual legal framework in which DEA will have to operate.

What does this mean for games?
For the games industry, fundamentally the position remains the same: once DEA is fully operational (a gold star to anyone who spots the film quote there), it will become a powerful weapon for all rights holders – including developers and publishers – to use against content piracyNow we know that, if developers and publishers want to use that weapon, they will not only have to to identify and pursue the pirates (in accordance with the rules that Ofcom hasn’t finalised yet), they will have to pay 75% of the costs as well.  Whether that operates as a brake on using the DEA powers against games pirates, well, we’ll have to see.
One other point which I keep making, that we don’t know the answer to yet, is whether DEA can/should apply to ‘innocent’ copyright infringement, in particular fan mods or games UGC.  I think legally it does apply to that kind of content, but will devs/publishers actually use the DEA to take action against that kind of content?  Really that’s the classic question about third-party content: yes, on the one hand it acts as a homage to your game and can even drive traffic etc, but on the other hand it is content which is outside your creative, legal and financial control.  We’ll have to see.
As and when there are further developments (probably when Ofcom releases the next draft or the final code of practice), I’ll write another update. 
[image author: Andrew Dunn, obtained via Wikipedia]
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