Skip to main content

Digital Economy Act cost sharing “may be unlawful”

Posted by malcolm on Monday, January 31st, 2011 at 9:56

The cost-sharing order made under the Digital Economy Act, which will force ISPs to pay 25% of the cost of the Act’s copyright enforcement provisions, may be in breach of European law, according to independent barrister Francis Davey.

A European law called the Authorisation Directive (2002/20/EC), which is part of the Telecoms Framework, specifies a limited set of charges the government may impose on ISPs. Under the Authorisation Directive, anyone is allowed to operate an ISP without any sector-specific tax or licence fee not specified in the Directive.

According to Davey, since contributing to the cost of a copyright enforcement regime is not one of the specified charges, this means the Cost Sharing Order recently published by the government is not compatible with the Authorisation Directive.

In other words I cannot see anything in the Authorisation Directive that could allow the UK to impose a requirement to pay for the initial obligations scheme that is compatible with the Authorisation Directive. Unless I am missing something, the Order, as it stands is unlawful.

Barrister Francis Davey

This objection is not entirely novel. Last year the European Commission ruled that taxes imposed on ISPs in France and Spain to support national broadcasters were incompatible with the Authorisation Directive, for the same reason.

Davey also speculates that the Cost Sharing Order may be defective because it requires copyright holders to estimate how many copyright infringement complaints they will make, and charges them for the estimate, but does not provide a means for recalculating when the actual number is known. Thus a rightsholder has an incentive to underestimate the number of complaints they are likely to make.  Ofcom has the opportunity to correct this, if it wishes, by stating in the Initial Obligations Code that rightsholders may only issue as many complaints under the Act as they previously estimated. However no such provision was made in Ofcom’s first draft of the Code.

With over 770 members connecting from over 76 different countries worldwide, LINX members have access to direct routes from a large number of diverse international peering partners.

© London Internet Exchange, 2018 Registered office: London Internet Exchange Limited, 2nd Floor, Trinity Court, Trinity Street, Peterborough PE1 1DA United Kingdom . Registered in England, Number: 3137929
VAT Registration Number: GB 665 9580 82 Head office main telephone number Telephone: +44 (0)1733 207700 Fax: +44 (0)1733 207729

Web Design by Web Design by Bluestorm Design & Marketing

Leave Feedback

Cookies

This site uses cookies to store information on your computer. Some of these cookies are essential to make our site work and have already been set. By using our site you accept the terms of our Privacy Policy.

×