31 August 2017
Miles Harmworth graduated with a first class LLB Law (Hons)(International) degree in July 2017. He is currently completing his LPC before beginning his training contract with Taylor Wessing. His dissertation was supervised by Dr Catherine Easton.

My dissertation examined the leading legal developments within the United Kingdom, made in response to illegal peer to peer (P2P) file sharing; evaluating whether the measures and procedures implemented by the government have produced an effective response to the issue. I argued that the government’s actions have been, and remain, fundamentally flawed due to operational uncertainty, challenges to their practical implementation and issues concerning the balance of the burden with respect to parties involved.

P2P file sharing is an internet technology that allows users to share digital media files through a process known as torrenting. Whilst the technology itself is not illegal, its use in distributing copyrighted media files is. In 2007, the British Phonographic Industry estimated that as much as 25% of UK internet users engaged in online music piracy, estimated to have cost the UK music industry over £180m per annum. Since 2007 use of the technology has increased year on year. With a growing threat to the UK media industry and the potential for a generation of users to expect their media content for free, legislative action was required.

Initial attempts at tackling the problem were made prior to 2010, where the government adopted s.107(4A), an ad-hoc provision to the Copyright Design and Patents Act 1988 (CDPA), which formally made online infringement a criminal offence. Whilst this provision provided a step in the right direction, it failed to produce the comprehensive framework required for its functional success. Fundamental questions remained unanswered such as the role of internet service provider and whether they could be responsible for the activity of their users and if not what duty did they owe? How was evidence to be gathered? Where would costs lie? Moreover, the provision afforded for a comparatively weak deterrence mechanism, providing merely a maximum 2-year prison term in comparison to the 10 years for a physical offence.  This was the clearest indication that the government was not taking online infringement seriously.

In 2010, the government made its most comprehensive attempt at solving the issue, producing the Digital Economy Act (DEA). The DEA was designed as an enabling Act, facilitating the introduction of a graduated response system, reliant on cooperation between internet service providers and rights holders, in delivering a 'three strikes and you are disconnected' system. From a theoretical stance, the system was simple, if a user was caught infringing they would be provided with a notification, following receipt of three notifications their internet connection would be terminated. However, practically the system was substantially flawed; issues concerned the form in which users were to be notified, the appeals procedure and the distribution of costs between the ISP and rights holder. Most significantly, however, the system focussed on the wrong type of user. It relied on detection through conventional methods of accessing the internet and failed to provide a system which accounted for those that employed anonymity systems to mask their online presence. A practice which is, in fact, growing among domestic users themselves in order to protect their privacy. Facing overwhelming opposition from academics and industry players the government ultimately abandoned its implementation.

Following the failure to implement the DEA, efforts refocussed on utilising the CDPA, as a means of tackling the problem. In an action brought by Twentieth Century Fox Film Corp. (Newzbin case [2010]) the court recognised the possibility of s.97A being used to grant blocking injunctions against ISPs. Such injunction would order ISPs to block access to websites involved in the hosting and facilitation of copyrighted material. This ruling marked a significant departure in approach, instead of holding the individual user accountable, this new approach would prevent user access at source.  

The new system has proved popular among rights holders and the law has since expanded its purview to cover not only sites that host illegal content, but those which serve as a directory to its access. Nonetheless, the system remains vulnerable to a number of weaknesses; circumvention measures continue to be an issue, as does the allocation of costs to implement the orders. Moreover, the longevity of such a system may be called in to question, observing the Swedish jurisdiction which implemented a similar system and, overwhelmed by the number of applications made, now refuses to hear future applications.

My dissertation concluded that the UK's efforts in producing an effective response to illegal P2P file sharing have been rife with vulnerabilities and operational weaknesses. Whilst the s.97A procedure remains the most successful, problems concerning longevity and circumnavigation with continue to undermine its effectiveness. The issue of P2P file sharing remains a 'live' topic with recent discussion concerning the production of a single EU copyright title. However, due to mixed responses, its development is unlikely. Domestically, the Digital Economy Act 2017 has achieved royal assent, with s.107(4A)(b) set to increase the maximum prison term for online copyright infringement to ten years (in-line with physical infringements).  Thus, with sufficient publicity, the amendment may serve to strengthen the UK's legislative response by providing a significant deterrent to infringing activity, a characteristic lacking in the s.97(A) procedure. Furthermore, the UK Intellectual Property Office has opened a research bid into assessing the effectiveness of the UK’s IP enforcement framework, which could potentially facilitate yet another substantial overhaul of the current enforcement system. Thus, only time will tell whether s.97A remains to be considered the most effective response.