The Digital Economy Act 2010 (Essay Sample)

The Digital Economy Act 2010
Name
Institution
The Digital Economy Act 2010
In the recent past there has been an intensive technological advancement which has made the world a global village. Owing to this cyber security has been among the primary concerns of online browsing Among the major concerns of innovators is the extent to which their copyrights are protected from infringement by malicious people. In the recent past there has been heated debate on the increasing cases of copyright infringement. To address the concern, the Digital Economy Act 2010, which was meant to protect copyrights from infringement, was legislated. However, before its adoption, various interest groups had raised concerns over its failure to allow for a level plying ground for the affected parties. This essay will critically explore the possible adverse effects of the bill in light of the publications by Benjamin Farrand and Nick Cusack.
There are several misfits that are associated with the bill including heavy burden borne by the internet service providers (ISPs) and lack of clear frame work on the impact the act will have on enterprises using Wi-Fi to enhance customer experience. There have also been concerns on the possible impacts the impacts of the new provision to learning institutions. As it turns out, a gap still exists between right owners and the internet service providers more so on enforcement of third party rights due to the immense cost associated with the exercise. Prior to 2010, the light touch policy legislative measure which was put in place to combat online piracy proved in efficient. This necessitated the collaboration between the British music industry and the government so as to come up with more stringent measures to counteract copyright piracy. Notably, only 5% of the MPs debated on it and was quickly passed into law amid the immense scrutiny both from the public and the media. The other notable shortcoming of the legislation is that it only addresses those ISP with more than 400,000 subscribers. The implication is that one can easily evade the legislation by limiting the number of subscribers. As such, the Act tends to promote anticompetitive environment where subscribers favor smaller operators where they cannot be monitored. For instance, from the way the provision is structured, its compliance with the European legislation is questionable.[Benjamin Farrand ‘The Digital Economy Act 2010 - a cause for celebration, or a cause for concern?’ (2010) 32 EIPR 536] [Patrick McKeown, 'The Digital Economy Act 2010: Why The UK's Graduated Response System To Counter Online Copyright Infringement Should Be Repealed' SSRN Electronic Journal.] [Andrew Heaney, 'Response to Paper by Birgitte Andersen on The Digital Economy Act' (2010) 28 Prometheus.] [Nick Cusack ‘Is the Digital Economy Act 2010 the most effective and proportionate way to reduce online piracy?’ (2011) 33 EIPR 559] [Guido Westkamp, 'The Digital Economy Act And Copyright Liability: Initial Observations On The Dangers Of Self-Regulation' (2010) 11 Computer Law Review International.]
It is also noted that by sending notification messages, the ISP will be warning the subscribers who illegally share copyrighted materials that their actions are being monitored. Additionally, the ISPs will have to incur extra administrative costs to effect the provisions of the bill. It is noted that many internet pirates will either use fraudulent details or use a hacked IP address making it difficult to trace them. Additionally, the increase in WI-FI usability makes it difficult to trace infringement to a particular person, since it is economical unviable for WI-FI providers to keep a record all the temporary customers using the service. As such, under the act commercial service providers, businesses who provide Wi-Fi for the comfort of their customers as well as learning institutions may be considered as ISP which puts them at risk of facing trial. The three strike rule is the other section of the Act which has raised concern especially from public institutions and hotel owners. Notably, the ISP is required to cover 25% of the costs incurred to effect notification to the copyright owner. This has faced a lot of dejection from ISP arguing that the beneficially should bear all the costs. This coupled with penalties in case of failure of compliance, makes ISP at risk of being sanctioned. This is because the bill fails to offer the due judicial process to individuals who allegedly breach the file sharing protocol.[Julia Hörnle, 'Premature or Stillborn? – The Recent Challenge to the Digital Economy Act' (2012) 28 Computer Law & Security Review.] [Dinusha Mendis, 'Digital Economy Act 2010: Fighting a Losing Battle? Why The ‘Three Strikes’ Law Is Not The Answer To Copyright Law's Latest Challenge' (2013) 27 International Review of Law, Computers & Technology.]
The fact that these institutions offer internet services to increase the customer experience of their varying clients puts them at risk of being sued for copyright infringement. As it turns, out the place of various internets intermediaries, such as libraries, is not specified in the bill. Notably, the bill nullifies the presumption of innocence as core foundation of justice hence contradicting the very provisions of the law. It is also noted that the gathering of private data such as contact information as provided by the act undermines human rights provision by article 29 working party. The fact that the Act relies on IP address in identifying the guilty parties, makes it to unfairly target organizations who use routers where by all devices connected to it share the same address. As such, it would be difficult to track copyright infringement to a particular user. This leads to unfair accusation of such organizations. As such, to some extent, the bill may be viewed as infringing on the right of information access. Additionally, as it turns out, the threat of the super pirates who are inventing new ways of accessing copyrighted information remains a challenge.[Chris Holland, 'The Digital Economy Act: What Are The Implications For Libraries?' (2010) 10 Legal Information Management.] [James Griffin, 'The Effect of the Digital Economy Act 2010 upon 'Semiotic Democracy'' (2010) 24 International Review of Law, Computers & Technology.] [Farrand (n 1)] [Felipe Romero Moreno, 'Unblocking the Digital Economy Act 2010; Human Rights Issues In the UK' (2013) 27 International Review of Law, Computers & Technology.]
Notably, mobile ISP will, not be affected by the provisions of the new bill which puts its comprehensiveness to question. The numerous restrictions the copyright owners are required to abide by including costs order and two months notification period make it costly to follow up the infringement complaints. As such, a heavier burden has been placed on the shoulders of the copyright owners. The exclusion of ISPs for the mobile industry as well as 400,000 subscriber threshold implies that loopholes still exist in the provisions of the Act. As such, though the act will minimize infringement, it fai...