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Digital Economy Bill criticised by the House of Lords, as details revealed on whether internet cafes, libraries and universities are service providers

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The House of Lords has criticised the government over the digital economy bill with complaints made about the impact on WiFi access in public places.

The Open Rights Group, who has been actively against the Phorm technology and against the plans to cut off file sharers from the internet claimed that it felt the same anger as the Lords over the fact that an ‘accused infringer would have sufficient legal rights to appeal'

The Lords also complained about the impact on libraries, universities and internet cafes with (open) WiFi. According to the Open Rights Group blog, the government front bench's reply was disappointing to say the least. It said ‘they do not want to see universities in front of a court over infringement but do not want to exclude them from the proposed law either'.

It said: “The government has been down playing the impact on these institutions and businesses in general and keeps saying that if we all behave sensibly it will all be fine. No it will not. The main problem remains that the account holder is responsible for infringements, not the infringer. The government acknowledges that this is true, but doesn't care.”

It also reported that Lord Puttnam accused the government of attempting to push the legislation through and not allowing proper discussion, and said that the bill as it stands is not fit for purpose.

He said: “I am absolutely convinced that, within the next two or three years, there will be another bill before this house which will be created to deal with the deficiencies of the present bill.”

The Open Rights Group said: “How would internet cafes, libraries, universities deal with infringers? What happens to their connection if they receive the qualified amount of infringement reports from Ofcom? If they get disconnected how would students, for instance, continue their studies?”

In a recent factsheet published by the department for business innovation and skills, a paragraph that read ‘where the university/library/WiFi provider is an ISP' it read ‘if falling into the ISP definition, an establishment will have to comply with the obligations falling upon ISPs, provided the level of infringement on their network was such as to breach any threshold limit set out in the code'.

However where the university/library/WiFi provider is a subscriber, ‘an establishment could receive notification notices from their ISP where their connection was linked to an allegation of copyright infringement. It would be up to the establishment to take action if they wished to avoid receiving further letters or avoid the prospect of inclusion on a copyright infringement list'.

In a section concerning exemption for libraries, the factsheet states that it ‘cannot give blanket exemptions for any such establishment', as it ‘would send entirely the wrong signal and could lead to fake organisations being set up, claiming an exemption and becoming a hub for copyright infringement'.

With regards to universities, it claimed that the position is far more complex as most university networks pre-date the internet and most have their own IP allocation. It said that ‘it is not possible to say whether Janet (the not-for-profit organisation which provides the backbone network that connects universities, colleges and schools to each other) is acting as an ISP or not; nor is it clear whether a university is a subscriber, ISP or is simply not in the scope of the bill. As such, we cannot say simply who the ISP is and who is the subscriber, only that this is something that each university would have to look at and establish for themselves'.

With regards to WiFi networks, it said that ‘depending on the type of service and the nature of their relationship with their consumers, a WiFi provider may be an ISP or a subscriber. In some circumstances they might be regarded as a communications provider'.

It decreed that ‘it seems unlikely that the type of free broadband service currently available would be sufficient to support any file sharing or could be used for significant copyright infringement. Under our proposals such a service is more likely to receive notification letters as a subscriber than as an ISP'.

However, the broadband rates one might expect of a commercially offered WiFi service in competition with the fixed and mobile providers would almost certainly be sufficient to support file sharing, and in that case the WiFi provider would have to comply with the initial obligations, as would any other ISP.

For hotels, holiday parks and conference centres, ‘each establishment would need to examine their position and decide whether they were a subscriber, ISP or indeed communications provider in terms of the bill, although it appears unlikely that few other than possibly the large hotel chains or conference centres might be ISPs'.

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