On 1st July 2009, the Government published its long-overdue response to the Law On Damages Consultation. This consultation was closed on 27 July 2007, almost two years ago. A specific issue which was raised by the Federation in its response was that it is currently possible to acquire licences for software applications after an infringement has been discovered without any penalty being imposed. The Government recognises that the absence of such a penalty does not provide any incentive to acquire the licence prior to use. However, it does not believe that exemplary damages to counter the absence of any penalty is the answer. It states that the imposition of a fine may be a more appropriate course in these circumstances. No commitment to change this has been given by the Government, and fines are already a possible penalty where a company has been convicted of copyright offences. We are disappointed that after nearly two years, no material change is being proposed and the Government says that further consideration is needed.

On Friday, the Government announced the creation of a new Department for Business, Innovation and Skills whose key role will be to build Britain’s capabilities to compete in the global economy. The Department will be created by merging BERR and DIUS. We note that David Lammy MP has been confirmed as a Minister within the new Department for Business, Innovation and Skills. His role has not been announced yet, but we are hoping that he will keep his responsibilities of IP Minister having instigated a major review. However in the light of yesterday’s announcement that Sion Simon MP has joined DCMS as Minister for Creative Industries, with responsibility for Copyright and IP, this remains to be seen. Who is now in control of the copyright agenda? Watch this space for any developments!

Research carried out for the Strategic Advisory Board for Intellectual Property (“SABIP”) has found that seven million people in the UK are involved in “illegal downloads”. The report suggests that people on one file-sharing network had free access to £120 billion of material. SABIP’s view is that it may be hard to change attitudes towards downloading in the light of the ease with which it can be done, especially at no cost to the downloader. Internet Services Porviders (ISPs) continue to voice the view that it is not their job to police the internet.

We do not believe that it is a defensible position for ISPs to avoid all responsibility. Our view is that, under existing legislation (section 35, Data Protection Act 1998), personal data can be given to rights holders for the purpose of prospective legal proceedings. Citing agreements with customers, ISPs are resistant to using this exception to the data protection legislation. The current practice, which involves the rights holder seeking an order for pre-action disclosure under CPR 31.16 (a “Norwich Pharmacal order”) is a resource-heavy and expensive process. Consequently, this can lead to a chilling effect on legitimate actions to deal with illegal file-sharing. Is it time for the Government to act and compel the ISPs to take this simple step that they are able to do under existing law?