The Interim Digital Britain Report, File Sharing and the Emerging Role of Internet Service Providers

According to Lessig, “The fear is that cyberspace will become a place where copyright can be defeated.” The internet has witnessed an exponential growth in recent times and has generated new business models. The internet also made it possible to digitally disseminate copyright works and this has become one of the greatest challenges currently facing the copyright industry. Enter the peer-to-peer (p2p) “killer application”, the Napster judgment and the recent Pirate Bay decision from Sweden remains instructive on their use.All around Europe measures are been proposed to give Internet Service Providers (ISPs) a role in the enforcement of copyright laws in a networked environment, for instance, the controversial 3-strikes law recently adopted by the French parliament and in the United Kingdom, Action plan 13 of the Digital Britain Report seeks to enact legislation requiring Internet Service Providers (ISPs) to notify alleged copyright infringers that their conduct is unlawful, this legislation also seeks to create a process whereby ISPs are required to make available to the rights holders retained anonymised information of repeat offenders. At first glance these proposed measures seem to be heading for a direct conflict with the general obligations not to monitor created under the Article 15 of the Electronic Commerce Directive (e-CD).This paper examines three issues; the compatibility of the proposed measures with the obligation not to monitor under the e-CD, the determination of the extent of the protection afforded the copyright holder under the Information Society Directive and the possibility of these legislative solutions in achieving the desired results