Following a Digital Economy Bill committee earlier this month, it was revealed that copyright holders and search engines were close to finalizing a voluntary anti-piracy code. This Monday, it became reality.
Under this agreement, search engines will optimize their algorithms to demote pirated content in search results, with the aim of making infringing content less visible and legal content more so. The system is due to begin in earnest during early summer but what if it doesn’t do its job?
That eventuality has been discussed as part of the negotiations surrounding the Digital Economy Bill, with some lawmakers supporting an amendment which would give the Secretary of State the power to force Google and other search engines to tackle piracy, if the voluntary route fails.
To the relief of Google and the disappointment of rightsholders, this week the amendment was withdrawn but those in favor of the legislation didn’t go quietly. Lord Stevenson of Balmacara was particularly vocal after reading out a portion of the code (shown below) relating to the demoting of sites that receive large numbers of DMCA-style notices.
[T]o more effectively use such notices to demote domains demonstrated to be dedicated to infringement, and to work collaboratively with rights holders to consider other technically reasonable, scalable avenues empirically demonstrated to help materially reduce the appearance of illegitimate sites in the top search rankings
“I could read that again, because you would probably need to hear it again to have the faintest idea what we are talking about,” he said.
“I fear that it smacks of either a lowest common denominator approach or some hard arm-wrestling in the corridors where the discussion took place to get something that looks reasonable on paper.
“It does not smack of a real commitment to scourge out the terrible way in which search engines have referred people who should have known better to material that was not cleared for copyright and should not have been made available to them through that route.”
While Lord Stevenson clearly wasn’t happy, he did reveal some more information on how the code will be managed.
The Minister of State for Intellectual Property will oversee its implementation, supported by quarterly meetings of all parties involved. The Minister will also “set requirements for reporting by search engines and rights holders on any matter herein, including in particular those matters where the Code of Practice calls for ongoing discussion.”
Then, after a year of operation, the effectiveness of the code will be reviewed to ensure “continuing progress towards achieving the Shared Objectives.”
What those objectives are will remain a mystery, however. In response to Lord Stevenson’s request to see a copy of the code, Baroness Buscombe said that wouldn’t be possible.
“We do not plan to publish the code in full because details about the number of copyright infringement reports a site can receive before it is demoted might allow pirates to game the system. We are, however, very happy to share the commitments in the code in more general terms,” she said.
Baroness Buscombe went on to ask for the amendment to be dropped and that was followed by a spirited response from Lord Stevenson.
“I cannot see this agreement lasting and believe that there will have to be a backstop power at some stage,” he said.
“At the moment, it is a ‘large copyright holders against large search engines’ agreement, and on that level it might operate. I do not think it will be effective. I do not think it is sustainable because there will be new people coming in and business models and practices will change — we cannot foresee that.”
And with that the amendment was withdrawn and with it any chance of forcing search engines into compliance by law for the foreseeable future. Only time will tell how things will play out but as the wording of the paragraph cited by Lord Stevenson shows, there is plenty of room for manoever.