The controversial Digital Economy Bill received royal assent on the eve of the recent general election. Now the Digital Economy Act 2010, much of it relates to public service broadcasting and content, network infrastructure, mobile spectrum and online security and safety. However, the Act also includes provisions aimed at the prevention of online copyright infringement, particularly illegal file sharing.
It may take time for some provisions relating to copyright infringement to take effect.
The Act relies on the UK telecommunications regulator, OFCOM, to draw up an initial code of obligations for ISPs and copyright owners. The first draft code has now been published, and consultation is open until 30 July. Following consultation, the code is subject to the approval of both the UK Government and the European Commission, who must be persuaded that powers under the Act are exercised consistently with human rights obligations and European legislation.
The draft code sets out how and when ISPs covered by the code will send out notifications (warning letters) to their subscribers informing them of allegations that their accounts have been used for unlawful file sharing activity. Subscribers will receive three notifications before further action can be taken.
The code further proposes that prior to submitting any copyright infringement reports to ISPs, copyright holders will be required to provide details about the systems and processes they will use to obtain information about suspected copyright infringement.
The code gives subscribers a right of appeal although the details of this are vague and it is likely that subscribers will be required to contribute towards the cost of this.
It is expected that the code will take effect from January 2011. It must then be implemented for a period of at least 12 months during which time OFCOM will monitor and report on the extent of online copyright infringement, whether copyright owners are making their content legally available, and the number of copyright infringement reports issued. The Government anticipates that initial measures set out in the code may be sufficient to address the issue of copyright infringement. If they do not, the Government may implement further powers which would involve ordering ISPs to take technical measures such as account suspension, site blocking or bandwidth reduction against persistent offenders.
The initial draft of the code has already been heavily criticised by the larger ISPs to whom it will apply. Any ISP with fewer than 400,000 subscribers will initially be exempt from the obligations set out in the Act to notify and record details of suspected copyright infringers. The larger ISPs are concerned that they might lose subscribers to smaller ISPs and mobile operators in order to avoid any accusation of copyright infringement.
Further controversy surrounds the rights of subscribers accused of copyright to appeal, and the fact that wrongly accused subscribers could be forced to contribute towards the cost of their appeals.
A number of consumer rights groups have already joined together to produce a set of principles in response to the initial code, in an attempt to ensure that consumers are not treated unfairly upon the implementation of the code.