Ofcom is consulting on a draft code of practice to underpin the initial obligations imposed on internet service providers (ISPs) by the Digital Economy Act 2010 (the Act) to reduce online copyright infringement.
The Act requires ISPs to notify their subscribers if their internet protocol addresses are reported by copyright owners as being used to infringe copyright. Any such copyright infringement reports delivered by copyright owners must contain evidence that the subscriber has engaged in copyright infringement of some kind. The Act also requires ISPs to provide copyright owners with copyright infringement lists of subscribers that have triggered infringement reports exceeding a certain threshold (on an anonymous basis). These lists are intended to assist copyright owners in identifying serial offenders and in taking further action once a court order is obtained against a particular subscriber.
The draft code sets out the detail of how this scheme will work, including how and when ISPs need to send notifications to their subscribers and the content of such notifications. Having considered three options for notification and escalation procedures (by volume of infringement reports received, by behaviour of subscribers over time, and by the cost of copyright infringements), Ofcom has proposed an approach based on subscriber behaviour. Broadly, the first notification will be triggered by the first infringement report received relating to a subscriber, and subsequent notifications will be sent for each infringement report received at least a month following the previous infringement report. A subscriber may then be included on an infringement list where that subscriber has received three notifications within a year and where the copyright owner requesting the list has sent at least one of those infringement reports.
The draft code proposes to establish an independent, robust subscriber appeals mechanism for subscribers that believe they have incorrectly received a notification and anticipates arrangements for enforcement, dealing with industry disputes and information gathering.
The obligations imposed on ISPs under the Act are stated to apply to all ISPs except those demonstrating a very low level of online copyright infringement. Ofcom does not currently have any infringement report data on which to set an infringement report-based threshold for qualifying ISPs and has instead proposed that the draft code will only initially apply to fixed-line ISPs with over 400,000 subscribers, comprising the UK's 7 largest ISPs: BT, Talk Talk, Virgin Media, Sky, Orange, O2 and the Post Office. Ofcom intends to review evidence of online copyright infringement and may extend the application of the code if appropriate.
The consultation on the draft code closes on 30 July 2010 and is the first in a series of three consultations Ofcom intends to issue this year in relation the Act (subsequent consultations will cover enforcement of the code and cost sharing).