Ofcom has closed a further consultation on its draft “Initial Obligations Code” (the “Code”), expected to be in force by January 2013. The Code implements the copyright infringement provisions of the Digital Economy Act 2010 (DEA). Ofcom has also provided some clarification of the extent to which Libraries and Higher Education Institutions will be affected by the DEA.

The Code places obligations on qualifying Internet Service Providers (ISPs) and recipients of their internet services (“subscribers”). Ofcom has confirmed that ISPs will only be “qualifying” if they have more than 400,000 “broadband enabled lines”. 7 commercial ISPs are expected to fall within this definition, though Ofcom does not rule out the prospect of reducing the threshold in future.

However, HEIs and libraries could be affected by the provisions relating to subscribers (which they may be deemed to be).

If a copyright owner detects an apparent copyright infringement by a subscriber, the Code entitles the owner to send a Copyright Infringement Report (CIR) to the ISP. In turn, the ISP must notify its subscriber of the CIR. A subscriber can appeal within 20 working days of receipt. An appeal can -for example- be founded on the basis that the recipient did not itself infringe, but took reasonable steps to prevent infringement by users of its internet access service.

If a subscriber is identified in 3 CIRs within a 12 month period, it can be placed on the ISP’s “Copyright Infringement List” (CIL), which can also be viewed by the copyright owner.

Whilst subscribers’ details on the CIL will be anonymous, if the copyright owner has sufficient evidence, it may seek a court order requiring the ISP to reveal the subscriber’s identity, and then take further enforcement action.

The DEA also gives the Secretary of State power to require ISPs to withdraw or restrict internet services to subscribers identified on CILs. However, this power can only be implemented 12 months after the Code is in force.

Given the number of potential end users accessing the internet via library or HEI Wi-Fi connections, it will therefore be particularly important to act quickly if a CIR is received by an HEI or library.

The Chartered Institute of Library and Information Professionals has issued a press release and guidance, and encourages institutions to take active measures to reduce the potential risk, such as seeking advance assurances from their ISP that they will not be treated as subscribers for DEA purposes.