The Digital Economy Bill (DEB) was introduced into the House of Lords on 19 November 2009. Among the legislative measures contained in the DEB, it provides the legal basis for the UK Government's anti-file-sharing and online piracy strategy.

OVERVIEW OF ISPS' OBLIGATIONS

The DEB will introduce new sections into the Communications Act 2003 imposing obligations on internet service providers (ISPs) known as "initial obligations". The first obligation is to notify subscribers if the ISP receives a copyright infringement report (CIR) about the IP address associated with the subscriber from a copyright owner. The notification from the ISP must inform the subscriber that the account appears to have been used to infringe copyright, and it must provide evidence of the apparent infringement, direct the consumer towards legal sources of content and provide other advice.

The second requires ISPs to keep a record of the number of CIRs linked to each subscriber and compile, on an anonymous basis, a list of some or all of those who are reported on. After obtaining a court order to obtain personal details, rights owners will then be able to take action against those included in the list. Explanatory notes to the DEB state that the intention is for the code to set out a threshold number of CIRs, for example 50, above which a subscriber will be considered a serious repeat infringer.

These obligations will be underpinned by a code either approved by Ofcom (Office of Communications: the independent regulator and competition authority for the communications industry) or, if no industry code is put forward for approval, made by Ofcom and the initial obligations will not have effect until there is a complementary code in force. The code will set out in detail how the obligations must be met, such as a process by which infringements are detected, the standard of evidence that the copyright owner must meet before an ISP must send a notification, the format of CIRs, and the routes of appeal for subscribers.

Should these initial obligations prove insufficient to reduce significantly online copyright infringement, the DEB also grants the Secretary of State the power to impose further obligations known as "technical obligations" on ISPs, requiring them to take measures to limit internet access to certain subscribers. These technical measures, which will be used against serious repeat infringers only, will be likely to include bandwidth capping or shaping and suspending the service provided to the subscriber. In relation to these technical measures, Ofcom is also required under the DEB to prepare a code setting out the procedural mechanisms to give effect to the obligations on ISPs.

Penalties that may be imposed on an ISP for the contravention of its initial obligations or obligation to impose technical measures are specified as a maximum of £250,000.

The DEB also requires appeals processes to be set up as part of the underpinning codes. These include the right to appeal decisions of ISPs to impose technical measures before a person independent of Ofcom, with a further right of appeal to the First-tier Tribunal.

COMMENT

Not surprisingly, major rights holders have welcomed the DEB. The British Recorded Music Industry (BPI) has described the introduction of the DEB as "an important milestone towards a sustainable future for British music in the digital age".