After much controversy and criticism, the Digital Economy bill has now made it into law, having been passed through the legislative 'wash-up' procedure that preceded the dissolution of the Government. However, the anti-piracy measures imposing obligations on ISPs are of little use to anyone until Ofcom draws up the code that will dictate how they work, and this process will not commence until after the General Election – and may not finish until the end of the year, or early in the next.

ISPs to notify subscribers

  • The main scheme introduced by the Act remains largely unchanged from when we reported it here and here: ISPs will be obliged to react to copyright infringement reports from rightsholders – containing evidence that a user has engaged in piracy in some form – by notifying the relevant users of the reports. ISPs will effectively have to pass on written warnings to their subscribers encouraging them to access material lawfully rather than infringe. The ISPs will need to maintain anonymised user-by-user records of their notifications, so as to assist rightsholders in identifying serial offenders, against which the rightsholders can take further action (once they have obtained a court order for a particular user's identity).
  • This scheme will not commence until the industry – or failing that Ofcom – has drawn up a Code setting out in detail how it will work. Work on this will not start until after the general election and is unlikely to be complete until late 2010 or early 2011.  

Sanctions against internet users may follow – but later

  • The next step is to order ISPs to impose technical measures on infringing users, such as throttling their bandwidth or, in the extreme, suspending a user's service. While these sanctions are one of the most controversial aspects of the Act, the earliest they would be seen is over 12 months from when the Code comes into force – which would be around Spring 2012. Ofcom must also first assess whether such measures are needed, although the Secretary of State will make the ultimate decision on introducing them, subject to approval by both Houses of Parliament.
  • Users will have rights of appeal to an independent tribunal against both copyright infringement reports of which they are notified and against any technical measures imposed upon them. If an ISP fails to comply with a technical measure (which at least one major ISP has indicated publicly it would do if instructed to impose them) it could be fined up to £250,000.  

Blocking injunctions a further possibility

  • The most uncertain and fiercely opposed provision in the Act is the power of the Secretary of State to "make provision about the granting by a court of a blocking injunction", requiring ISPs to block access to websites used in connection with the infringement of copyright. It is a rather widely drafted provision and it is quite uncertain what will be done with it. Although any provision will require a 60 day review period and approval of Parliament before it comes into force, there will not need to be full scrutiny of such provision as is usually the case with primary legislation.  

Other measures in the Act

  • The penalty for online and physical copyright infringements under the Copyright, Designs and Patents Act has been increased to a maximum of £50,000, up from £5,000. The Act also makes changes to a number of areas of media regulation, such as the management of the internet domain registry, the functions of Channel 4 television, the licensing of television and radio services, and the classification of video games.  

Comment

  • It will not help that one of the most controversial changes to intellectual property law in recent times has been pushed through at the end of the current Parliament, particularly given the last minute addition of reference to blocking injunctions, which have not been (like much of the other provisions) subject to a lengthy consultation process over the last few years. It is also unhelpful to all sides that until the Code is drawn up, no one will know how these provisions will work in practice.
  • Rightsholders will be relieved that there is now a new scheme for combating online piracy on the statute book. The key to the success of the notification and sanction regime – which is to operate as a stick – is for it to work alongside a few carrots, namely new business models – with a view to weaning stubborn consumers off illegitimate free material and onto fairly priced licensed content. What the Act is unlikely to do is to have a huge effect on dedicated internet pirates, who will be adept at circumventing technical measures and hiding their identities. However, as we have seen in recent weeks, the UK Courts are prepared to find internet service providers liable for the infringements of copyright committed by their users (see our Newsflash on the NewzBin case of 31 March 2010). If we ever see any blocking injunctions, these may go a little further to solving that problem.