History of the Act
The Act's origins begin the the Gowers Review which, among other things, recommended action to reduce online copyright infringement. While the positive aspects of Gowers, such as increased flexibility in Copyright languished, pressure from industry lobby groups such as the BPI and UK Music meant that consultations began in order to push forward possible means to target individual users for alleged copyright infringement.
Implementation has been exceedingly slow. Initially, Ofcom, who are charged with implementation, were predicting a 2011 start, and produced draft codes in mid 2010, with summer consultations. A Judicial Review of the Act in the Autumn delayed further implementation. Appeals lasted until 2012, and finally narrowed the costs that can be applied to ISPs, especially in relation to the cost of DEA appeals.
Finally, codes produced by Ofcom have had to be referred back, for being faulty, and then, the Costs Order was rumoured to be delayed by the Treasury who were worried about costs being paid by the taxpayer.
By 2015 the policy appeared to be for the copyright owners to pursue the VCAP process, with the potential threat of bringing the DEA provisions back to the table if no satisfactory agreement could be reached.
BT and TalkTalk Challenge
- Costs imposed on ISPs
- Compatibility with EU legislation, such as PECR and data protection
- Lack of notification under the Technical Standards Directive, particularly that the measures should have been shown to the EU Commission and member states to examine its compatibility with EU legislation
A fourth ground was added, proportionality.
The JR failed but BT and TalkTalk appealed twice, unsuccessfully.
The Act is in force, but requires statutory instruments to put the measures into effect. Firstly, an order to apportion costs is required. Secondly, an order would put in place the stage one letter writing and court action process.
Delay in implementation have lead copyright owners to call for a voluntary copyright alert programme to be implemented by ISPs.
Stage One: Initial Obligations Code
After the letter writing process is in place, after a year, Ofcom must report on the efficacy of the measures. If they are not effective, according to ofcom or other evidence, the minister responsible can ask Ofcom to draft an order to put in place the stage two process, “Technical Measures”.
Stage Two: Technical Measures
Technical measures can include undefined periods of disconnection (“account suspension”), throttling and site blocking. Such measures would be aimed at the account holder.
Website blocking powers
Additional powers to block websites for copyright infringing activities were removed by the Deregulation Act 2015.
Other copyright injunction powers exist in the Copyright, Designs and Patents Act 1988 which have been used extensively instead. The existence of these powers was one of the arguments employed against these provisions when the Bill was discussed.
Powers over domain registries
Sections 19-21 amend the Communications Act 2003 to give the Secretary of state powers to intervene when “a serious relevant failure in relation to a qualifying internet domain registry is taking place or has taken place”.
This applies to Nominet, as a registry concerned with .uk domains and other domains related to the UK.
A “relevant failure” is one that adversely affects “the reputation or availability of electronic communications networks or electronic communications services provided in the United Kingdom or a part of the United Kingdom, or … the interests of consumers or members of the public”.
When such a failure takes place, the Secretary of State can appoint a new Registrar (section 124P of the Communications Act 2003 as amended).
Information about the Act
- Digital Economy Act 2017
- EDM 1913
- Category:Digital Economy Bill: Voted No
- Category:Digital Economy Bill: Voted Aye
- TalkTalk grounds
- ORG blog
- Section 17 Power to make provision about injunctions preventing access to locations on the internet and Section 18 removed by Section 56 of the Deregulation Act 2015
- Digital Economy Act 2010, s19-21, legislation.gov.uk