Digital Economy Act 2010/Initial Obligations Code

The section of the Digital Economy Act which obliges ISPs to send warning letters to subscribers accused of violating copyright is not due to be introduced until the latter part of 2015

Consultation

A consultation document regarding the Initial Obligations Code for the Digital Economy Act was published by Ofcom on Tuesday, 26th June 2012. The closing date for responses to the consultation is one-month later on Thursday 26th July.

An html version of the draft order can be seen at /Draft.

Overview

• Code applies to ISPs with over 400,000 customers. (Currently BT Retail, Virgin Media, TalkTalk, Sky, Everything Everywhere, Telefonica UK, Post Office) [2(1)(a)]
• Code only applies to "fixed internet access services" - conveyed by wire, cable, fibre etc to the subscriber's address. Mobile data, wireless, and satellite services are exempted from the code.
• Copyright holders must pre-estimate the number of Copyright Infringement Reports (CIRs) they will send to an ISP within a notification period [4(3)]. They must, in advance, pay a fee (set by OFCOM) multiplied by the estimated number of CIRs to each ISP [34(2)]. The fees for any 'unused' CIRs are 'rolled over' to the next notification period [34(3)].
• CIRs must include details of the copyright holder and of the copyrighted work, including the title and nature of the work. Additionally, the report must detail the time and date of the the apparent infringement and evidence gathered concerning the IP address, port, protocol etc used to enable the alleged infringement [5(1)]. The CIRs must be sent to the ISP responsible for the allegedly infringing IP address within one month of the day the evidence was gathered [4(5)].
• If the copyright holder has exceeded the estimated number of CIRs in any notification period, the ISP may reject further CIRs from that copyright holder for the remainder of the notification period [18(g)].
• If the copyright holder has not paid in full fees due to the ISP for that notification period, the ISP may reject any CIRs sent until those fees are paid [18(h)].
• Households of accused violators will be sent three letters by first class post [15], at least one month apart [12(a)(iii)(b), 13(b)], informing them of CIRs sent to the ISP. The evidence collected by the copyright holder must be collected no earlier than twenty days from the date on which the previous notification was sent [12(a)(iii)(c), 13(c)]. The month's 'grace' between each is to enable the subscriber sufficient time to change their habits or to better secure their networks. The letters must include a copy of the CIR sent to the ISP [16(1)(c)], inform the recipient of their right to appeal [16(1)(h)], and include tips as to how to secure their network from unauthorised use [16(1)(g)].
• Those who receive a letter have 20 working days "from receipt" to commence an appeal to the Designated Appeals Body [26(5)].
• The allowable grounds of appeal [25] are:
  • The alleged infringement detailed by the CIR was not an infringement of copyright; or
  • The IP address contained within the CIR did not relate to the appellant at the time of the alleged infringement; or
  • The alleged infringement was not done by the appellant, and the appellant took "reasonable steps" to ensure that others did not infringe copyright by means of their internet connection; or
  • There was a contravention of the Initial Obligations Code or an obligation regulated by the Code, by either the copyright holder or ISP.
• Those appealing against any of the CIRs must pay a £20 administration fee, refundable if they succeed [38].
• At the appeal:
  • The copyright holder must show there was an infringement of copyright [29(1)(a)], and the ISP must show that the CIR related to the appellant's IP address at the time of the alleged infringement [29(1)(b)].
  • The burden of proof then shifts to the appellant, who must show that the act of infringement was not done by them [29(2)(a)], and that they took "reasonable steps" to ensure that others did not infringe copyright by means of the internet access made available by the appellant [29(2)(b)].
• If, within a period of twelve months, three such CIRs relating to one subscriber are sent to an ISP, their details are moved onto a Copyright Infringement List (CIL) [19(6)].
• No more than once each month [19(5)], copyright holders may request a copy of the anonymised CIL from each ISP, going back no more than 12 months from the date of request [19(4)].
• From these CILs, copyright holders will be able to use a Norwich Pharmacal Order to request the details from ISPs of subscribers whom they select from the CIL. This will enable them to commence legal proceedings against those whom they choose from the CILs.

Potential issues

• There is a real possibility of abuse of the Code by copyright holders. Although they must pre-estimate the number of CIRs expected to be sent in any notification period [4(3)], there is little to Norwich Pharmacal Order prevent them from greatly exaggerating the expected total. The requirement to pay a fee to the ISP for each expected CIR [34(2)] is no safeguard against abuse, as any 'unused' CIRs at the end of each period roll over to the next [34(3)]. This renders the safeguard impotent, and will distort the field: more wealthy copyright holders will be able to 'cycle' funds, allowing themselves large numbers of CIRs at little expense, whilst smaller holders will lack access to the capital necessary to do the same.
  • The copyright holders are not required to justify the estimates they provide.
• The distinction between 'wired' and 'wireless' internet provision is logistically sensible - yet means that the strength of the Code is drastically weakened.
• The window of appeal - twenty working days - is worryingly small.
  • The correct interpretation of "receives details" is not provided within the Code - does this mean 'delivered to the household', or 'seen by the named person'? Any delay in the post - or an inconveniently timed fortnight holiday - reduces the subscriber's window of appeal to an unjust period.
  • The letters are now to be sent by first class post - how will the Designated Appeals Body know when the twenty working days commences and expires?
  • The correct approach for any subscriber would be to seek independent legal advice before responding. Is twenty working days sufficient?
• The requirement for an appellant to pay a £20 appeal fee is unjust, even if it is returned should the appellant be successful.
• In an appeal, the copyright holder and ISP must merely demonstrate the infringement originated from the appellant's internet account. After this threshold is passed, the 'reversed burden' under [29(2)] means that to avoid the appeal failing, the appellant must show that they were not responsible for the infringement nor authorised another to use their account to do so. The requirement for an appellant to prove he did not do something, rather than for the copyright holder to prove he did do something, is unjust: how is an appellant to show that he did not do the act?
  • What constitutes "reasonable steps", as a defence under [29(2)(a)] for one appellant will not constitute reasonable steps for another - it depends on the level of knowledge and technical ability of the appellant. There is thus no certainty in the code for a consumer wishing to avoid liability.

Implementation

Originally expected to begin in 2011, the timetable for implementation has been pushed back several times to 2014 and later to 2015.

Media

• Internet piracy appeal fee challenged by Consumer Focus, BBC, 2012-06-26
• Ofcom outlines new anti-piracy rules, Guardian, 2012-06-26
• Ofcom presses ahead with Digital Economy Act piracy crackdown, Telegraph, 2012-06-26

Notes

• http://www.culture.gov.uk/news/media_releases/9160.aspx