Digital Economy Act 2010/Initial Obligations Code/Draft

(Draft of Initial Obligations Code from http://stakeholders.ofcom.org.uk/binaries/consultations/online-notice/summary/notice.pdf )

The Online Infringement of Copyright (Initial Obligations Code)

The Office of Communications (“OFCOM”), in exercise of the powers conferred by sections 124D(1), (4) and (5) and 403(7) of the Communications Act 2003 (“the Act”)(a), make the following Order.

OFCOM have given notice of their proposal to do so in accordance with section 403(4)(a) of the Act, published notice of their proposal in accordance with section 403(4)(b) of the Act and have considered the representations made to them before the time specified in the notice in accordance with section 403(4)(c) of the Act. As required by section 124D(6) of the Act, OFCOM are satisfied that this Order meets the criteria set out in section 124E of the Act.

As required by section 124D(8) of the Act, the Secretary of State has given his consent for the making of this Order by OFCOM.

Citation and commencement

1. This Order may be cited as the Online Infringement of Copyright (Initial Obligations Code) Order 2012 and comes into force on [ ].

Initial Obligations Code

2. The Code set out in the Schedule to this Order has effect for the purposes of regulating the initial obligations(b).

Part 1: Interpretation

1. In this Code—

“the Act” means the Communications Act 2003;

“appeals body” means [ ]

“appeals procedures” means the procedures to be established by the appeals body under paragraph 21(1);

“broadband enabled line” means an electronic communications connection capable of supporting internet access services(a) with high data transfer speeds;

“Code” means the provisions contained in this Schedule;

“confidential information” means information which relates specifically to the business or other affairs of a qualifying copyright owner or qualifying ISP, the disclosure of which might seriously and prejudicially affect the interests of the owner or provider to which it relates;

“estimate” means the number of copyright infringement reports(b) which a copyright owner(c) estimates it will make to a qualifying ISP in a notification period;

“final enforcement notice” means a notice given under paragraph 41(2);

“first notification period” means the period beginning with a day determined by OFCOM(d) accordance with this Code and ending on 31st March 2015 or 31st March 2016 as determined by OFCOM;

“fixed internet access service” means an internet access service conveyed by wire, cable, fibre or other material substance to the subscriber’s address;

“fixed internet service provider” means an internet service provider(e) that provides a fixed internet access service;

“fixed subscriber”, means a subscriber(f) who receives a fixed internet access service;

“further infringement list notification” means the notification sent under paragraph 14;

“group” has the meaning given in section 1261 of the Companies Act 2006(g);

“infringement list notification” means the notification sent under paragraph 13;

“initial costs” means the qualifying costs incurred prior to the start of the first notification period including any such costs incurred prior to the making of this Code;

“notice of contravention” means a notice given under paragraph 40;

“notice of subscriber appeal” means a notice sent by a subscriber to the appeals body as prescribed by the appeals procedures;

“notification fee” means a fee set in accordance with paragraph 33 for each copyright infringement report which a qualifying copyright owner estimates it will make to a qualifying ISP under this Code during the notification period;

“notification period” means—

(a) the first notification period; or

(b) any subsequent period of twelve months beginning on 1st April;

“port number” means the number associated with a data channel used by an internet or other networked software application for the purposes of data transmission;

“qualifying copyright owner” has the meaning given in paragraph 2(5);

“qualifying costs” means the costs incurred by OFCOM or the appeals body in carrying out functions under the relevant copyright infringement provisions including costs incurred by OFCOM under those provisions in appointing the appeals body or in establishing a body corporate to be the appeals body but excluding costs incurred by the appeals body to the extent they are recoverable from fees payable to the appeals body under paragraphs 37 and 38;

“qualifying entities” means qualifying ISPs and qualifying copyright owners;

“qualifying ISP” has the meaning given in paragraph 2(2);

“relevant copyright infringement provisions” means the copyright infringement provisions(a) but not the provisions in sections 124H to 124M of the Act to the extent that they relate to technical obligations(b) or a technical obligations code(c);

“relevant costs” means costs which would be reasonably and efficiently incurred by a notional qualifying ISP in carrying out its obligations under the relevant copyright infringement provisions;

“relevant fixed subscriber” has the meaning given in paragraph 19(6);

“subscriber’s address” means an address specified in an agreement between the subscriber and the internet access provider as a location at which the internet access service is provided;

“subscriber fee” means the fee payable by a subscriber under paragraph 38(1);

“working day” means any day except a Saturday, Sunday, a public holiday in England and Wales or a day which, under the Banking and Financial Dealings Act 1971(d), is a bank holiday in Scotland.

Part 2: Application of the Code

Qualifying internet service providers and qualifying copyright owners

2.—(1) This Code applies to an internet service provider if—

(a) it provides fixed internet access services over more than four hundred thousand broadband enabled lines in the United Kingdom; or

(b) it is a fixed internet service provider within a group that provides fixed internet access services over more than four hundred thousand broadband lines in the United Kingdom.

(2) An internet service provider falling within the description in sub-paragraph (1) is defined as a “qualifying ISP”.

(3) OFCOM shall publish a list of each qualifying ISP.

(4) This Code also applies to a copyright owner which has—

(a) established an estimate in relation to a notification period; and

(b) provided that estimate to the qualifying ISP and to OFCOM in accordance with this Code.

(5) A copyright owner which falling within the description in sub-paragraph (4) is defined as a “qualifying copyright owner”.

(6) If a qualifying ISP has met the conditions in sub-paragraph (1)(a) or (b) but subsequently during a notification period ceases to do so, the rights and obligations of the Code shall continue to apply to it during that notification period and in the notification period which immediately follows it.

Contractors

3. Where a qualifying ISP contracts with another person for the provision of fixed internet access services to that qualifying ISP’s fixed subscribers, the qualifying ISP must process any copyright infringement reports received by that person or ensure that any such reports are processed on its behalf in accordance with this Code.

Part 3: Copyright Infringement Reports

Issue of copyright infringement reports

4.—(1) If a qualifying copyright owner wishes to send a copyright infringement report it must comply with the provisions of this Code.

(2) A qualifying copyright owner may only send a copyright infringement report to a qualifying ISP during a notification period if it complies with each of the two requirements in this paragraph.

(3) The first requirement is that—

(a) it has established an estimate in relation to that qualifying ISP and that notification period; and

(b) that estimate was provided to the qualifying ISP and to OFCOM in writing at least two months before the beginning of the notification period to which it relates, except in the case of the first notification period, when it must be so provided before such day as OFCOM may determine.

(4) The second requirement is that the qualifying copyright owner holds evidence gathered in accordance with procedures approved by OFCOM under paragraph 6 which gives reasonable grounds to believe that—

(a) a subscriber to an internet access service has infringed the owner’s copyright by means of the service; or

(b) a subscriber to an internet access service has allowed another person to use the service, and that other person has infringed the owner’s copyright by means of the service.

(5) A copyright infringement report made under sub-paragraph (1) must be sent to a qualifying ISP within the period of one month beginning with the day on which the evidence of the apparent infringement was gathered.

(6) A qualifying copyright owner must—

(a) send a copyright infringement report under this Code—

(i) by electronic means;

(ii) in a data format that the qualifying ISP can use to transfer that data electronically onto its electronic databases;

(b) present the information required under paragraph 5 in a uniform format in every copyright infringement report it sends.

Content of copyright infringement report

5.—(1) A copyright infringement report must include—

(a) the name and address of the qualifying copyright owner;

(b) if the qualifying copyright owner is a person falling within the description in paragraph (b) in the definition of copyright owner in section 124N of the Act, the name and address of the person on whose behalf the qualifying copyright owner is authorised to act and evidence of authorisation;

(c) an identification of the copyright work(a) including the title of the work and a description of the nature of the work;

(d) a statement that there appears to have been an infringement of the copyright in the copyright work;

(e) a description of the apparent infringement(b) and the evidence gathered of that apparent infringement, including information which would enable the subscriber to identify the means used to obtain evidence of the infringement of the copyright work;

(f) a statement that no consent has been given by the owner of the copyright in the copyright work for the act giving rise to the apparent infringement;

(g) the start time and end time and date of the online session (using Coordinated Universal Time) during which evidence of the apparent infringement was gathered;

(h) the day on which the copyright owner believes the apparent infringement to have taken place;

(i) the IP address(c) associated with the apparent infringement;

(j) the relevant port numbers used to conduct the apparent infringement;

(k) the website, protocol, application, online location, internet-based service or internet-based system through which the apparent infringement occurred;

(l) a unique numerical identifier allocated to the copyright infringement report by the qualifying copyright owner;

(m) the date and time of issue of the copyright infringement report.

Procedures and reports

6.—(1) A qualifying copyright owner must establish and follow procedures for gathering and verifying evidence of copyright infringement which have been approved by OFCOM.

(2) Before the day on which a notification period begins, a qualifying copyright owner must give to OFCOM for approval a report providing details of—

(a) the procedures;

(b) the systems introduced by the qualifying copyright owner to ensure the application of these procedures in each case;

(c) if these systems include a regular audit or monitoring exercise, a description of these and the intervals at which they will occur; and

(d) any changes made by the qualifying copyright owner to these procedures and systems during the current notification period.

(3) A report given to OFCOM must be published by the qualifying copyright owner as soon as is reasonably practicable following delivery of the report to OFCOM in such manner as is appropriate to bring it to the attention of subscribers and internet service providers.

(4) A qualifying copyright owner may exclude confidential information from a report published pursuant to sub-paragraph (3).

(5) In deciding whether to approve the report, OFCOM must consider whether evidence gathered under the procedures and systems described will give reasonable grounds to believe that—

(a) a subscriber to an internet access service has infringed the owner’s copyright by means of the service; or

(b) a subscriber to an internet access service has allowed another person to use the service, and that other person has infringed the owner’s copyright by means of the service.

Processing of copyright infringement reports

7. Where a qualifying ISP has received a copyright infringement report from a qualifying copyright owner, it must send an acknowledgement of receipt as soon as reasonably practicable to the qualifying copyright owner.

Part 4: Identification of fixed subscribers

Identification

8.—(1) Except where any of the circumstances listed in paragraph 18 exist, a qualifying ISP in receipt of a copyright infringement report must identify the fixed subscriber to which the IP address related at the time when the apparent infringement detailed in the copyright infringement report took place.

(2) Where any of the circumstances listed in paragraph 18 exist, the qualifying ISP must inform the qualifying copyright owner which issued the copyright infringement report as soon as reasonably practicable and in any event within the period of ten working days beginning with the day of receipt of the copyright infringement report and—

(a) specify which of the matters listed in paragraph 18 are relied upon by the qualifying ISP; and

(b) if paragraph 18(b) is relied on because the IP address contained in the copyright infringement report was allocated by the qualifying ISP to another internet service provider at the time of the apparent infringement, include the identity of the other internet service provider to whom the IP address is allocated.

Procedures and reports

9.—(1) A qualifying ISP must establish and follow procedures for the accurate identification of fixed subscribers which have been given to OFCOM.

(2) Before the day on which a notification period begins, a qualifying ISP must give OFCOM a report in respect of that notification period which includes—

(a) the procedures;

(b) the systems introduced by the provider to ensure the application of these procedures in each case;

(c) if these systems include a regular audit or monitoring exercise, a description of these and the intervals at which they will occur; and

(d) any changes made by provider to these procedures and systems during the current notification period.

(3) Any report given to OFCOM in accordance with sub-paragraph (2) must be published by the qualifying ISP as soon as is reasonably practicable following delivery of the report to OFCOM in such manner as is appropriate to bring it to the attention of subscribers and copyright owners.

(4) A qualifying ISP may exclude any confidential information from a report published pursuant to sub-paragraph (3).

Part 5: Notification of fixed subscribers

Current copyright infringement reports

10. For the purposes of this Part and Part 6, a copyright infringement report is current only for the period of twelve months beginning with the day on which it was received by the qualifying ISP.

Initial notification

11.—(1) Except where any of the circumstances listed in paragraph 18 exist, a qualifying ISP must send a notification under this paragraph to a fixed subscriber where—

(a) it has received a copyright infringement report relating to an apparent infringement by the fixed subscriber; and

(b) it does not hold another copyright infringement report (relating to an apparent infringement by the fixed subscriber) which is current on the day of sending the notification.

(2) A notification under this paragraph must include—

(a) the information set out in paragraph 16;

(b) a statement that further apparent infringements by the fixed subscriber may lead to the sending of further notifications; and

(c) a statement that the commission of copyright infringement can give rise to a claim before a court by a copyright owner.

Intermediate notification

12.—(1) Except where any of the circumstances listed in paragraph 18 exist, a qualifying ISP must send a notification under this paragraph to a fixed subscriber when it receives a copyright infringement report relating to an apparent infringement by a fixed subscriber (“copyright infringement report x”) and—

(a) on the day of sending the notification—

(i) the fixed subscriber has been sent one (but no more than one) notification under paragraph 11 or this paragraph by that qualifying ISP;

(ii) the copyright infringement report from which that notification resulted is still current; and

(iii) the fixed subscriber has not been sent a notification under paragraph 13 or 14 by that qualifying ISP which resulted from a copyright infringement report which is still current;

(b) copyright infringement report x was received later than the expiry of the period of one month beginning with the day on which the notification referred to at paragraph (a)(i) was sent; and

(c) the day specified as the day on which the evidence of the apparent infringement was gathered in copyright infringement report x is later than the expiry of the period of twenty days beginning with the day on which the notification referred to at paragraph (a)(i) was sent.

(2) A notification under this paragraph must include—

(a) the information set out in paragraph 16;

(b) a statement that it is the second notification sent to the fixed subscriber within twelve months;

(c) a statement that, if further notifications are sent, a copyright infringement list which sets out the copyright infringement reports made by a qualifying copyright owner in relation to the fixed subscriber may be provided to that qualifying copyright owner by the qualifying ISP on request;

(d) a statement that a copyright infringement list will not disclose the identity of the fixed subscriber; and

(e) a statement that a qualifying copyright owner in receipt of a copyright infringement list relating to the fixed subscriber may apply for a court order for disclosure of the identity of the fixed subscriber and may be able to bring a claim before a court against the fixed subscriber in respect of the apparent infringement.

(3) A qualifying ISP may send more than one notification under this paragraph to a fixed subscriber where the conditions in sub-paragraph (1) are met.

Infringement list notification

13.—(1) Except where any of the circumstances listed in paragraph 18 exist, a qualifying ISP must send a notification under this paragraph to a fixed subscriber when it receives a copyright infringement report relating to an apparent infringement by a fixed subscriber (“copyright infringement report y”) and—

(a) on the day of sending the notification—

(i) the fixed subscriber has been sent two (but no more than two) notifications under paragraphs 11 or 12 which resulted from copyright infringement reports which are still current;

(ii) the fixed subscriber has not been sent a notification under this paragraph or paragraph 14 by that qualifying ISP in relation to a copyright infringement report which is still current;

(b) copyright infringement report y was received later than the expiry of the period of one month beginning with the day on which the later of the two notifications referred to at paragraph (a)(i) was sent; and

(c) the day specified as the day on which the evidence of the apparent infringement was gathered in copyright infringement report y is later than the expiry of the period of twenty days beginning with the day on which the later of the two notifications referred to at paragraph (a)(i) was sent.

(2) A notification under this paragraph must include—

(a) the information set out in paragraph 16;

(b) a statement that it is the third notification sent to the fixed subscriber within twelve months;

(c) a statement that a copyright infringement list which sets out the copyright infringement reports made by a qualifying copyright owner in relation to the fixed subscriber may be provided to that qualifying copyright owner by the qualifying ISP on request;

(d) a statement that a copyright infringement list will not disclose the identity of the fixed subscriber; and

(e) a statement that a copyright owner in receipt of a copyright infringement list relating to the fixed subscriber may apply for a court order for disclosure of the identity of the fixed subscriber and may be able to bring a claim before a court against the fixed subscriber in respect of the apparent infringement.

Further infringement list notification

14.—(1) Except where any of the circumstances listed in paragraph 18 exist, a qualifying ISP must send a notification under this paragraph to a fixed subscriber when it receives a copyright infringement report relating to an apparent infringement by the fixed subscriber (“copyright infringement report z”) and—

(a) on the day of sending the notification, the fixed subscriber has been sent by the qualifying ISP an infringement list notification (under paragraph 13), a further infringement list notification (under this paragraph), or both, each as a result of a copyright infringement report which is still current; and

(b) copyright infringement report z was received later than the expiry of the period of three months beginning with the day on which the qualifying ISP last sent a notification under this Part to the fixed subscriber.

(2) A notification under this paragraph must include—

(a) the information set out in paragraph 16;

(b) a statement that the notification has been sent to the fixed subscriber as a result of a further copyright infringement report being received by the qualifying ISP;

(c) a statement that a copyright infringement list which sets out the copyright infringement reports made by a qualifying copyright owner in relation to the fixed subscriber may be provided to that qualifying copyright owner by the qualifying ISP on request;

(d) a statement that a copyright infringement list will not disclose the identity of the fixed subscriber; and

(e) a statement that a copyright owner in receipt of a copyright infringement list relating to the fixed subscriber may apply for a court order for disclosure of the identity of the fixed subscriber and may be able to bring a claim before a court against the fixed subscriber in respect of the apparent infringement.

Service and time of notifications

15. A notification under this Part must be sent by first class post to the fixed subscriber’s postal address within the period of one month beginning with the day on which the qualifying ISP receives the copyright infringement report giving rise to the notification.

Content of notifications

16.—(1) Notifications sent by a qualifying ISP under this Part must be in writing, using the standard form referred to in sub-paragraph (3) which includes—

(a) a statement that the IP address allocated to the fixed subscriber has been identified as relating to an apparent infringement;

(b) a statement that the notification is sent under section 124A(4) of the Act in response to a copyright infringement report;

(c) a copy of the information required by paragraph 5 to be included in the copyright infringement report giving rise to the notification;

(d) information about subscriber appeals(a), the grounds on which they may be made and the process by which a subscriber may appeal;

(e) the number of copyright infringement reports relating to an IP address allocated to the fixed subscriber which the qualifying ISP holds prior to sending the notification;

(f) information about copyright and its purpose, including the ability of a copyright owner to bring a legal action for damages in relation to an infringement;

(g) advice, or information enabling the subscriber to obtain advice, about how to obtain lawful access to copyright works;

(h) advice, or information enabling the subscriber to obtain advice, about steps that the subscriber can take to protect an internet access service from unauthorised use;

(i) a statement that the fixed subscriber has the right to require the production of information, including copyright infringement reports, held in relation to the fixed subscriber by the qualifying ISP for the purposes of the initial obligations or a provision of this Code; and

(j) a statement that the qualifying ISP will, so far as is reasonably practicable, not keep any information it holds in relation to that notification longer than the period of twelve months beginning with the day of receipt of the copyright infringement report giving rise to the notification.

(2) For the purposes of sub-paragraph (1)(h) a qualifying ISP must take into account the suitability of different protection for fixed subscribers in different circumstances.

(3) A qualifying ISP must prepare a standard form for each type of notification specified in this Part, having regard to—

(a) the need to secure that fixed subscribers are able readily to comprehend the information included in a notification;

(b) the need to secure that there is, as far as practicable, consistency between the different types of notification.

Records

17.—(1) Subject to sub-paragraph (3), a qualifying ISP must retain in a secure manner—

(a) each copyright infringement report it receives for the period of twelve months beginning with the day of receipt; and

(b) each notification it sends to a subscriber under this Part for the period of twelve months beginning with the day of receipt of the relevant copyright infringement report.

(2) A qualifying ISP must ensure that, insofar as reasonably practicable, a copyright infringement report and notification retained pursuant to sub-paragraph (1) are not kept for longer than the period of twelve months beginning with the day on which the relevant copyright infringement report was received.

(3) Where any of the circumstances in paragraph 18 apply to a copyright infringement report, the qualifying ISP may destroy that copyright infringement report if it thinks fit prior to the expiry of the period of twelve months beginning with the day of receipt.

Circumstances where notification requirements do not apply

18. The circumstances referred to in paragraphs 8, 11, 12, 13, 14, and 17 are circumstances where—

(a) the copyright infringement report does not meet the requirements of paragraph 5;

(b) the IP address contained in a copyright infringement report was not allocated to the qualifying ISP at the time of the apparent infringement;

(c) the IP address contained in a copyright infringement report was not allocated to a fixed subscriber to enable access to a fixed internet access service;

(d) the subscriber which is the subject of a copyright infringement report is not a fixed subscriber of the qualifying ISP;

(e) the qualifying ISP has not been able to identify the subscriber which is the subject of a copyright infringement report and it is not reasonably practicable for the qualifying ISP to do so;

(f) the qualifying ISP does not hold a postal address for a subscriber which is the subject of a copyright infringement report and it is not reasonably practicable for the qualifying ISP to obtain this information;

(g) the number of copyright infringement reports made by the qualifying copyright owner to the qualifying ISP in the relevant notification period exceeds the estimate;

(h) the qualifying copyright owner has not met its obligation under paragraph 34 to pay the qualifying ISP notification fees in full for the relevant notification period; or

(i) the copyright infringement report was received by the qualifying ISP on a day before the day on which the first notification period begins.

Part 6: Identification of repeat infringers and provision of copyright infringement lists

Provision of copyright infringement lists

19.—(1) A qualifying ISP must provide to a qualifying copyright owner on request a copyright infringement list—

(a) in a data format which the qualifying copyright owner can use to transfer that data electronically onto its electronic databases;

(b) in a form which does not enable any subscriber to be identified;

(c) within the period of ten working days beginning with the day on which the request for the list was received.

(2) Subject to sub-paragraph (3), the qualifying ISP must set out in the copyright infringement list, in relation to each relevant fixed subscriber, which of the copyright infringement reports made by the qualifying copyright owner within such period as the qualifying copyright owner may specify, relate to the subscriber.

(3) The qualifying ISP must exclude from the copyright infringement list copyright infringement reports which are not current on the day the list is made.

(4) The maximum period which the qualifying copyright owner may specify in a request for a copyright infringement list is twelve months.

(5) A qualifying copyright owner may not make a further request for a copyright infringement list to a qualifying ISP within the period of one month beginning with the day of making of such a request to that qualifying ISP.

(6) For the purposes of sub-paragraph (3) a relevant fixed subscriber is a fixed subscriber which has received an infringement list notification or a further infringement list notification from the qualifying ISP as a result of a copyright infringement report which is current on the day on which the copyright infringement list is made.

Part 7: Appeals Body

Designated Appeals Body

20. [ ] is the appeals body with the function of determining subscriber appeals.

Appeals Procedures

21.—(1) The appeals body must establish procedures for the determination of subscriber appeals.

(2) Before giving effect to the appeals procedures, the appeals body must submit those procedures to OFCOM for approval.

(3) Before granting their approval, OFCOM may direct the appeals body to make amendments to the appeals procedures.

(4) The appeals body must publish any procedures approved by OFCOM as soon as reasonably practicable following approval by OFCOM.

(5) The appeals procedures must set out requirements as to the form and means of service of notices and any other communications which are required to be given in the context of a subscriber appeal.

(6) Without prejudice to paragraph 23(1), the appeals procedures must set out time limits for the submission of any notices or communications required to be given in the context of a subscriber appeal.

Information

22.—(1) OFCOM may require the appeals body to provide them with such information as they consider necessary for the purposes of carrying out their functions under sections 124A to 124L of the Act.

(2) The appeals body may request such information from OFCOM as it considers appropriate for the purposes of carrying out its functions under this Code.

(3) The appeals procedures must include provision pursuant to which the appeals body may require a qualifying copyright owner or qualifying ISP to provide it with such information as it may consider necessary for the purposes of determining a subscriber appeal.

Miscellaneous

23.—(1) The appeals body may extend any time limit set out in Parts 8 and 9 or the appeals procedures in individual cases where it considers it appropriate to do so.

(2) The appeals body must prepare and publish guidance on its approach to the determination of subscriber appeals in advance of the first notification period.

(3) The appeals body may from time to time revise that guidance as it sees fit.

(4) The appeals body must publish a summary of its findings for—

(a) the period of six months beginning with the day on which the first notification period begins; and

(b) each successive period of six months.

(5) The appeals body must ensure that it does not disclose, directly or indirectly, to a copyright owner the identity of a subscriber which has submitted a subscriber appeal without the express written consent of the subscriber.

Part 8 Subscriber Appeals

Right to appeal

24.—(1) A subscriber affected by any act or omission to which this paragraph applies may bring an appeal to the appeals body.

(2) This paragraph applies to the following—

(a) the making of a copyright infringement report;

(b) a notification under any of paragraphs 11, 12, 13 and 14;

(c) the inclusion or potential inclusion of an entry relating to a subscriber on a copyright infringement list; and

(d) any other act or omission in relation to an initial obligation(a) or a provision of this Code. Grounds of appeal

25. The grounds of appeal which may be advanced by a subscriber are that—

(a) the apparent infringement to which a copyright infringement report relates was not an infringement of copyright;

(b) the copyright infringement report did not relate to the subscriber’s IP address at the time of the apparent infringement;

(c) the act constituting the apparent infringement to which a copyright infringement report relates was not done by the subscriber and the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service; or

(d) there was a contravention of this Code or an obligation regulated by this Code by either a qualifying copyright owner or a qualifying ISP.

Notice of subscriber appeal

26.—(1) The appeals procedures must provide for a subscriber appeal to be made by sending a notice of subscriber appeal to the appeals body in the form prescribed by the appeals procedures.

(2) The notice of subscriber appeal must include—

(a) a concise description of the act or omission in relation to which the subscriber is bringing an appeal;

(b) the grounds of appeal;

(c) if relevant, details of any steps taken by the subscriber to prevent other persons infringing copyright by means of the subscriber’s internet access service; and

(d) a statement of truth that the information contained in the notice is true to the best of the subscriber’s knowledge and belief.

(3) A notice of subscriber appeal in relation to a notification under any of paragraphs 11, 12, 13 and 14 must be submitted before the expiry of the period of twenty working days beginning with the day of receipt of the notification by the subscriber.

(4) A notice of subscriber appeal in relation to a copyright infringement report must be submitted before the expiry of the period of twenty working days beginning with the day on which the subscriber receives details of that report.

(5) A notice of subscriber appeal in relation to any other act or omission in relation to an initial obligation or a provision of this Code must be submitted before the expiry of the period of twenty working days beginning with the day on which the subscriber became aware of the act or omission which is the subject of the appeal.

(6) Where a notice of subscriber appeal relates to more than one subscriber appeal, it must be submitted before the earliest day on which an applicable period specified in sub-paragraph (3), (4) or (5) expires.

Proceedings

27.—(1) Within the period of five working days beginning with the day of receipt of a notice of subscriber appeal, the appeals body must send a copy of the notice to the qualifying ISP and the qualifying copyright owner concerned.

(2) Where the appeals body sends a copy of the notice of subscriber appeal to a qualifying copyright owner pursuant to sub-paragraph (1), it must ensure that information which would enable the qualifying copyright owner to identify the subscriber which has submitted the notice is not included in the copy of the notice sent.

(3) The appeals body must inform the qualifying ISP or qualifying copyright owner, as appropriate—

(a) whether it wishes to receive written submissions in relation to the matters raised in the notice of subscriber appeal; and

(b) where the appeals body wishes to receive written submissions, the day by which those submissions must be received by the appeals body.

(4) Any written submissions made by a qualifying copyright owner pursuant to sub-paragraph (3) must include a statement by the qualifying copyright owner or a person authorised by the qualifying copyright owner for such purposes that the information contained in the submissions is true to the best of that person’s knowledge and belief and may include—

(a) evidence that copyright subsists in the copyright work which is the subject of an apparent infringement;

(b) evidence that the qualifying copyright owner is the owner of the copyright in the copyright work or is authorised to act on behalf of a person that owns the copyright in the copyright work;

(c) evidence that the subscriber has infringed copyright in the copyright work, including evidence that the subscriber was not authorised to carry out the act which is the subject of the apparent infringement;

(d) reasons why any of the information referred to in paragraphs (a) to (c) was not provided in the copyright infringement report; and

(e) any additional information specified in the appeals procedures.

(5) Any written submissions made by a qualifying ISP pursuant to sub-paragraph (3) must include a statement by a person authorised by the qualifying ISP for such purposes that the information contained in the submissions is true to the best of that person’s knowledge and belief and may include—

(a) evidence or information relating to the measures taken by the qualifying ISP to identify the subscriber under paragraph 8(1); and

(b) any additional information specified in the appeals procedures.

(6) Where the appeals body has received written submissions from a qualifying copyright owner or a qualifying ISP following a request pursuant to sub-paragraph (3), it must provide a copy of those submissions to the subscriber and must invite the subscriber to submit their own written submissions in response in accordance with the appeals procedures.

(7) The appeals procedures must set out the circumstances when the appeals body may afford any party the opportunity to be heard orally.

Part 9: Determination of Subscriber Appeals

Determination

28.—(1) The appeals body must determine a subscriber appeal(a) in accordance with this Part by upholding or rejecting the appeal.

(2) The appeals body must determine the subscriber appeal by reference to—

(a) the notice of subscriber appeal; and

(b) any written submissions it has received pursuant to paragraph 27.

(3) The appeals body may make a single determination in relation to two or more subscriber appeals within a notice of subscriber appeal.

29.—(1) An appeal on any grounds must be determined in favour of the subscriber unless, as respects any copyright infringement report to which the subscriber appeal relates or by reference to which anything to which the appeal relates was done (or, if there is more than one such report, as respects each of them)—

(a) the qualifying copyright owner shows that the apparent infringement was an infringement of copyright; and

(b) the qualifying ISP shows that the copyright infringement report relates to the subscriber’s IP address at the time of the infringement.

(2) An appeal on any grounds must be determined in favour of the subscriber if the subscriber shows that—

(a) the act constituting the apparent infringement to which the copyright infringement report relates was not done by the subscriber; and

(b) the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service.

Consequential powers of appeals body

30.—(1) Where the appeals body has determined a subscriber appeal in favour of the subscriber, it may also determine what (if any) is the appropriate action for the qualifying copyright owner or qualifying ISP to take, including:

(a) any action to secure so far as practicable that the subscriber is not prejudiced for the purposes of the copyright infringement provisions by any act or omission in respect of which the subscriber appeal has been upheld;

(b) an award of compensation to be paid by a qualifying copyright owner or qualifying ISP to a subscriber affected by an act or omission in respect of which the subscriber appeal has been upheld; and

(c) requiring a qualifying copyright owner or qualifying ISP to reimburse the reasonable costs of the subscriber.

(2) The appeals body must direct the reimbursement of costs under sub-paragraph (1)(c) unless it is satisfied that it would be unjust to do so, having regard to all the circumstances including the conduct of the parties prior to the lodging of a notice of subscriber appeal and during the ensuing proceedings.

Notification of determination

31.—(1) A determination of an appeal in accordance with this Part must be in writing and must include the reasons on which the appeals body has relied in reaching its determination.

(2) Where the determination made by the appeals body requires an amount to be paid by a qualifying copyright owner or a qualifying ISP to the subscriber, the determination must indicate the amount payable and the day by which the amount is due.

(3) The determination of the appeals body must be sent to the subscriber, the qualifying copyright owner and the qualifying ISP in accordance with the appeals procedures.

(4) A qualifying copyright owner or qualifying ISP must comply with any determination made under paragraph 30

(5) A provision of this Code shall not apply to a qualifying copyright owner or a qualifying ISP, as the case may be, in so far as is necessary to avoid a conflict arising between—

(a) the application of that provision; and

(b) action that the qualifying copyright owner or the qualifying ISP is required to take in compliance with a determination under paragraph 30.

Part 10: Sharing of Costs

Determination of first notification period

32.—(1) OFCOM must determine:

(a) the day on which the first notification period begins;

(b) whether the first notification period ends on 31 March 2015 or 31 March 2016; and

(c) the day before which qualifying copyright owners must provide estimates in relation to the first notification period for the purposes of paragraph 2(4)(b).

(2) OFCOM must publish the days set out in sub-paragraph (1) as soon as is practicable following their determination.

Notification fees

33.—(1) OFCOM must set a notification fee.

(2) OFCOM may set different notification fees for copyright infringement reports to be made to different descriptions of internet service providers.

(3) A notification fee set by OFCOM must be based on OFCOM’s estimate of relevant costs. (4) Relevant costs may include the costs of—

(a) receiving a copyright infringement report;

(b) matching the IP address to a subscriber on receipt of a copyright infringement report;

(c) generating and sending a notification of the copyright infringement report under section 124A(4) of the Act to that subscriber;

(d) retaining records of copyright infringement reports and notifications sent to subscribers, for the purposes of section 124B of the Act or if required to do so by this Code;

(e) managing information for the purposes set out in this Code;

(f) compiling and providing copyright infringement lists to copyright owners, pursuant to section 124B of the Act;

(g) handling enquiries from and providing information requested by a subscriber about notifications received by that subscriber;

(h) maintaining appropriate security and access controls for data processed for the purposes set out in this Code to meet the requirements of the Data Protection Act 1998(a); and

(i) monitoring compliance with obligations under the relevant copyright infringement provisions.

(5) Relevant costs must exclude—

(a) costs (or in Scotland, expenses) payable under a Court order;

(b) costs caused by the failure of a qualifying ISP to maintain accurate subscriber records; and

(c) costs of economic opportunities lost as a result of compliance with obligations under the relevant copyright infringement provisions.

(6) In setting the amount OFCOM shall have regard to the desirability of—

(a) promoting efficiency in the exercise of rights and the performance of obligations under the relevant copyright infringement provisions; and

(b) ensuring, as far as practicable, that the notification fees payable by all qualifying copyright owners in a notification period amount to 75% of the total costs incurred by all qualifying ISP calculated on the assumption that the total costs of each qualifying ISP are equal to OFCOM’s estimate of relevant costs.

(7) OFCOM must publish a notification fee they set as soon as practicable.

(8) OFCOM may review a notification fee from time to time and, if they consider appropriate, re-set it in accordance with sub-paragraphs (1) to (6).

(9) OFCOM must publish any revised notification fee as soon as practicable.

(10) A revised notification fee shall take effect from and in relation to the next notification period after the date of publication.

Payment of notification fees

34.—(1) On or before the first day of each notification period a qualifying copyright owner must pay to a qualifying ISP the amount specified in sub-paragraph (2).

(2) The amount payable is equal to the notification fee set by OFCOM under paragraph 33 applicable to that qualifying ISP multiplied by the number of copyright infringement reports calculated in accordance with sub-paragraph (3).

(3) The number of copyright infringement reports is—

(a) the number of copyright infringement reports which the qualifying copyright owner estimates it will make to the qualifying ISP under this Code during the notification period; less

(b) the difference between the number of copyright infringement reports which that qualifying copyright owner estimated it would make to that qualifying ISP under this Code in the previous notification period and the number it actually made to that qualifying ISP in that period, if lower.

Qualifying costs

35.—(1) A qualifying copyright owner must pay to OFCOM a fee in respect of the qualifying costs estimated by OFCOM to be incurred in respect of each notification period.

(2) OFCOM must notify each qualifying copyright owner of the amount of the fee to be paid and the date for payment.

(3) OFCOM must set the fees with a view to securing that, on the basis of such estimates of the likely qualifying costs as it is practicable for OFCOM to make—

(a) for each notification period, the aggregate amount of fees payable by qualifying copyright owners to OFCOM in respect of qualifying costs are sufficient to meet, but do not exceed, the total amount of the qualifying costs in the notification period;

(b) the amount of the fee payable by each qualifying copyright owner in a notification period is determined by reference to the proportion that the total number of copyright infringement reports which the qualifying copyright owner estimates it will make under this Code during that period bears to the total number of copyright infringement reports estimated to be made under this Code by all qualifying copyright owners during that period

(4) As soon as practicable after the end of each notification period, OFCOM must publish a statement in respect of that period showing—

(a) the total amount of fees that have been received from qualifying copyright owners by OFCOM;

(b) the total amount of fees that remain outstanding and are likely to be paid or recovered; and

(c) the qualifying costs incurred in that period.

(5) Any deficit or surplus shown by the statement (after applying this sub-paragraph for all previous notification periods) shall be carried forward and taken into account in fixing the fees to be paid in respect of the qualifying costs OFCOM estimate will be incurred in relation to the following notification period.

Initial costs

36.—(1) A qualifying copyright owner liable to pay fees in respect of qualifying costs in either or both of the first two notification periods must pay to OFCOM a share of the initial costs.

(2) OFCOM must, so far as practicable, secure—

(a) that, in the first notification period, the aggregate amounts payable to OFCOM by all qualifying copyright owners in that period in respect of the initial costs are sufficient to meet, but do not exceed, the initial costs;

(b) that, in the second notification period, the aggregate amounts payable to OFCOM by all qualifying copyright owners in the first and second notification periods in respect of the initial costs are sufficient to meet, but do not exceed, the initial costs.

(3) As soon as practicable after the start of the second notification period, OFCOM must review the amounts they have charged to qualifying copyright owners in the first notification period in respect of the initial costs and may make refunds in respect of any overpayments, if they consider it appropriate, after taking account of the amounts they charge to qualifying copyright owners in the second notification period.

(4) In carrying out their functions under this paragraph, OFCOM must, so far as practicable, ensure that—

(a) the amount payable by each qualifying copyright owner in the first notification period is determined by reference to the proportion that the total number of copyright infringement reports which the qualifying copyright owner estimates it will make under this Code during that period bears to the total number of copyright infringement reports estimated to be made under this Code by all qualifying copyright owners during that period;

(b) the amount payable by each qualifying copyright owner in the second notification period is determined by reference to the proportion that the total number of copyright infringement reports which the qualifying copyright owner estimates it will make under this Code during the first and second notification periods bears to the total number of copyright infringement reports estimated to be made under this Code by all qualifying copyright owners during those periods.

(5) OFCOM must notify each qualifying copyright owner of the amount payable and the date by which such amount must be paid.

Case fees

37.—(1) The appeals body must set a case fee to be charged for each determination of a subscriber appeal it may make.

(2) If the appeals body proposes to make a single determination in relation to two or more subscriber appeals within a notice of subscriber appeal sent to the appeals body under this Code, only one case fee may be charged in respect of that determination.

(3) The appeals body must set the case fee with a view to securing that, on the basis of such estimates as it is practicable for the appeals body to make, for each notification period the aggregate amount of case fees and subscriber fees it retains are sufficient to meet but do not exceed the costs that the appeals body may incur in making determinations in that period (including the costs of handling and processing the subscriber appeals).

(4) The amount of the case fee must be approved by OFCOM.

(5) The appeals body must charge the case fee to the relevant copyright owner.

(6) For the purposes of this paragraph the relevant copyright owner is the qualifying copyright owner that made the copyright infringement report which is the subject of the subscriber appeal or which led to the act or omission that is the subject of the subscriber appeal.

(7) The relevant copyright owner must pay the case fee within such period as the appeals body may determine from time to time.

(8) If there is more than one relevant copyright owner the appeals body must apportion the case fee equally between them.

(9) The appeals body may review the amount of the case fee from time to time in consultation with OFCOM.

(10) The appeals body must publish the amount of the case fee or any revised fee as soon as practicable.

Subscriber fees

38.—(1) A subscriber must pay a fee of £20 to the appeals body in respect of each notice of subscriber appeal which the subscriber sends to the appeals body.

(2) The appeals body must refund the subscriber fee to the subscriber if it determines every subscriber appeal raised in the notice of subscriber appeal in favour of the subscriber.

Part 11: Administration and Enforcement of Code

Information and assistance

39. OFCOM may require a qualifying entity to provide them with all such information and assistance as they consider necessary for the purposes of carrying out their functions under this Code and the relevant copyright infringement provisions. Notice of contravention 40.—(1) OFCOM may give a notice to a qualifying entity where OFCOM determine that there are reasonable grounds for believing that a qualifying entity is contravening, or has contravened—

(a) an initial obligation;

(b) a provision of this Code; or

(b) a direction made by OFCOM or a determination or direction of the appeals body made in accordance with any provision of this Code.

(2) A notice of contravention is one which—

(a) sets out the determination made by OFCOM;

(b) specifies the contravention in respect of which a determination has been made;

(c) specifies any financial penalties which OFCOM propose to impose under paragraph 42;

(d) specifies any directions which OFCOM propose to make under paragraph 41 or paragraph 43; and

(e) specifies the period during which the person notified has the opportunity to make representations to OFCOM about the matters notified.

(3) The period for making representations must be a period greater than ten working days beginning with the day on which the notice of contravention was sent.

(4) The period for representations may be shortened if OFCOM—

(a) have reasonable grounds for believing that the case is an urgent case or a case of serious and repeated contravention; and

(b) consider that a shorter period would be appropriate. (5) A notice of contravention may be given in respect of more than one contravention.

Final enforcement notice

41.—(1) This paragraph and paragraphs 42 and 43 apply where—

(a) a qualifying entity has been given a notice of contravention;

(b) OFCOM have allowed the qualifying entity an opportunity to make representations about the matters contained in the notice of contravention; and

(c) the period allowed for making representations has expired.

(2) OFCOM may give a notice to a qualifying entity where they are satisfied that it has, in one or more of the respects notified, been in contravention of a provision or direction specified in the notice of contravention.

(3) A final enforcement notice must include OFCOM’s determination and may include—

(a) a direction requiring the qualifying entity to take such steps as may be specified in the notice;

(b) details of any financial penalty which is imposed pursuant to paragraph 42; and

(c) details of any directions made by OFCOM pursuant to paragraph 43. (4) A final enforcement notice may be given in respect of more than one contravention.

Financial penalty

42.—(1) OFCOM may impose a financial penalty on a qualifying entity in respect of any contravention identified in a final enforcement notice.

(2) The amount of any penalty imposed under sub-paragraph (1) is to be such amount not exceeding £250,000 as OFCOM determine to be—

(a) appropriate; and

(b) proportionate to the contravention or contraventions in respect of which it is imposed.

(3) OFCOM must have regard to any representation made by the qualifying entity in deciding whether to impose a financial penalty under sub-paragraph (1).

(4) Where a final enforcement notice is given in respect of more than one contravention, a financial penalty may be imposed in respect of each contravention identified in the notice.

(5) Where a final enforcement notice is given in respect of a contravention which is continuing, no more than one penalty may be imposed in respect of the contravention identified in the notice.

(6) Any penalty imposed under this paragraph— 20

(a) must be paid to OFCOM within such reasonable period as may be specified in the final enforcement notice; and

(b) if not paid within the period specified by OFCOM is to be recoverable by them.

Compensation and costs

43.—(1) OFCOM may direct a qualifying entity to pay an amount of compensation, to reimburse costs, or to do both, to any person affected by the contravention and identified in a final enforcement notice.

(2) OFCOM must have regard to any representation made by the qualifying entity in deciding whether to issue a direction under sub-paragraph (1).

(3) Where a final enforcement notice is given in respect of more than one contravention, payment of compensation and costs may be directed in respect of each contravention identified in the notice.

(4) Any compensation and costs payable under this paragraph must be paid within such reasonable period as may be specified in the final enforcement notice.

Part 12: Dispute Resolution

44.—(1) This paragraph applies in relation to an owner–provider dispute(a).

(2) Any qualifying copyright owner or qualifying ISP which is a party to a dispute may refer it to OFCOM.

(3) OFCOM may decide it is appropriate for them to resolve the dispute where they are satisfied that—

(a) it is an owner–provider dispute;

(b) the submissions of the qualifying entity referring the dispute meet the requirements as to form and content which OFCOM may from time to time specify;

(c) the parties to the dispute have made reasonable attempts to resolve the dispute between themselves;

(d) there are no alternative means for resolving the dispute; and

(e) there is reason to believe that there may have been a contravention of the initial obligations or the provisions of this Code.

(4) OFCOM must inform each of the parties to the dispute as soon as reasonably practicable of their decision as to whether it is appropriate for them to resolve the dispute and the reasons for that decision.

(5) Where OFCOM have decided that it is appropriate for them to resolve the dispute they must send a notice to the parties to the dispute inviting them to provide representations on the matters in dispute within the period of 5 working days beginning with the day on which the notice was sent or such other period as may be specified therein.

(6) OFCOM must consider any representations made by the parties to the dispute and may issue a draft dispute determination setting out OFCOM’s provisional findings and recommended means of resolving the dispute.

(7) Where OFCOM have issued a draft dispute determination the parties may submit representations on the matters covered by the draft dispute determination within the period of 10 working days beginning with the day on which the draft dispute determination was sent or such other period as may be specified therein.

(8) OFCOM must consider any representations made by the parties to the dispute on the matters covered by the draft dispute determination and must send a final dispute determination to the parties.

(9) A final dispute determination may include—

(a) a direction requiring a party to the dispute to take such steps to comply with an initial obligation, a provision of this Code or a direction made under this Code as may be specified in the final dispute determination;

(b) a direction requiring a party to the dispute to pay compensation to the other party in respect of any losses incurred by that other party in consequence of a contravention of the initial obligations, a provision of this Code or a direction made under this Code;

(c) a direction requiring a party to the dispute to pay to the other party an amount in respect of costs incurred by that other party in consequence of the reference to the dispute to OFCOM.

(10) This Part does not prejudice the ability of OFCOM to take enforcement action under paragraphs 40 to 43 in respect of any of the matters raised in connection with an owner–provider dispute.

Explanatory Note

(This note is not part of the Order)

The Digital Economy Act 2010 inserted sections 124A to 124N into the Communications Act 2003 (“the Act”) to regulate online copyright infringement. Under section 124D of the Act, OFCOM has a duty to make a code by order for the purposes of regulating the initial obligations set out in the copyright infringement provisions of the Act. This Order therefore contains an initial obligations code setting out the rights and obligations of copyright owners, internet service providers and subscribers under the copyright infringement provisions of the Act. The code contained in the Schedule to this Order is the “Online Infringement of Copyright Initial Obligations Code”. Article 1 of the Order provides that the Order shall come into effect on [ ]. Article 2 of the Order provides for the code contained in the Schedule to have effect for the purposes of section 124D(1) of the Act. In the Schedule to the Order— [] [This Order was notified in draft to the European Commission in accordance with Directive 98/34/EC, as amended by Directive 98/48/EC.]