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 currently, the Costs Order is rumoured to be being delayed by the Treasury who are worried about costs being paid by the taxpayer.
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, which failed, and appealed that decision.
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.
Information about the Act