It has been a long time coming, but the Government has taken the decisive step of publishing the draft statute aimed at reducing illegal downloads. Lord Mandelson has followed through with his publicised intention of giving teeth to the statutory provisions to ensure their effectiveness, a move welcomed by the music industry body the BPI as providing much-needed measures to protect the creative industries and to secure the future of high-quality digital entertainment in the UK.
Others have objected to aspects of the Digital Economy Bill, notably in relation to the provisions that empower the Secretary of State to direct Ofcom to assess whether internet service providers (ISPs) should be obliged to limit or prevent a subscriber’s ability to download copyrighted works.
Scheme of the bill
The bill outlines Ofcom’s main responsibilities as follows:
• approving a binding code of practice made by ISPs or, if no code is agreed, adopting a code for the purpose of regulating the initial obligations;
• resolving infringement disputes between ISPs, copyright owners and subscribers and establishing a body to resolve appeals;
• providing reports to the Secretary of State on the level of copyright infringements and the extent to which copyright owners have reported infringements to ISPs and have commenced infringement actions; and
• creating a code regulating ISPs’ obligations to impose technical measures against repeat offenders.
Action against subscribers
The process envisaged by the bill is that the copyright owner submits a ’copyright infringement report’ notifying the ISP that there has been an alleged copyright infringement by a subscriber to its internet access service, supported by evidence of the alleged infringement. The ISP then notifies the subscriber and provides information about copyright and how to obtain lawful access to copyrighted works.
The ISP can also be required to notify the subscriber about infringement-related data kept by the ISP and that
the ISP may have to disclose the subscriber’s infringements to the copyright owner. The ISP will need to explain that this may result in the owner applying to the court to obtain details of the subscriber’s identity and consequently issuing proceedings against them for copyright infringement.
Potential limitations on the ability of the copyright owner to require the ISP to send a notification to a subscriber may be included in the code, such as a requirement that the owner makes payment in advance of a contribution towards meeting the ISP’s costs.
Copyright infringement lists
ISPs will need to provide a copyright owner with a ‘serious infringers list’, setting out, in relation to each relevant subscriber, which of the copyright infringement reports made by the copyright owner relate to that subscriber, provided that the report does not enable any subscriber to be identified. Its purpose is to facilitate the copyright owner’s application to the court for a Norwich Pharmacal Order, requiring the ISP to provide the personal details of those on the list.
The copyright owner does not have the right to require an ISP to take technical measures against particular subscribers. Instead the bill provides that the Secretary of State may direct Ofcom to assess whether one or more technical obligations should be imposed on ISPs, to take steps to prepare for the obligations and to provide a report to the Secretary of State. If the Secretary of State is satisfied that the ISP notification to subscribers has not been effective, the Secretary of State can impose an obligation on an ISP to take technical measures against the most serious repeat infringers. Ofcom is to create a code governing such measures.
An ISP’s failure to act in accordance with an initial obligation or a technical obligation, or an ISP’s failure to provide Ofcom with assistance, can result in a penalty being imposed by Ofcom of up to £250,000.
Amendments to the Copyright Act
Clause 17 of the bill has also attracted some heated debate. If in the future developing technologies facilitate new ways of seriously infringing copyright, it allows the Secretary of State to amend part the Copyright Act or the provisions summarised above.
Facebook, Google, Yahoo! and eBay have called on the Government to abandon these measures, fearing they may stifle innovation and result in arbitrary measures being adopted that increase the use of user data monitoring when there has been no breach of the law and creating consumer uncertainty. The Government spokesperson has defended the need for the law to adapt to developing technologies and for the Government to be able to act quickly to prevent infringements.
The Music Publishers Association has welcomed this provision as a sensible way for the law to keep pace with technology, yet has also expressed concern that this broad power should not be used to extend the existing copyright exceptions to user-generated content.
The bill is currently at the committee stage in the House of Lords. Last week, in the face of opposition to Clause 17 in the Lords, the Government signalled that it would offer drafting conessions to ensure the clause was “appropriately targeted”.
Hamish Porter is an IP partner at Field Fisher Waterhouse