Ofcom has published a draft code for consultation that would require large internet service providers (ISPs) to inform customers of allegations that their internet connection has been used to infringe copyright.
The revised draft code and consultation, which closes on 26 July 2012, can be found here.
The code includes provisions for sharing of costs between copyright owners and ISPs, as set out in a draft Statutory Instrument on costs being laid in Parliament by the Government. Ofcom has also published a consultation on how these costs are allocated. This consultation, which closes on 18 September 2012, can be found here. The draft SI has not yet been published but the DCMS has indicated that it sets out that the cost of the letter system will largely be met by rights holders with Internet service providers paying a smaller element. The SI provides for a £20 charge for anyone wishing to formally challenge a letter. The fee would be refunded if the appeal was successful.
The revised code, which Ofcom is required to publish under the Digital Economy Act 2010, includes measures to help inform the public and promote lawful access to digital content such as music and films. When notifying customers of reported infringements, ISPs must explain the steps subscribers can take to protect their networks from being used to infringe copyright and tell them where they can go to find licensed content on the internet.
The key proposals of the first draft code, on which consultation took place in 2010, are unchanged in the revised version of the code published. However, a number of revisions have been made, including:
- Evidence-gathering procedures: copyright owners’ procedures for gathering evidence of infringement must now be approved by Ofcom, rather than by the copyright owners themselves – Ofcom plans to sponsor the development of a publicly-available standard to help promote good practice in evidence gathering;
- Notification letters: ISPs must now include, in letters to subscribers, the number of copyright infringement reports connected to their account;
- Appeals: Ofcom has decided that subscribers should have 20 working days to appeal an allegation of infringement – following a direction from the Government, Ofcom has removed the ability for subscribers to appeal on any grounds they choose; they must now do so on grounds specified in the Digital Economy Act.
Beyond the code, the Digital Economy Act outlined a process for further measures which the Secretary of State might consider to help reduce online copyright infringement. These would require ISPs to take steps (such as internet bandwidth reduction, blocking internet access or temporarily suspending accounts) against relevant subscribers in certain circumstances. However, those measures could only be considered after the Code has been in force for at least 12 months, and would require further legislation and approval by Parliament. They would also require Ofcom to establish a further independent appeals process with judicial oversight.
Awareness campaigns
Copyright owners are expected to invest in awareness campaigns to help educate consumers about the impact of copyright infringement and further to develop attractive online services to offer their content. Ofcom will report regularly to the Government on the effectiveness of both the code and these broader initiatives from copyright owners.
Claudio Pollack, Ofcom’s Consumer Group Director, said: ‘These measures are designed to foster investment and innovation in the UK’s creative industries, while ensuring internet users are treated fairly and given help to access lawful content. Ofcom will oversee a fair appeals process, and also ensure that rights holders’ investigations under the code are rigorous and transparent.’
How the code will work
The code will initially cover ISPs with more than 400,000 broadband-enabled fixed lines – currently BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media. Together these providers account for more than 93% of the retail broadband market in the UK.
The draft code requires ISPs to send letters to customers, at least a month apart, informing them when their account is connected to reports of suspected online copyright infringement.
If a customer receives three letters or more within a 12-month period, anonymous information may be provided on request to copyright owners showing them which infringement reports are linked to that customer’s account. The copyright owner may then seek a court order requiring the ISP to reveal the identity of the customer, with a view to taking legal action for infringement under the Copyright Designs and Patent Act 1988.
Copyright owners can already seek such court orders under existing law, but the Code is designed to enable them to focus legal action on the most persistent alleged infringers.
Appeals
Customers would have the right to challenge any allegation of infringement through an independent appeals body. Ofcom will appoint this body and require it to establish transparent, accessible appeal procedures. Copyright owners will need Ofcom approval of their procedures for gathering evidence of infringement before they can be used under the scheme.
There was a speedy negative reaction on the proposals for an appeals fee of £20. Mike O’Connor, Chief Executive of Consumer Focus, said:
‘The Government is proposing that consumers must pay a £20 fee to challenge accusations of copyright infringement under the Digital Economy Act. Copyright infringement is not to be condoned, but people who are innocent should not have to pay a fee to challenge accusations. Consumers are innocent until proven guilty. Twenty pounds may sound like a small sum, but it could deter those living on low-incomes from challenging unfair allegations. Ultimately consumers could be subject to “technical measures”, including being cut off from the internet, and the ability to appeal is therefore critical to ensure consumers who have done nothing wrong are not deprived of essential internet access further down the line. ‘This fee is intended to prevent “vexatious appeals”. But this could be achieved without pricing low income consumers out of their right to appeal, by giving the Appeals Body the power to fine those who have brought frivolous appeals. However the best way to reduce unnecessary appeals is for Ofcom to require a high standard of evidence from copyright holders, preventing thousands of notifications being sent out on the basis of flimsy evidence.’
Next steps
Once this consultation has been completed and any changes arising from it have been made the, subject to further review by the European Commission, the code will be laid in Parliament around the end of 2012. ISPs will then prepare to meet their obligations, and Ofcom will appoint an appeals body. Ofcom currently expects the first customer notification letters to be sent in early 2014.
Ofcom will review the criteria for applying the code to ISPs once the obligations have been up and running for six months.
