I have extracted various quotes from the revised code and supporting documents like the press release and added my comments. The quotes appear in italics.
{i}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.{/i} The precise nature of that advice will be interesting – it must surely have to be a little street-savvy to retain any credibility rather than a sales pitch. I bet that certain ISPs, especially those run by bearded adventurers and those that exist only as initials, will not resist the temptation to sell. Can you really see the ISPs advising you to try any service that benefits a rival? And I cannot wait for the letter advising on where to watch some of the less respectable copyright-protected content – it may well fall to SCL members to draft that one.
{i}We have amended the definition of the internet access services and internet access providers that are within scope of the Code to clarify that only providers of fixed internet access supplying services over more than 400,000 broadband-enabled lines will be subject to the initial obligations. Internet access providers which do not meet these criteria (for example, mobile network operators and providers of Wi-Fi services) are outside the scope of the Code. This is on the basis that costs of participation would be disproportionately high compared to the expected low reduction in overall levels of online copyright infringement that participation would bring.{/i} While the first thought on reading this was about Ofcom lifting the veil if providers arrange their business to ensure that no unit provides more than 400,000 broadband-enabled lines, they have dealt with this by covering groups of companies in the Companies Act sense. But that is still quite a high figure and there might be a temptation to localise while arranging a consortium that still provides all the economies of scale. Trumping speculation about changes in behaviour by providers by a distance is the fact that {i}serious infringers{/i} will go to small providers; I am not sure that is even speculation, more a solid prediction. Serious infringers will move to Hull – and many would say (but certainly not me) that residing there would be punishment enough. Of course, the old remedies would remain available to deal with serious serial infringers, but that raises the big question of why we are bothering with all this anyway. Perhaps, it is a very clear reminder that none of barriers to dedicated infringers work, and that Ofcom and all the other players know this, and that the code’s real purpose is to deter the law-abiding majority and remind them that casual infringement is wrong.
{i}The Code now clarifies the standard for obtaining evidence of copyright infringement. It now specifies that a copyright owner may only send a CIR if it has gathered evidence in accordance with the approved procedures which gives reasonable grounds to believe that:
• a subscriber to an internet access service has infringed the owner’s copyright by means of the service; or
• has allowed another person to use that service and that person has infringed the owner’s copyright by means of that service. {/i}
That will be a relief! While it is tempting to wield the sarcasm stick when there is so much controversy about the feasibility of producing such evidence, there is a genuine need met here. I suspect that the ‘approved procedures’, as to which I encourage comment from SCL members who know about such things, will be the subject of controversy but let’s hope that we get clarity and don’t get 85-year-old Auntie Joan warned off for watching copyright-breaching gay porn. On the face of it, as Ofcom acknowledges, they are a bit stuck because the DEA itself indicates a clear Parliamentary intention that a copyright owner should not have to establish {i}definitively{/i} that an infringement of copyright has taken place before sending a copyright infringement notice – just that it has reasonable grounds for believing that is the case. The heavy lobbying on the drafting of the Act may not have done the copyright owners a good service there. Ofcom’s answer is to rely on the appeals procedure. That is an objectively reasonable position in my view but being objectively reasonable will not help an ISP faced by an angry combination of Auntie Joan and the Daily Mail.
{i}For the purposes of reviewing and approving the copyright owners’ evidence-gathering procedures, we are proposing to sponsor the development of an evidence-gathering technical standard by an independent standards body. Our expectation is that a copyright owner will be well placed to secure approval from Ofcom if it adopts evidence-gathering procedures that comply with the standard that is developed.{/i} I highlight this element mainly to encourage that section of the SCL membership that can help with this to be ready to seek sponsorship. But I do wonder if there is time for this to be done before the first CIRs are meant to be despatched and would certainly like to emphasise the point that any such standard will need to be constantly reviewed in the light of the developments in this area.
{i} The fixed costs of processing CIRs, including both capital and fixed operating costs, are £1.4m for each Qualifying ISP, of which 75% (£1.05m) will be charged to Copyright Owners through the notification fee{/i} I am cheating a little here since this is an extract from the consultation on the implementation of the Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order which will require Ofcom to set fees payable by Copyright Owners to ISPs and to Ofcom if they intend to take advantage of a notification scheme in relation to online infringements of their copyright. The table there has shocked me. Copyright owners are faced with spending a lot of money on this and I do wonder if their internal calculations of loss through online copyright infringement match the ones that are often published. My guess is that some ISPs will make money here, because the costs can be minimised by automation and outsourcing, but I am sure that their accounting methods are sophisticated enough to mask any such profit.
