The UK communications regulator, Ofcom, has today released its revised Initial Obligations Code proposal, which is designed to clampdown on “illegal” internet piracy (copyright infringement) by customers of the largest broadband ISPs. The code is seen as a vital part of the controversial and much delayed Digital Economy Act (DEAct).
The revised code describes how and when internet providers should issue Notifications Letters (warning notices) to their customers. It will only apply to the largest ISPs (i.e. providers with more than 400,000 fixed line broadband connections), which covers 93% of the UK retail broadband market. This includes BT, Orange UK (EE), O2, Sky Broadband, TalkTalk and Virgin Media.
As a result Mobile Broadband operators and providers of WiFi (wireless internet) services (sadly this does NOT include shared home wireless networks) are deemed to be “outside the scope of the Code“, which is because the costs of participation would be disproportionately high compared to the expected low reduction in overall levels of online copyright infringement. But this only applies to commercial operators, with libraries and similar services still potentially being vulnerable to its remit.
The letters, which are based on Copyright Infringement Reports (CIR) from Copyright Holders (data about such activity is usually collected from public P2P file sharing networks), are designed to inform subscribers about any allegations that their accounts may have been used for unlawful activity. They will only be sent via first class mail (post). Copyright owners will also need Ofcom approval of their procedures for gathering evidence of infringement before they can be used under the scheme.
The letters themselves must also include educational information that promotes lawful access to digital content and helps affected customers to protect their networks from being used to infringe copyright. Rights Holders will be similarly 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“.
Only a single letter can be sent to a subscriber in any given month, which is to help keep costs down and allow the end-user time to respond. But if a customer receives 3 or more letters within a 12-month period then the ISP will be required to pass anonymous information, on request, to copyright owners showing them which infringement reports are linked to that customer’s account.
At this point the copyright owner may then choose whether or not it wishes to seek a court order that requires the ISP to identify the customer, which could be followed by legal action for infringement under the Copyright Designs and Patent Act 1988. In reality such cases have historically proven difficult to prosecute due to a lack of evidence or flawed data (IP addresses only identify the account owner, whom may not have committed the offence).
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.”
Ofcom claims that broadband customers will have the right to challenge any allegation of infringement through an independent appeals body, which is to be established by the regulator, but you’ll have to pay a Subscriber Appeal Fee of £20 to do that. Likewise customers will only have 20 working days from the date of receipt of a notification to launch an appeal, thus hard luck if you took a holiday or were ill in hospital at the time.
Sadly Ofcom “on the instruction of Government” has removed the ability for subscribers to appeal on any grounds they choose. In any case it’s still unclear how an innocent subscriber, perhaps somebody whose wifi network has been hacked, could be expected to prove their innocence against something that is akin to an invisible crime without evidence.
Readers might recall that the DEA also proposed a raft of “technical measures“, such as account disconnection (“suspension“), internet speed restrictions and website blocking, which could be used against related subscribers. The latter (website blocking) has already been rejected by Ofcom, although a voluntary code solution is still being investigated.
Ofcom makes clear that such future measures will “only be considered after the Code has been in force for at least 12 months” and would require further legislation and approval by Parliament. This would also require Ofcom to establish a further independent appeals process with judicial oversight.
Jim Killock, Open Rights Group (ORG), said:
“Digital revenues are going up, the music and film industry are moving in the right direction, yet this cumbersome policy is still lumbering forward.
Ofcom are being asked to put lipstick on a pig with this code. The appeals are a joke. The Government has decided that ‘I didn’t do it’ is not a defence. Some people will almost certainly end up in court having done nothing wrong.”
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.”
The regulator currently envisages the first notifications being sent in early 2014, while a review of which ISPs are included within the scope of the Code will be conducted after it has been in operation for 6 months. Ofcom states that it will report regularly to the Government on the effectiveness of both the code and any broader initiatives from copyright owners.
A consultation for Ofcom’s revised draft code will be open until 26th July 2012 and, once complete, will still be subject to further review by the European Commission (EC). The goal is to have it laid out in Parliament “around the end of 2012“. A related consultation on the sharing of costs between copyright owners and ISPs (75% : 25%) is also open until 18th September 2012.
Ofcom’s Revised Online Copyright Infringement Code of Practice
Ofcom’s Revised Sharing of Costs Order for Copyright Holders and ISPs
Added a comment from Consumer Focus above.