Communications regulator Ofcom UK has confirmed that its final Code of Practice for tackling "illegal" internet P2P (File Sharing) copyright infringement by customers of UK broadband providers, which is a requirement of the controversial Digital Economy Act 2010 (DEA), should be published sometime in "the next few weeks".

The regulator's CEO, Ed Richards, made the remarks at a conference this week where he also stressed the need for any enforcement regime to be accompanied by new legal ways for UK internet consumers to access music and video content. This is also a requirement of the DEA but has so far been somewhat ignored, and possibly even inhibited, by Rights Holders (see this example).


The code itself (detailed here) sets out how and when fixed line broadband ISPs (i.e. those with over 400,000 subscribers and not mobile operators) should send notifications (Warning Letters) based off Copyright Infringement Reports (CIR) to their subscribers, informing them of allegations that their accounts have been used for unlawful file sharing activity.

However the consultation has faced a number of delays and is only the first of three, with two still needing to be conducted. Consultations on both 'Enforcement of the code' and 'Tariff setting – sharing costs' are already more than two months behind schedule. As a result the whole code completion has been delayed by three months until the end of Q1-2011.

In particular the regulator was forced to wait for the governments cost apportioning consultation to complete (here), which recently ruled that Rights Holders would be forced to pay 75% of the costs for tackling online piracy while broadband ISPs will bear the remaining 25%.

The initial code consultation also received plenty of stiff opposition. Many were concerned about the standards of evidence, process transparency (lack thereof), a weak / poorly defined appeals process and, crucially, at what point the first warning letter would be sent.

Ofcom envisaged that the first Copyright Infringement Report (CIR) received by an ISP would trigger the first warning letter being sent to a customer. This is somewhat different from an earlier proposal of only sending the first warning after 10 CIRs.

The problem with using 1 CIR as a basis for action should be obvious. A single CIR could easily be created in error, due either to a customer's own mistake or the notoriously unreliable P2P monitoring methods employed by rights holder lawyers (see the ACS Law debacle). In addition it would also cause an unworkable administrative nightmare for ISPs. Hopefully Ofcom adopts some common sense for its final draft.

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8th July 2010 - UK Broadband ISPs Talk Talk and BT. Mount Digital Economy Act Legal Challenge
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5th July 2010 - Government Your Freedom Site Offers Repeal of UK Digital Economy Act
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25th June 2010 - Journalists Unite to Stop UK Digital Economy Act and ISPs Blocking Legitimate Sites
1st June 2010 - UK Broadband ISPs Respond to Ofcoms Copyright Infringement Code
28th May 2010 - Ofcom UK Publishes Draft Illegal Broadband ISP File Sharing Code of Practice