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Ofcom Release UK Internet Piracy Tackling Initial Obligations Code for ISPs

Tuesday, June 26th, 2012 (10:30 am) - Score 3,022

The UK communications regulator, Ofcom, has today released its revised Initial Obligations Code proposal, which is designed to clampdown on “illegalinternet 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.

How do the letters work?

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.

The Future and Technical Service Restrictions

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

UPDATE 12:36pm

Added a comment from Consumer Focus above.

Leave a Comment
11 Responses
  1. adslmax says:

    Force torrent client encryption and use a Russian VPN.

  2. Deduction says:

    Or just go to one of the free wifi spots just announced….. Hmmm are they gonna prosecute BT, SKY ETC for facilitating copyright infringement?

    Must admit i was glad when labour lost power but the daily schemes from Cameron and chums would be deemed mental problems in some parts of the globe.

    I gather from this as its still the connection owner that gets the letter this countries future is one of locking up every business owner that has a wireless hotspot…… Actually i doubt that, businesses pay too much tax to fund those in power satelite, TV and 20 holidays a year. Plus its far easier to go after an individual, who commits the crime at home……. ALL hail to the Camerloon police state and they have the nerve to beehatch about the likes of China LMAO, hypocrites!

  3. James Harkin says:

    The legislation is flawed for the simple reason the majority of householders know nothing about security, other than throwing up Norton Internet Security onto their machines. It is easy for a user to not secure their Wi-Fi, or have an easily hackable password i.e. name of a football team, dictionary word, easy to remember number as a password. I have also heard that unscrupulous 3rd party installers that householders call to have wireless routers and other hardware installed would keep wifi passwords to use themselves for downloading illegal content, sell online or give away to others… How can the content provider have a legitimate case if the infringement is carried out by an anonymous 3rd party?

  4. zemadeiran says:

    Since when should a communications regulator get involved with copyright infringement which surely is a matter for the civil courts between the copyright owner and infringer?????

    ofcom should keep their nose out of this pile of steaming legislation…

  5. Fred says:

    I’ll admit, I do stuff that I shouldn’t online, who doesn’t?

    But when legal options for getting the content I do download becomes cost effective and not six months to a year behind the Americans, then I’ll do it the legal way. Until then, my connection is encrypted and I don’t use public sites.

    But since when did I start living in an Internet Police State?, I got a letter from Virgin Media last week saying “Move all your downloads to after midnight”, and all I had downloaded all WEEK was 13 GB of Steam games, all legally paid for content.

    Now they intend on monitoring if I use P2P services? When a number of legal and subscription based services use P2P style protocols to update and distribute content.

    In other words, we won’t be able to use our internet connections for anything but google,facebook and twitter soon enough. Might as well got back to 56.6 k dial up in that case.

  6. Deduction says:

    I simply can not understand whether you agree with “illegal” downloading or not why its the end user that is the only one that will be punished.

    The operators thereself are the ones supplying the network for them to commit their (what some would deem) crime.

    In any other area of law they would be done for “handling stolen goods” (IE This act of {COUGH} theft goes over their network)

    Or they facilitated in the criminal act. (Like say a gettaway driver that didnt rob the bank but still provided the transport for the get away…. The ISPs network being the transport).

    I can not see this act lasting long once they challenge the wrong person with any clue about law or how the internet even works in a court… The people behind the ideas certainly have no clue about the internet or law.

    1. FibreFred says:

      I’m not sure how to read that one, are you saying you agree that the ISP is at fault here?

    2. Deduction says:

      No im saying they are participants in the crime if downloading copyright material is now going to be a criminal rather than civil offence.

  7. PH says:

    The MVC (Music Game and Video) industry need to get with 20th Century. It costs over £47 for a family of 4 to goto the cinema when a movie downloaded with popcorn and drinks costs £20 maximum. How many trash movies have you paid good money to watch at the cinema? The MVC make ££££££ out of most movies produced, i have downloaded movies, some i’ve watched on cinema. why are they released in the US before any other region? Get real MVC, you need to get your own houses in order before critizising others. Movies that can be download legally are vastly overpriced and there is no support when it doesn’t work!!!! Money for old rope in many cases, not to mention the DRM, if a movie is downloaded from another user in avi or MP4 then it will probably work on my xbox, ps3, android device, pc almost anything, if it’s downloaded legally then it may work with I tunes or windows media player but nothing else. All the MVC industry wants is maximum profit from very little input and they’re not the slightest bit interested in what the consumer wants, just maximum £££$$$$

  8. Deduction says:

    quote”The MVC (Music Game and Video) industry need to get with 20th Century.”

    Ironically they are but not in the way you meant…. Think about the last bit, and a film corporations name 😉

  9. soaralba says:

    just mean’s people will start to get smart and downloading over encrypted VPN, which is prioritised in most traffic shapers and means we back to the start… way to go Cameron,

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