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By: MarkJ - 15 October, 2010 (8:10 AM)
p2p uk internet piracy flagofcomCommunications 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).

Ofcom's CEO, Ed Richards, Commented ( ZDNet UK ):

"We expect to publish a code in this area in the next few weeks. It will be about enforcement, about introducing the measures that the DEA sets out. We will do it and observe how that unfolds over the next few months.

But it's also the point at which the other part of the story needs to be told — the legitimate offers and commercial propositions which sit in parallel to the enforcement regime, that [allow people to download music and video content] in an honest and legal way. If one is there and the other is not, it would take a very great optimist to believe we can get to the right place."

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.
Related News:
14th September 2010 - Copyright Holders to Pay Lions Share of UK ISP Illegal File Sharing Enforcement Cost
7th September 2010 - Ofcom Responds to UK ISP Copyright Infringement Consultation Delays
26th August 2010 - Ofcom UK Illegal Broadband ISP Copyright File Sharing Code Facing Delays
7th August 2010 - Summary of Key Replys to Ofcoms UK Draft Illegal Internet File Sharing ISP Code
8th July 2010 - UK Broadband ISPs Talk Talk and BT. Mount Digital Economy Act Legal Challenge
7th July 2010 - UK Internet Copyright Crackdown Triggers Mass Move to FREE Encrypted P2P VPN
5th July 2010 - Government Your Freedom Site Offers Repeal of UK Digital Economy Act
29th June 2010 - Early Day Motion to Scrap UK Digital Economy Act Receives Tepid Support
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

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