The anti-piracy elements of the UK’s controversial and much-delayed Digital Economy Act are continuing their slow march to implementation with the publication of OFCOM’s updated Initial Obligations Code today.
As the DEA dictates, ISP accounts linked to peer-to-peer infringements will be subject to receiving a series of notifications warning the bill payer that their activities (or those of people in their household) are unacceptable and in need of change.
The amendments to the Code, which provides a set of standards and procedures by which the anti-P2P (mainly BitTorrent related) elements of the Act will be governed, are very much a mixed bag.
First, and on the plus side for subscribers, is that evidence collection systems of copyright holders will have to fall into line with OFCOM standards before they can send any CIRs (copyright infringement reports) to ISPs.
Additionally, the Code states that copyright owners may only send a CIR if they have ‘gathered evidence in accordance with the approved procedures’ which lead to the ‘reasonable’ belief that the subscriber has infringed a rightsholder’s copyright or that he has allowed someone else to use his account in order to do so.
In the original version of OFCOM’s Code rightsholders were given 10 days in which to send CIRs to ISPs, but in the updated code they are allowed a month following the time of detection – roughly three times longer than before.
For their part, ISPs were previously allowed 10 days from receipt of a CIR to notify a customer that they had been tracked. That period has now been extended to one month. This means that there could be a 60 day gap between an alleged infringement and a subscriber being notified, up from just 20 days.
On the downside for consumer protection is the complete removal of a clause which allowed ISPs to reject rightholder CIRs if they felt in their ‘reasonable opinion’ they were invalid.
Originally it was envisaged that so-called ‘first and ‘second’ strike warnings would go out via email with only the ‘third’ going out by recorded regular mail. That has now been scrapped. All warnings will now go out by regular first class mail, meaning that there will be absolutely no proof that a subscriber has received his third warning.
In addition to conveying the warning itself, CIRs will now have to show the time and date when any infringement took place (as opposed to simply when the evidence was gathered) and also display the number of previous CIRs sent to the subscriber.
OFCOM reports that it has also introduced a requirement that there be a 20 day gap introduced between the date a previous CIR was sent out to a subscriber and evidence being valid for the creation of a subsequent CIR.
Under the previous iteration of the Code, copyright owners would only be able to request a copyright infringement report from ISPs once every three months, and the service provider would be given 5 days to produce it. That three month period has been reduced to a single month and ISPs will have double the time – 10 days – to produce it.
Under the Code subscribers will be able to lodge an appeal against wrongful accusations of infringement. The time to do so has now been clarified as 20 days from the date of receiving a CIR. It will cost an Internet account holder £20.00 to do so.
Finally, the amended Code ends with notes that the UK Government ordered the removal of two elements, both of which would have given a level of protection to subscribers.
‘On the instruction of Government we have removed the ability for subscribers to appeal on any other ground on which they choose to rely,’ the report notes, adding:
‘On the instruction of Government we have removed the requirement for ISPs and copyright owners to provide a statement showing how their processes and systems are compliant with the Data Protection Act.’
This draft Code is now open for a one month consultation period before being presented to parliament later this year. Letters will start going out in 2014…..maybe.
The full report is available here.