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.
Digital Economy Act not in breach of EU laws, Court of Appeal rules: “A controversial law that forces internet service providers (ISPs) to help combat illegal file-sharing is lawful, the Court of Appeal has ruled.”
(Via OUT-LAW News.)
Irish ISP ordered to stop using ‘three strikes’ system against illegal file-sharers: “The Irish data protection watchdog has ordered the country’s largest internet service provider (ISP) to stop using its ‘three strikes’ system for identifying and warning alleged illegal file-sharers, according to media reports.”
(Via OUT-LAW News.)
Today is a sad day for Internet users in New Zealand as the country’s long-delayed ‘three-strikes’ law takes effect in that country.
New Zealand enacted ‘three-strikes’ legislation this past April after several years of ill-fated attempts. The law allows for fines of up to NZ$15,000 ($12,000) and Internet account suspensions for up to six months.
The law takes effect despite a UN report that concluded disconnecting Internet users, ‘regardless of the justification provided,’ is a violation of the International Covenant on Civil and Political Rights because it limits the type of media individuals are allowed to use to express themselves.
UN Special Rapporteur Frank La Rue said that he was ‘alarmed’ by ‘disproportionate’ Internet disconnection proposals, and that individuals should never have their Internet access terminated for any reason, including copyright infringement.
Following that report, the opposition Labour Party, which had originally voted in favor of the legislation, said it agreed with La Rue’s assessment that Internet disconnection violates international law, and called for a ‘complete review’ of New Zealand’s copyright laws.
It reiterated its opposition to Internet disconnection in a recent press release, vowing to introduce a Bill within 90 days to remove the ‘termination clauses’ from the Copyright Act; it promises to introduce a new Bill within 18 months to ‘update’ and ‘extend’ digital copyright laws that won’t disconnect copyright infringers.
‘Termination is unsustainable,’ said Clare Curran, Labour’s Communications and IT spokesperson. ‘Labour voted for the Bill in April because we stuck by a commitment to work with the Government to enable Internet service providers and rights holders to reach a compromise on copyright law.’
‘That compromise meant that termination of Internet access as an ultimate penalty for repeat copyright infringement remained in the Bill, but could not be enacted without the consent of the Minister, but it is clear that this won’t work long-term.’
She said the real debate is about shifting power, access to information, out-dated business models, and the immense potential of the Internet to change the world as we know it.
‘These solutions are, of course, bigger than simply tinkering with a single section of the Copyright Act,’ added. ‘That’s why Labour will review the whole Act with a view to encouraging new business models to emerge which will distribute digital content easily and affordably.
‘It’s a fundamental principle to ensure that the work of Kiwi creators is valued and that they can maintain control over their own works. The old business models — by which the distribution of creative works was controlled by big companies — have gone.
She’s right, and that’s what they whole fight has been about: prying loose old distribution models and democratizing them. For the first time artists can disseminate their works to the entire world on their own terms, and individuals can likewise access creative works on a scale that was for most of man’s existence unimaginable.
‘Citizens everywhere are hungry for information and creative material via the digital environment. It is absolutely essential we get the balance right,’ Curran said.
Digital Economy Act’s copyright provisions should be repealed, Lib Dem policy proposal says: “Copyright laws set out in the Digital Economy Act (DEA) are ‘deeply flawed and unworkable’ and should be abolished, a Liberal Democrat policy proposal has said.“
(Via OUT-LAW News.)
Yesterday the UK government announced that following a report from regulator OFCOM, plans to block alleged copyright-infringing websites would be dropped. However, there was a second report where OFCOM detailed ways of keeping the costs of Digital Economy Act infringement appeals down. The document carried the usual redactions but TorrentFreak has put on its X-ray vision for your viewing pleasure.
Yesterday, detailing the government’s response to the Hargreaves report, business secretary Vince Cable confirmed that the website blocking provisions put in place under the controversial Digital Economy Act will be discontinued. The decision coincided with an OFCOM report which noted that website blocking would not be effective.
OFCOM also released a second report titled Digital Economy Act, Online Copyright Infringement Appeals Process: Options for reducing costs.
On the front page of the report there is a note that redactions have taken place to censor sections relating to ‘on-going policy development’ of the Department of Culture, Media and Sport.
The DCMS did a better job of hiding the blacked-out text than earlier in the week but not so good as to keep out TorrentFreak and our X-ray specs.
The first redaction on Page 3 says simply ‘Revisit the grounds for appeal set out in Ofcom’s draft Initial Obligations Code’ but two pages later things start to get much more interesting. It seems the government (or more likely their friends in the copyright lobby) doesn’t want talk of an error-prone system becoming public.
Page 5 – OFCOM wants rights holders’ accusations to be ‘quality assured’
Ofcom has also sought to ensure efficiency by introducing into the Code a requirement that Copyright Owners take part in a quality assurance process with the aim of minimising errors. This should help to reduce the number of wrongly identified infringements and subscribers. (ISPs can also have some impact here by ensuring that the letters they send to subscribers make clear the implications of receiving a notification).
A ‘quality assurance process’ sounds like a great idea, but who could be trusted to implement such a regime and ensure independent scrutiny? Anti-piracy tracking companies are notoriously secretive and unlikely to be open about the short-comings of their ‘proprietary systems’.
Page 11 – Government rejects OFCOM suggestion of subscriber appeal ‘on any reasonable grounds’
The grounds set out in the Act are non-exhaustive and we reflected this in our drafted Code by including an option to appeal on ‘any other reasonable ground’. This was intended to provide an efficient mechanism through which to avoid a lengthy revision of the Code should subscribers find additional, but reasonable, grounds for appeal as technologies and consumer behaviours evolve.
We understand that Government believes we should not include this mechanism in the final Code
It is far from clear why the government wishes to remove the right for a citizen to appeal a wrongful accusation on ‘any reasonable ground’. What is clear, however, is why the government might wish to redact this statement from the report – it looks very bad indeed.
Page 11 – ISP IP address matching to be ‘quality assured’
We have also introduced into the Code a requirement that Copyright Owners take part in a quality assurance process with the aim of minimising errors. We are proposing to sponsor a similar standard for the IP address matching processes of the ISPs, although participation will be voluntary. This should help to reduce the number of wrongly identified infringements and subscribers (appeal grounds (a) and (b)). We anticipate that the majority of appeals will rely on ground (c) in the absence of systematic failures by a Copyright Owner or ISP under the Code.
When it comes to copyright infringement cases ISPs make errors so it is good they will be required to adopt similar ‘quality assurance’ processes as rights holders. However, how many will choose to do so when participation is voluntary remains to be seen.
Redactions on page 17 merely repeat details covered in earlier redactions. Redactions on page 19 likewise, save a comment that a rightsholder ‘quality assurance’ process
….does not create a rebuttable presumption in favour of the rights holder but should help bring down the proportion of incorrect CIRs [Copyright Infringement Reports] and therefore appeals costs since there are likely to be fewer meritorious appeals in this respect. This quality assurance is also intended to make sure that the number of CIRs rejected by ISPs for process reasons is minimised
The full but redacted document can be downloaded here.
Individuals will have to pay to contest copyright infringement warnings, Government says: “Internet users who risk being blacklisted as illegal file-sharers will have to pay £20 to appeal against warning letters they receive about their behaviour, the Government has said.“
(Via OUT-LAW News.)
OUT-LAW News, 20/07/2011
Countries that block internet access on copyright infringement grounds are stifling freedom of expression and the free flow of information, according to a new report on the internet and freedom of speech.
The Organisation for Security and Co-operation in Europe (OSCE) said that website blocking was ‘an extreme measure’ that countries should not use as a means of punishment. The OSCE is made up of 56 member countries and aims to identify, prevent and solve areas of political, economic and other areas of conflict.
‘As blocking mechanisms are not immune from significant deficiencies, they may result in the blocking of access to legitimate sites and content,’ the OSCE said in a report (233-page / 1.88MB PDF) on Freedom of Expression on the Internet.
‘Further, blocking is an extreme measure and has a very strong impact on freedom of expression and the free flow of information. Participating States should therefore refrain from using blocking as a permanent solution or as a means of punishment,’ the report said.
‘Blocking of online content can only be justified if in accordance with these standards and done pursuant to court order and where absolutely necessary. Blocking criteria should always be made public and provide for legal redress,’ the report said.
Freedom of expression is a fundamental human right guaranteed in the European Convention on Human Rights and in the UK by the Human Rights Act.
In the UK provisions within the Digital Economy Act allow the Culture Secretary to draw up new regulations that would see courts decide whether to force ISPs to block access to pirated copyright works.
The DEA also allows Ofcom, the UK’s communications regulator, to draw up new regulations to detail how internet service providers (ISPs) should be involved in attempts to stop copyright infringement.
In a draft code of practice published in May last year, Ofcom said that internet users should receive three warning letters from their ISP if they are suspected of copyright infringements online.
Details of illegal filesharers that receive more than three letters in a year would be added to a blacklist, the draft code said. Copyright holders would have access to the list to enable them to identify infringers, it said.
The Government is expected to approve Ofcom’s draft code next year.
BT, the largest UK ISP, is also currently fighting a court battle against the Motion Picture Association (MPA) arguing that it should not have to cut off its customers’ access to a copyright infringing website.
The MPA is challenging BT under Section 97A of the Copyright, Designs and Patents Act and is seeking a court injunction against BT to compel it to act.
Section 97A of the Act gives the High Court, or in Scotland the Court of Session, the power to grant an injunction against a service provider if it had ‘actual knowledge’ that someone has used its service to infringe copyright.
The Act does not specify what purpose an injunction must serve. Section 97A implements the requirements of the EU Copyright Directive which states that countries must ensure that copyright holders have the right to apply for injunctions against intermediaries, such as ISPs, whose services are used to infringe copyright.
Blocking measures also exist in other countries. In France a controversial ‘three strikes’ policy currently exists where a court can punish serial copyright infringers by ordering ISPs to disconnect them from the internet for up to a month.
A voluntary agreement between ISPs and copyright holders in the US was also recently formed which could result in ISPs slowing or blocking customers’ web browsing.
The OSCE criticised its members that do not have measures in place to ensure net neutrality. Net neutrality is a principle which ensures that ISP customers have the right to access all online information equally rather than having easier access to content from companies that have paid their ISP.
‘Network neutrality is an important prerequisite for the Internet to be equally accessible and affordable to all,’ the OSCE report said. ‘It is, therefore, concerning that over 80% of the OSCE participating States do not have legal provisions in place yet to guarantee net neutrality.’
‘Users should have the greatest possible access to Internet-based content, applications, or services of their choice without the Internet traffic they use being managed, prioritized, or discriminated by the network operators,’ the report said.
The OSCE also said that countries must ensure that their residents can access the internet.
‘Everyone should have a right to participate in the information society, and the states have a responsibility to ensure citizens’ access to the internet is guaranteed,’ the OSCE report said.
Technology law news is also available from Bootlaw, a free resource for technology start-ups, with regular events hosted by Pinsent Masons.
Written By Drew Wilson
July 13, 2011
The Organization for Security and Co-operation in Europe (OSCE), the world’s largest security-oriented intergovernmental organization has issued a report that explicitly states that a three strikes law is a disproportionate response to dealing with copyright infringement.
Last month, Frank La Rue, the UN’s Special Rapporteur slammed attempts to put in place three strikes laws as a violation of human rights. Now, it appears, that another large organization agrees with this.
The OSCE recently published a paper documenting freedom of speech on the internet and laws that impacted such freedoms. The available PDF states the following with regards to the emerging of three strikes laws around the world:
The increased use of so-called ‘three-strikes’ legal measures to combat Internet piracy is worrisome given the growing importance of the Internet in daily life. ‘Three-strikes’ measures provide a ‘graduated response’ resulting in restricting or cutting off the users’ access to the Internet in cases where a user has attempted to download pirated material. The third strike usually leads to the user’s access to the Internet being completely cut off. This disproportionate response is most likely to be incompatible with OSCE commitment on the ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’ (55) In the Charter for European Security, the participating States in 1999 ‘reaffirmed the importance of independent media and the free flow of information as well s the public’s access to information [and committed] to take all necessary steps to ensure the basic conditions for free and independent media and unimpeded transborder and intra-State flwo of information, which [they] consider the be an essential component of any democratic, free and open society.’ (56) Any interference with such a fundamental human right, as with any other human right, must be motivated by a pressing social need, whose existence must be demonstrated by the OSCE participating States and must be proportionate to the legitimate aim pursued. (57) Access to the Internet must be recognized as a human right, and therefore ‘graduated response’ mechanisms which could restrict users’ access to the Internet should be avoided by the OSCE participating States.
(55) Paragraph 9.1. of the Final Act of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, June 1990. http://www.osce.org/documents/odihr/2006/06/19392_en.pdf
(56) Paragraph 26 of the Charter for European Security adopted at the OSCE Istanbul Summit 1999. See at
(57) See Paragraph 26 of the Final Document o fthe Moscow Meeting of the Conference on the Human
Dimension of the CSCE, at http://www.osce.org/fom/item_11_30426.html. See also Olsson v. Sweden
(No. 1), judgment of 24 March 1988, Series A no. 130, § 67, and Bladet Tromsø and Stensaas v. Norway
[GC], no. 21980/93, ECHR 1999-III.
In other words, if a government of a given state supports their international obligations to free speech, then the ‘graduated response’ laws where users are cut off after a third accusation of infringement must be avoided. You can’t have free speech and a three strikes law at the same time.
It’s particularly interesting that this finding was made since France, the country that has a three strikes law already in place, is also a member of the OSCE. Another member of interest is the US, the same country that has been pushing other countries to implement a three strikes law.
What this report essentially does is help solidify the point that a ‘graduated response’ or a three strikes law is a violation of human rights. There are international bodies that do agree with this.
The next question will no doubt be whether countries will actually listen to the report or push for laws that disregards human rights. We already know that the United States seems to be content with sacrificing their national security in favor of a six strikes agreement, so, it’s difficult to say that free speech will be a motivating factor to slow down the implementation of these laws.
Jul 8, 2011, 16:49 GMT
Vienna – More and more European governments are putting restrictions on internet use, the Organization for Security and Co-Operation in Europe (OSCE) said Friday, warning that this trend could weaken democratic rights.
The Vienna-based organization issued a study covering 46 of its 56 member states which found that filtering nd blocking of online content nearly always violates the principles of free speech and the free flow of information.
‘Too many governments are really trying to suppress and to restrict,’ the OSCE’s chief media freedom observer, Dunja Mijatovic, told the German Press Agency dpa.
The study highlighted that content blocking, mostly of child pornography, happens in most Western European countries under voluntary arrangements between authorities and service providers, rather than under well-defined laws.
However, such ad-hoc arrangements might be used to block other types of content, said study author Yaman Akdeniz, a professor at Istanbul Bilgi University.
‘Other countries might rely on the same tools to block access to political speech,’ he said.
This ‘domino effect’ of Western regulation being adopted by countries further east is already observable, Akdeniz said, citing Kazakhstan as well as Turkey, where authorities are banning some 15,000 websites.
The study showed that 20 mostly eastern European and central Asian countries prohibit so-called extreme speech on the internet, aiming to prevent criticism of the state.
Akdeniz also warned against measures adopted by France and planned in Britain, which deny any internet access for users who have been found to violate copyright rules.
‘The study wanted to highlight at an early stage that what the UK and France are doing is not necessarily right …, before other OSCE participating states start to use this,’ he said.