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.
Government to consult on automatic porn censorship proposals: “The Government is to consult on proposals that would require internet service providers (ISPs) to offer to block customers’ access to pornographic material by default.”
(Via OUT-LAW News.)
As expected, the High Court has ordered British ISPs to block access to The Pirate Bay. Five ISPs – Virgin Media, TalkTalk, BSkyB, Everything Everywhere and Telefonica – are involved in this case, which was brought by nine record labels.…
(Via The Register – Public Sector.)
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.)
BBC News – Digital Economy Act court challenge fails: “Digital Economy Act court challenge fails
20 April 2011
A legal challenge to the Digital Economy Act has failed get the controversial legislation overturned.
The judicial review, requested by BT and Talk Talk, rejected claims that Parliament had overstepped its powers with anti-piracy measures.
However, Mr Justice Kenneth Parker upheld one of the objections, relating to who pays for the law’s enforcement.
Today’s ruling was welcomed by copyright holders who said that it would help reduce illegal file sharing.
The act, which was rushed through Parliament before the 2010 general election, obliges internet service providers (ISPs) to co-operate with rights holders in identifying computer users who may have downloaded music, software or videos illegally.
BT and Talk Talk mounted a legal challenge in the High Court, claiming the legislation violated several European laws on commerce and privacy.
Justice Parker rejected four of the five points put forward by the ISPs but ruled in their favour regarding a piece of associated legislation that makes service providers liable for 25% of the cost of policing their users.
The government will now be forced to re-examine the draft costs sharing order, however it is unlikely that will significantly delay the implementation of the Digital Economy Act.
In a statement, BT expressed its disappointment with the ruling.
‘Protecting our customers is our number one priority and we will consider our options once we have fully understood the implications for our customers and businesses.
‘This was always about seeking clarity on certain points of law and we have to consider whether this judgment achieves these aims,’ said a BT spokesperson.
The government said that it was ‘pleased’ with the High Court’s decision and that it would set out the next steps for implementing the law shortly.
Prior to the Digital Economy Act, content producers, such as record companies and film studios, had argued that the UK needed legislation to help them pursue illegal file sharers.
Continue reading the main story
This judgement gives the green light for action to tackle illegal downloading in the UK.’
End Quote Geoff Taylor British Phonographic Institute
What they eventually secured was a law that compels ISPs to write to their customers at the rights holders’ behest, warning them to cease their behaviour.
If the the customer does not comply, their ISP may eventually be asked to limit the user’s internet access or, in extreme cases, make their personal details available so legal action can be taken.
Opponents of the Digital Economy Act claimed that it allowed for severe sanctions against computer users, based on little more than the word of a large corporation.
They pointed out that the act also failed to clearly define a route of appeal for those users targeted.
Rights holders argued that rather than contesting the law, companies like BT and TalkTalk ought to have worked with them to try to iron out these problems.
One such group, the British Phonographic Institute (BPI) which represents record companies, welcomed Wednesday’s ruling.
BPI chief executive Geoff Taylor said: ‘This judgement gives the green light for action to tackle illegal downloading in the UK.
‘It confirms that the DEA is proportionate and consistent with European Law.
‘Shareholders and customers of BT and TalkTalk might ask why so much time and money has been spent challenging an act of Parliament to help reduce the illegal traffic on their networks.’
Committee launches a new inquiry into the Protection of Intellectual Property Rights Online – UK Parliament: “Committee launches a new inquiry into the Protection of Intellectual Property Rights Online
10 November 2010
The Culture, Media and Sport Committee issues a call for evidence on the Protection of Intellectual Property Rights Online
The Committee will consider the new framework for the protection of intellectual property rights online that is being established under the Digital Economy Act, and the extent to which it is a reasonable and sufficient response to the challenges facing creative industries and individuals in digital markets. Issues the Committee will be considering include:
The implementation, practicality and likely effectiveness of the relevant measures contained in the Digital Economy Act. In particular:
* Whether the new framework has captured the right balance between supporting creative work online and the rights of subscribers and ISPs.
* Whether the notification process is fair and proportionate.
* The extent to which the associated costs might hinder the operation of the Act.
* At what point, if at all, consideration should be given to introducing the additional technical measures allowed for under the Act.
More broadly, the scope for additional activity and new approaches to ensure that original work is appropriately rewarded in the online environment, including the issues raised by the Government’s review of the intellectual property framework. In particular:
* Intellectual Property and barriers to new internet-based business models, including information access, the costs of obtaining permissions from existing rights-holders, and ‘fair use.’
The Committee is inviting written submission on the above and other matters relevant to the inquiry. A copy of the submission should be sent by e-mail to email@example.com and have ‘The Protection of Intellectual Property Rights Online’ in the subject line. Submissions should be received by Wednesday 5 January 2011.
Guidance on submitting written evidence
It assists the Committee if those submitting written evidence adhere to the following guidelines:
Each submission should:
* state clearly who the submission is from, i.e. whether from yourself in a personal capacity or sent on behalf of an organisation
* be about 3,000 words in length / run to no more than six sides of A4 paper;
* as far as possible comprise a single document attachment to the email;
* begin with a short summary in bullet point form;
* have numbered paragraphs;
* be in Word or Rich Text format (not PDF) with as little use of colour or logos as possible.
Please supply a postal address so a copy of the Committee’s report can be sent to you upon publication.
It would be helpful, for Data Protection purposes, if individuals submitting written evidence would send their contact details separately in a covering email in a block of text laid out vertically. You should also be aware that there may be circumstances in which the House of Commons will be required to communicate information to third parties on request, in order to comply with its obligations under the Freedom of Information Act 2000.
Though there is a strong preference for emailed submissions, those without access to a computer should send a hard copy to:
Culture, Media and Sport Committee
House of Commons
7 Millbank London
A guide for written submissions to Select Committees may be found on the parliamentary website.
Please also note that:
* Committees make public much of the evidence they receive during inquiries. If you do not wish your submission to be published, you must clearly say so. If you wish to include private or confidential information in your submission to the Committee, please contact the Clerk of the Committee to discuss this.
* Material already published elsewhere should not form the basis of a submission, but may be referred to within a proposed submission, in which case a hard copy of the published work should be included.
* Evidence submitted must be kept confidential until published by the Committee, unless publication by the person or organisation submitting it is specifically authorised.
* Once submitted, evidence is the property of the Committee. The Committee normally, though not always, chooses to make public the written evidence it receives, by publishing it on the Internet (where it will be searchable), by printing it or by making it available through the Parliamentary Archives. If there is any information you believe to be sensitive you should highlight it and explain what harm you believe would result from its disclosure. The Committee will take this into account in deciding whether to publish or further disclose the evidence.
* Committees do not normally investigate individual cases of complaint or allegations of maladministration.
* Once submitted, no public use should be made of any submission prepared specifically for the Committee unless you have first obtained permission from the Clerk of the Committee.
For up-to-date information on progress of the inquiry visit the Culture, Media and Sport Committtee’s inqury pages”
Digital Economy Act to be reviewed by courts and Parliament: “The Digital Economy Act is to be the subject of a judicial review and a Parliamentary Inquiry. The news is the latest blow to the controversial law, which opponents said was rushed through the dying days of the last Parliament without proper scrutiny.“
(Via OUT-LAW News.)
ISPs will pay quarter of copyright notification costs, says Government: “Internet service providers (ISPs) will have to bear a quarter of the costs of the copyright protection systems to be set up under the Digital Economy Act (DEA), the Government has said. ISPs have objected to the decision.“
(Via OUT-LAW News.)
OUT-LAW News, 08/07/2010
Two of the UK’s biggest ISPs will ask the UK courts to scrutinise the controversial Digital Economy Act to determine whether or not it conflicts with existing laws on privacy and electronic communications.
BT and TalkTalk have asked the High Court to conduct a judicial review of the law, which was passed amidst the horse-trading and rushed compromise of the controversial ‘wash up’ process that took place just before this year’s general election.
That process allows the passing of potentially large numbers of laws as long as the opposition does not seek to block them. This gives the opposition significant power and deals are made between Government and opposition without the usual Parliamentary or public scrutiny.
The progress of the Digital Economy Act was already seen as rushed before it entered the wash-up period and it has been criticised for imposing significant obligations on ISPs without proper consideration of the effects of its measures.
The law allows for the passing of regulations that would, for the first time, force ISPs to disconnect their customers if intellectual property rights holders believed that an account was used for the unauthorised sharing of copyrighted material.
BT and TalkTalk said in a statement that they are ’seeking clarity’ from the High Court on the legality of the law’s provisions before spending significant sums on systems to implement them.
‘The companies share a concern that obligations imposed by the Act may not be compatible with important European rules that are designed to ensure that national laws are proportionate, protect users’ privacy, restrict the role of ISPs in policing the Internet and maintain a single market,’ said the statement.
The UK has laws that implement EU directives on data protection and electronic privacy that control how organisations gather, process and use information online. They also govern what information can be gathered from electronic communications and say that ISPs should not be responsible for material sent over their network unless informed about infringements of the law.
The ISPs want the High Court to rule on whether the Digital Economy Act conflicts with existing laws based on these directives.
‘If clarity is not gained at this stage then BT, TalkTalk and other industry players may end up investing tens of millions of pounds in new systems and processes only to find later that the Act is unenforceable and the money wasted,’ the companies said in a statement.
‘The Digital Economy Act’s measures will cost the UK hundreds of millions [of pounds] and many people believe they are unfair, unwarranted and won’t work,’ said TalkTalk chairman Charles Dunstone. ‘It’s no surprise that in Nick Clegg’s call for laws to repeal, this Act is top of the public’s ‘wish list’.’
‘Innocent broadband customers will suffer and citizens will have their privacy invaded. We think the previous Government’s rushed approach resulted in flawed legislation,’ he said. ‘That’s why we need a judicial review by the High Court as quickly as possible before lots of money is spent on implementation.’
Technology lawyer Struan Robertson of Pinsent Masons, the law firm behind OUT-LAW.COM, said that once a law has been passed by the country’s elected representatives in Parliament there is little that unelected judges can do to change it.
‘It is not in the power of the courts to throw out a primary Act of Parliament,’ said Robertson. ‘All the court can do is make a declaration that a law is in breach of other obligations. That declaration would put pressure on Parliament to revisit the Act.’
‘This law was rushed through Parliament and didn’t get the scrutiny it deserved. It’s a bad law, in my view. Unfortunately, it won’t be easy to change it unless and until there is political will to do so,’ he said. ‘The courts can’t just strike it down.’
‘It’s disappointing that we feel the need to take action but we feel we have no choice,’ said BT Retail chief executive Gavin Patterson. ‘We have to do this for our customers who otherwise run the risk of being treated unfairly. Our dispute is not with the current Government but with the previous administration which pushed this through without due process. We need clarity about whether this legislation is compatible with important EU laws.’
No need for net neutrality action, says UK regulator | Pinsent Masons LLP: “No need for net neutrality action, says UK regulator
OUT-LAW News, 28/06/2010
SNIPPET: While US telcos, politicians, user rights activists and big media companies have spent the past three years wrangling, tussling, lobbying and shouting about net neutrality, the issue has never caused much trouble elsewhere.
Now UK telecoms and media regulator Ofcom has made it official: net neutrality is not a cause for worry. Yet.
Net neutrality demands that ISPs treat all traffic the same. Some US telcos are of the view that they should be able to favour the traffic of media companies that pay them. Opponents say this fundamentally undermines the open internet.
Ofcom has produced a report (68-page / 595KB PDF) into the issue which says that we shouldn’t be concerned: it has had no serious complaints about the issue and thinks there are no grounds for issuing blanket demands about traffic shaping yet.
It said that consumers don’t have much to worry about, though it says that there is a danger they might be confused by various firms’ traffic management policies.
It might seem anti-climactic compared to the US hysteria, but if it keeps UK politicians from proposing some of the ham-fisted laws mandating exactly how ISPs can and can’t behave that the US could face, I’ll take anti-climactic any time.