Fishley, Barry
(Summer 2010, Update IP/IT Law)
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The Digital Economy Bill received Royal Assent on 9 April 2010, and became the Digital Economy Act 2010 ("
DEA"). The DEA implements many aspects of the Digital Britain final report. One of the most controversial aspects of the new Bill are the proposed changes to the current law to tackle illegal online copyright infringement and illegal peer-to-peer file sharing. The Bill includes provisions requiring ISPs to take technical measures against serial infringers, including an outright suspension of a subscriber’s internet account.
New rules relating to online copyright infringementThe obligations are triggered when copyright owners present an ISP with a copyright infringement report ("
CIR") identifying IP addresses through which the copyright infringement is taking place. ISPs are required to investigate and send a warning letter to the account holder. The ISPs must maintain records of infringements and provide copyright owners with lists of subscribers (anonymised) referred to in the CIR. The aim is to reduce copyright infringement through illegal P2P file-sharing. Ofcom will be responsible for the specification covering the procedural and enforcement aspects of these obligations through the approval or adoption of legally binding codes of practice.
If these initial obligations on ISPs are not as effective as anticipated i.e. online infringement has not reduced by 70% in 12 months, the DEA gives the Secretary of State the power to direct Ofcom to assess whether ISPs should be obliged to take a range of technical measures against certain subscribers and then, by order, require the ISPs to do so. The measures include limitation of internet connection speed and suspension of the connection. Any such direction must be laid before Parliament. The DEA contains provision for Ofcom to make a "technical obligations code" in relation to any technical obligations imposed, for the purpose of regulating those obligations. This will include the right for subscribers to bring appeals to the first-tier tribunal.
When will the rules come into force? The section of the DEA relating to the approval or development by Ofcom of a code on the new internet service provider obligations on copyright infringement will come into force straight away. Most of the remainder of the Act will come into force two months later.
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