Online Infringement of Copyright and the Digital Economy Act 2010
1.1 We are consulting on how Ofcom proposes to give effect to measures introduced in the Digital Economy Act 2010 ("DEA") aimed at reducing online copyright infringement. Specifically, we are seeking views on a code of practice called "the Online Copyright Infringement Initial Obligations Code".
1.2 The DEA imposed new obligations on Internet Service providers ("ISPs") to send notifications to their subscribers following receipt of reports of copyright infringement from Copyright Owners. ISPs must also record the number of reports made against their subscribers and provide Copyright Owners on request with an anonymised list which enables the Copyright Owner to see which of the reports it has made are linked to the same subscriber also known as the copyright infringement list'.
1.3 The DEA gave Ofcom duties to draw up and enforce a code of practice ("the Code"). The DEA is very clear on how Ofcom should implement many elements of the measures, but where there is discretion the interests of citizens and consumers are central to Ofcom's approach. We propose a system of quality assurance reporting to ensure that where allegations are made against subscribers they are based upon credible evidence, gathered in a robust manner. We also propose that the independent appeals body, which Ofcom is required to establish, should adopt specific measures to protect subscribers during the hearing of appeals, including a right to anonymity.
1.4 We set out a draft Code in this document which covers, in particular, the provisioning and handling of copyright infringement reports. We also propose which ISPs should initially participate in the code, the process they should use to notify subscribers alleged to have infringed copyright and the threshold for including subscribers on a copyright infringers list.
1.5 We set out a three-stage notification process for informing subscribers of infringements through notifications and propose that subscribers, following receipt of a third notification, may be included in a copyright infringement list requested by a Copyright Owner, which has made at least one report against them. We propose that such notifications should be accompanied with easy to understand information on the nature of the allegations made against the subscriber and on what actions a subscriber can take, both to challenge the allegation and to protect their network from being hijacked for the purposes of infringement.
1.6 As regards those ISPs to whom the Code should apply, the guidance from Government on how we should implement the measures is very clear. The intent is that small and medium sized ISPs should not initially fall within the scope of the Code. However, should evidence be presented that infringement was a significant issue on those ISPs then we will consider bringing them within the scope of the Code. Our proposal is that fixed ISPs with more than 400,000 subscribers should initially be subject to the Code. We believe this approach to be appropriate because it focuses the obligations on the major ISPs who provide internet access to more than 96% of the UK market, it is consistent with the Government's intentions and, based on evidence received from copyright owners, the vast majority of alleged infringement is amongst subscribers of those ISPs. Mobile operators are initially excluded, due in part to current mobile technologies being less conducive than fixed for copyright infringement. However, we will review, on a regular basis, whether to extend coverage of the code.
1.7 The DEA prescribes additional provisions for the Code to include measures for an independent subscriber appeal mechanism for subscribers against acts taken under the Code. The DEA also requires Ofcom to include arrangements for enforcement in the Code and provision for dealing with industry disputes. The Code will also incorporate provisions in relation to the sharing of costs as set out in secondary legislation made by the Government.
1.8 While some of these latter measures are reflected at a high-level in this consultation, their details will be subject to separate consultations and discussions with stakeholders over the summer and we encourage stakeholders to respond to these, as appropriate. We are required to have made a code by January 8th unless the Secretary of State extends this timetable. We currently anticipate meeting this timetable, but this is subject to the outcomes of consultation, the making by Government of a cost sharing statutory instrument, notification to the European Commission and securing Parliamentary approval of the Code.
1.9 Whilst this document focuses on the Code of practice, we note that its measures were always expected to be complemented by a wider set of activity on online copyright infringement including consumer education, the promotion of lawful alternative services and targeted legal action against serious infringers. We therefore intend to monitor how these develop and, in accordance with additional obligations placed on Ofcom in the DEA, we will report regularly to Government on both the effectiveness of the code of practice and also on these broader measures.
1.10 We welcome responses to this consultation by 30th July 2010.