Online Infringement of Copyright and the Digital Economy Act 2010
Background and introduction
1.1 The DEA received Royal Assent in April 2010. It followed a number of policy developments related to online copyright enforcement including the Gowers Review of the UK Intellectual Property Framework (2006), the industry-led Memorandum of Understanding process to trial subscriber notifications (2008), and the Government's Digital Britain reports (2009).
1.2 The provisions in the DEA impose new responsibilities on Ofcom to implement and administer measures aimed at significantly reducing online copyright infringement. These measures form part of a multi-pronged approach by Government aimed at reducing online copyright infringement through a complementary mix of enforcement, consumer education and encouragement to industry to develop and promote online services offering lawful access to copyright works.
1.3 The DEA provisions insert amendments to the Communications Act 2003 ("CA03") to create two new obligations for internet service providers. These are referred to as the "initial obligations". They are to:
- Notify their subscribers if the internet protocol ("IP") addresses associated with them are reported by copyright owners as being used to infringe copyright; and
- Keep track of the number of reports about each subscriber, and compile, on an anonymous basis, a list of those subscribers who are reported on above a threshold to be set in the Initial Obligations Code. This list is referred to as a "Copyright Infringement List" ("CIL"). After obtaining a court order to obtain personal details, copyright owners will be able to take action against those included in the list.
1.4 The DEA provides that the implementation and regulation of the initial obligations must be set out in a code. In the absence of an approved code drawn up and agreed by industry, it falls to Ofcom to make a code in accordance with the requirements of the DEA provisions.
1.5 Consequently, on 28 May 2010 we published a consultation document Online Infringement of Copyright and the Digital Economy Act 2010: Draft Initial Obligations Code in which we set out our proposals for the Code. In this interim statement we refer to this consultation as "the May 2010 consultation".
1.6 This interim statement and notice details our proposed conclusions on the May 2010 consultation. It also sets out the general effect of the draft Code which is included at Annex 3, which we are proposing to make. Publication of this interim statement has been delayed due to a number of factors, including a judicial review of the DEA provisions, a subsequent appeal to the Court of Appeal and the revision by Government of secondary legislation in relation to the cost sharing arrangements as a result of that litigation.
1.7 Below, we set out the key proposals that we made in the May 2010 consultation and then set out the amendments we have subsequently made to them.