Online infringement of copyright- the Digital Economy Act 2010

29 June 2010

Robin Fry

Where has it come from?

deep frustration within music industry over file sharing

never been a successful criminal action reluctance to confront their own customers

directly?

… so an administrative solution has been demanded….

“three strikes” law but enforced by government / internet service

providers similar models in France, New Zealand, etc.

Previous voluntary protocol

Parties could not agree Limited commitment

> Act finally passed 8th April

… but further codes and statutory instruments needed

OFCOM consultation on “initial obligations” – 31st July

Central to the system is the role of

“internet service providers”

…. and this could cover universities, libraries, museums, wi-fi areas, conference centres etc.

So… what is meant to happen?

STEP 1

Copyright owner identifies that their copyright(s) have been infringed ‘‘by means of internet access’’

This could be:- email of an MP3 file

but more likely via usenet group P2P file-sharing

(Could it cover websites???)

What does copyright owner see or know?

the name of a file, its size, and an “IP address”

- May possibly do a test download – but may not

- May obtain file from different sources

STEP 2

Owner makes a “copyright infringement report” to the “internet service provider” covering• infringement of copyright• description• IP address• time and date

Delivered within 1 month

STEP 3

The ISP sends a “notification” to the subscriber within 1 month with detailed information required, including:-

apparent infringement possibility of appeal other legal services

STEP 4

ISP maintains records provides a “copyright infringement list” to copyright

owners on request lists number of notifications of those subscribers

who have reached threshold

… but does not identify them

Threshold?

3 notifications in any 12-month period?…but will this ever happen???

BPI want to reduce to 2 notifications Business software: just one?

The three letters

…you’ve been a bad boy

…you’ve been a very bad boy

…right, that’s it! I’m going to tell someone about you…

and then …steps to block/limit/restrict internet access

ISP = ‘‘ a person who provides an internet access service’’

Internet Access Service = “an electronic communications service that:- is provided to a subscriber consists entirely or mainly of the provision

of access to the internet; and includes the allocation of an IP address or

IP addresses to the subscriber to enable that access”

‘Subscriber’……

Simply someone who receives the service

No payment needed

“In principle, operators of wi-fi networks would fall within the definition of internet service provider where the service is provided by means of an agreement with the subscribers even where this is oral or implicit”

(OFCOM)

Libraries, Universities / JANET, hotel chains, local authorities etc

Problem known long ago ….

‘We cannot give blanket exemptions for any such establishment. This would send entirely the wrong signal and could lead to ‘’fake’’ organisations being set up, claiming an exemption and becoming a hub for copyright infringement…’’

(BIS, Feb 2010)

But only ISPs with more than 400,000 subscribers (suggestion by Ofcom)

Consultation says this covers only: BT O2 Orange Post Office Sky Talk Talk Virgin Media (OFCOM)

But won’t all the serial infringers simply migrate to smaller ISPs?

Risk: That threshold will be reduced substantially

Further consultation on…

The enforcement of this ‘initial obligations’ code (July)

Code on sharing of costs between ISPs and copyright owner (September)

Technical Obligations Code

STEP 5 (in the DE Act but code still for consultation)

OFCOM prepare progress reports about infringement

OFCOM assesses whether obligations on ISPs are needed to reduce / suspend / limit internet access

Government make order

Subscriber can appeal against….

1. the making of a copyright infringement report

2. notification

3. being on a list

4. taking of a technical measure (eg suspension/blocking of access)

5. any other matter relating to the obligations or the codes

Appeals could be hugely complicated …. and expensive Prove it was me Prove who wrote the work Prove ‘qualification’ for copyright protection Prove exactly who is owner Show me the complete chain of title Prove originality of work Demonstrate it was not fair use It contravenes my human rights The Act is invalid

So who pays for appeals?

Initial obligations ISPs and copyright owners (not

subscribers)

Technical measures ISPs, copyright owners and subscribers

Costs generally All admin costs for initial obligations

= ISPs + copyright owners

75% of ISPs costs?No says BPI - demanding no additional contribution to

ISPs from copyright owners

Technical measures

Subscriber appeals

Other costs

Regulations for ‘blocking injunctions’ Court appeals beyond subscriber appeals Standard disclosure orders against ISPs Data protection issues Referrals to European Court of Human Rights Referrals to European Court of Justice

STEP 6

OFCOM enforce code on ISPs

OFCOM can fine ISPs up to £250,000

Why do need to consider these issues?

You might be an ‘ISP’! The threshold (400,000 subscribers) might well

reduce There might not be a threshold in other areas

eg for blocking injunctions

….or you might be directly liable as a subscriber if you have allowed another person to use a service and they have infringed…

Impact on ISPs1) receive and consider copyright infringement

reports

2) issue notifications

3) keep data

4) issue lists

5) participate in subscriber appeals inc. appeals to court and beyond

6) execute technical measures

7) deal with “blocking injunctions”

8) pay costs

Final thoughts

Was the Act really needed?

Huge costs on everyone involved

Don’t we also need a debate on fair use of copyright /duration of copyright?

Thank you

Robin Fry

Beachcroft LLP

rfry@beachcroft.com