So far, this guide has focussed on the provisions within the Digital Economy Act 2010 that deal with online infringement of copyright. This final part will briefly cover the rest of the Act and reiterate some key facts.

Internet Domain Names

Sections 19 to 21 of the Act create new sections 124N to 124R in the Communications Act that grant the government powers over the Internet Domain Registries. These powers are aimed at tackling “serious relevant failures in relation to a qualifying internet domain registry” and consist of the government being able to complain to the registrars about these unspecified failures and, if they fail to deal with them, appoint a manager to take over the registry in order to remedy the failures.

Television Channels

The following sections cover a variety of issues with television. Sections 22 and 23 include the duties of Channel 4 and the monitoring and enforcement of these duties. Sections 24 to 28 cover the licensing of channels 3 and 5, including public teletext services. This is followed by a section on broadcasting in Gaelic.

Radio services

Sections 29 to 39 contain a lot of amendments to the laws regarding radio licensing, including provisions for a digital switch-over for radio. They also grant the government permission to sell off further parts of the radio (or electromagnetic spectrum).

Video Games

Sections 40 and 41 amend the Video Recordings Act 1984 to introduce provisions about the censorship and classification of Video Games. Prior to the Digital Economy Act only the cinematic elements of video games needed to be classified, which was done by the BBFC and was only legally enforceable for particularly extreme cases. The Digital Economy Act removes the exemption for video games and adds various provisions for how they could be classified – it covers from 12-ratings and up. It also allows the government to appoint or establish a body to review and classify video games for them. It is expected that the existing body PEGI will take up this role from April 2011.

Copyright Penalties and Lending Rights

Finally, the Act makes some changes to the penalties for copyright infringement and the public lending right. Section 42 raises the limit on the fine that can be issued for criminal copyright infringement – the cap is raised from £5,000 in England and Wales, or £10,000 in Scotland, to £50,000. Section 43 extends the public lending right (which allows libraries to loan out works) to cover audio books and e-books. However, it still imposes limits such as not allowing a library to lend out such books electronically (i.e. through the Internet).

Summary

• The measures on copyright infringement will not come into effect until January 2011 at the earliest.
• All these measures will involve (initially) is sending letter to those accused of infringing.
• ISPs are under no obligation to monitor their subscribers’ Internet use.
• Technical measures cannot come into force until further consultation has been done and the regulations have been approved by Parliament.
• It is up to the copyright owner to prove the infringement happened and an IP address was used.
• It is up the the accused to prove that they did not commit the infringement if “their” IP address was allegedly used.
• The government could put in place a method whereby websites and content could be blocked by ISPs due to alleged copyright infringement.

One of the most controversial parts of the Digital Economy Act 2010 is Section 17, entitled “Power to make provisions about injunctions preventing access to locations on the Internet”. Put simply, this could be used to establish a system that would allow anyone to have content or websites blocked by ISPs based on an accusation of copyright infringement.

What Measures Existed Before

Before the Digital Economy Act, it was possible for a copyright owner to gain an injunction against a service provider from the High Court. Under Sections 97A and 191JA of the Copyright, Designs and Patents Act 1988 (as amended by the Copyright and Related Rights Regulations 2003), the Court can grant an injunction if it is proved they have “actual knowledge” that someone is “using their service to infringe copyright” – s97A(1). In practice, this means the copyright owner must notify the service provider and then take them to court (where they would need to prove the infringement) before anything would have to be done. The powers potentially available under the Digital Economy Act take this much further.

What Could Happen Under Section 17

It should be noted that all Section 17 does is allow the government to create these provisions at a later date and the ministers involved have indicated that they have no intention, at the moment, of using this power. Further, these powers could not be used unless the minister involved is satisfied that online copyright infringement is having a “serious adverse effect on business or consumers” – s17(3)(a), that the measures are “proportionate” to addressing that effect – 17(3)(b) – and that it would not adversely affect national security or the detection of crime – s17(3)(c). However, all three conditions are subjective and depend on one person’s opinion. The secondary legislation needed to use these powers must be passed through Parliament, but not with the full scrutiny of an Act.

Section 17(1) allows provisions to be made permitting a blocking injunction to be made against any location on the Internet which a court is satisfied has been, is being or is likely to be used for copyright infringement, or in connection with any activity involving copyright infringement. There are a lot of conditions here, so they will be dealt with individually:

• A blocking injunction is an order, made by a court, that would force a service provider to prevent access to part of their service or face criminal charges. This could involve a web-host having to remove content or sites on their system and ISP blocking access to particular websites or addresses, or any other interpretation a court or lawyer could come up with. There is no reason why such an injunction would have to have a time limit, nor that the operators of the location need have a right to be involved with the court proceedings.
• The injunctions can be made against any location on the Internet – s17(1). This is a particularly broad definition (although it would likely not cover forcing ISPs to block protocols) and could be used against entire domains or web-hosts, individual sites or individual files on a site. It is likely it could be used to block access to certain other “locations” such as chat rooms or any other aspect of the Internet that a judge could be convinced is a location.
• It is not necessary to show that the location is currently being used to aid copyright infringement. The law is again particularly broad in that it includes locations that were used in the past, but are no longer, or even that might be in the future – s17(4). While there are precedents for handing out punishments for potential actions in the future, it could be considered unusual when dealing with non-criminal copyright infringement.
• Finally, the location being blocked does not have to be (or to have been, or to be likely to be) hosting infringing material. The location must make available a substantial amount of material in a way that infringes – s17(4)(b), be a place from which such material can be obtained – s17(4)(a), or somewhere that could be used to facilitate access to such a location – s17(4)(c). This could cover not only sites that host infringing content themselves and those that provide means of accessing content (such as sites which index torrent files containing unlicensed material) but even those that link to such sites. In theory, doing this (something that many sites, including the BBC’s, do) could make this website a target for such an injunction.

The Fine Details

When considering whether or not to grant an injunction there are several things they consider including any steps taken by either the service provider or location operator to prevent the copyright infringement, any steps taken by the copyright owner to “facilitate lawful access” to the content, whether an injunction could have a disproportionate effect on legitimate interests and “the importance of freedom of expression” – s17(5). The law also makes it clear that no injunction can be granted until both the service provider and the location operators have been notified of the application – s17(6). Finally, it is worth noting that while the provisions under this section may prevent a Court from ordering the service provider to pay the costs of proceedings, it need not – s17(7)(c). As such, it could be that the service provider is required to pay any or all costs of bringing the case to the Court (as was required in one of the drafts of this section). This would place considerable pressure to any provider to comply with the mere threat of someone seeking an injunction and could result in service providers “voluntarily” blocking locations on request.

Subscriber Appeals

Section 124K of the Communications Act 2003 (as amended by the Digital Economy Act) is dedicated to setting up the rules for an appeals process. The process is different depending on whether the subscriber is appealing against a part of the Initial Obligations Code or a technical measure. In both cases, subscribers have the right to appeal to a person who is independent of ISPs, copyright owners and Ofcom as far as the appeal is concerned (under Section 124K (2) of the Act). In the case of technical measures, a subscriber also has the right of appeal to the First-tier Tribunal, most likely the existing Copyright Tribunal defined by Chapter VIII of the Copyright, Designs and Patents Act 1988. It should be noted that while decisions of the Tribunals can be appealed to the Courts, there is no direct route to a Court in either case.

Burdens of Proof

As the proceedings involved are of a civil nature the allegations need only be proved “on the balance of probabilities“. Essentially this means that it must be more likely the accusation is true than it is not. This contrasts to criminal proceedings where things must be proved “beyond reasonable doubt”. In terms of who must prove what, according to Section 124K (5) the following must be proved by either the copyright owner or the ISP:

1. that the infringement occurred and
2. that the report is about the subscriber’s IP address

Under 124K (6), it is up to the subscriber to show:

1. that the infringement was done by someone else, or
2. that they took reasonable steps to prevent others infringing copyright through their service

if they wish to use either as a defence. However, at no point are the reasonable steps defined in the Act.

Results of an Appeal

Under 124K (7) whoever is determining the appeal can award compensation to a subscriber (to be paid by either the copyright owner or ISP) in the event the appeal finds in their favour and reimburse them for reasonable costs, unless it would be “unjust” to do so – 124K(9). In the case of technical measures, the appeal also has the power to confirm, withdraw or replace any technical measure imposed where it is seen fit to do so – 124K(9)(a) – or just hand the decision over to Ofcom – 124K(9)(d). The final part makes it clear that no technical measures can be imposed until the time limit for bringing appeals including those to the Tribunal has ended and any appeal has ended – 124K(11). However, it does suggest that a subscriber can waive their right to appeal, but not details are given on why or how this would occur.

Obligations to Limit Internet Access

These are defined in Sections 9 to 12 of the Digital Economy Act (which create Sections 124G to 124J of the Communications Act). They consist of technical obligations (imposed by the government on ISPs) and technical measures (put in place by ISPs on their subscribers). However, Section 124H (2) states that these cannot be put into place until at least 12 months after an Initial Obligations Code is in force but this does not stop Ofcom working on the Code before then. The earliest these obligations are likely to come into force is January 2012.

Technical Obligations

Under Section 124H (1) of the Communications Act 2003 (as amended by the Digital Economy Act) the government may impose “technical obligations” on ISPs if they consider it appropriate. A technical obligation is defined in Section 124G (2) as an obligation on an ISP to impose some sort of “technical measure” against some or all of its subscribers, solely for “preventing or reducing” online copyright infringement, provided those subscribers are already on a copyright infringement list as defined in the Initial Obligations Code. This only means that the subscriber must have received at least one notification under the IOC – as with much of the content of the Digital Economy Act, the rest of the details are left to Ofcom.

Technical Measures

The types of technical measures that can be imposed are listed in Section 124G (3) and are listed as follows:

1. Something that “limits the speed or other capacity of the service provided to a subscriber” – this would include bandwidth throttling or placing download caps.
2. Something that “prevents a subscriber from using the service to gain access to particular material, or limits such use” – this would likely be website-, protocol- or port-blocking targeted at the specific subscriber (rather than the entire service).
3. Something that “suspends the service provided” – and this is the infamous disconnection. Note that there is nothing that states these measures must be removed after a certain time period, so this “suspension” could last indefinitely.
4. Something that “limits the service provided … in any other way” – and finally a completely generalised measure. Essentially, this means that government can force any limit on anyone’s Internet connection provided they can show it might prevent or reduce online copyright infringement.

The Technical Obligations Code

As with the first set of obligations, the technical measures must also be regulated by a code, created by Ofcom and approved by Parliament. This is defined in Section 124I of the Act and the following section lays out a set of conditions it must satisfy. These are fairly similar to the requirements of the Initial Obligations Code and include that the Code must be objectively justifiable – Section 124J (1)(e), proportionate – 124J (1)(g) and transparent – 124J (1)(h).

The Act itself (from now on, referring to sections 3-18, and the new sections 124A-124N they add to the Communications Act – it is a little technical) does not contain any actual measures. The only solid duties it places are on Ofcom (the “Independent regulator and competition authority for the UK communications industries”), asking them to produce reports on everything to do with online copyright infringement on a yearly basis and produce an Initial Obligations Code and a Technical Obligations Code. These code contain the measures for “tackling” online copyright infringement, but even the initial code is unlikely to come into force before 2011.

The Initial Obligations Code

Sections 3-7 of Digital Economy Act form a framework for an Initial Obligations Code. This is a set of rules, drafted or approved by Ofcom (and to be put into law via a statutory instrument by Parliament), which gives instructions to ISPs and copyright owners on how they can or must deal with cases involving online copyright infringement. The Act contains some guidelines as to what must be included in the Code (in the new Section 124E of the Communications Act but it is up to Ofcom to come up with a final version. This is expected to be done by September, so it can be sent to the EU for approval (about three months) before coming into force early next year.

How it Works

The idea behind the Initial Obligations Code is quite straightforward, but how it works is a little complicated:

1. A Copyright owner (A) (such as a record label, film studio, or even the author of this blog post) finds evidence that suggests that a certain IP address is being used to infringe some of their copyright.
2. (A) finds out which ISP (B) is responsible for assigning that IP address and sends them a copyright infringement report (CIR) which contains their accusation (and a few other things listed in Section 124A (3) of the Communications Act).
3. (B) checks their records to see which of their subscribers (C – this could be you) was assigned that IP address at the time the infringement allegedly occurred and sends them a notification (via email or post) telling them about it (and including various things listed in Section 124A (6) of the Communications Act).
4. (C) can contest this, on various grounds (although not necessarily on the grounds that they did not do it) through a badly-defined appeals process but if they do not, or if their appeal is unsuccessful, the ISP (B) keeps a record of them and the number of CIRs they (B) has received about them (C).
5. After a certain threshold has been reached (this could be a certain number of CIRs about a particular subscriber, a certain number of notifications have been sent or any other threshold the code contains) the ISP (B) puts that subscriber (C) on a copyright infringement list (CIL) – a list of all the CIRs they have received (more specifics, although not many, in Section 124B (2) of the Communications Act).
6. At some point, the copyright owner (A) can demand that the ISP (B) hand over their CILs – however (and this is an important bit) the information must not enable (A) to identify (C). Essentially, all this list does is tell the copyright owner which of the CIRs they send are about the same subscriber (C) but without telling them who that subscriber is.

That is it. The result of this is that the copyright owner has a list of which subscribers they have accused of infringing their copyright repeatedly. Note: in order to take any action against them (e.g. sue them or send them their own threatening letters) the copyright owner still needs to take the ISP to court to obtain the subscriber’s details and identity. These are the details that are in the Digital Economy Act itself. Any other information about this has likely come from the draft code published by Ofcom, rumours or misinformation.

How will this Affect You?

At this point, it should be emphasised that this Code is still being drafted and the earliest it will come into force is January 2011. At the moment Ofcom are consulting on the draft code and all those interested are encouraged to participate in the consultation. However, once in force, what will happen to the individual subscriber is not that different to what has been happening already, but on a larger scale and with a few more protections for them.

The first a subscriber will know about the process is when they receive their first notification from their ISP (under point 3 above). This will give details as to what is going on, why it has been received and the various processes that will follow. It should also contain details on the appeals process (if there is one) and any possible defences that can be used. The subscriber then may receive other warning letters but then it will be a case of waiting to see whether or not the copyright owner takes further action – most likely in the form of a threatening letter (of the type being sent by some law firms already) or possibly going straight to legal summons.

A digital economy is an economy that is based on electronic goods and services produced by an electronic business and traded through electronic commerce. That is, a business with electronic production and management processes and that interacts with its partners and customers and conducts transactions through Internet and Web technologies.

Essentially, it is an economy based on the internet and other electronic means.

The Digital Economy Act 2010
It is also the name given to an UK Act of Parliament, namely the Digital Economy Act 2010. The Act received Royal Assent on 8th April 2010 and with the exception of certain provisions, such as a three strikes policy with regards to infringement notification, came into force on 8th June 2010. The legislation attempts to regulate the digital economy, in particular, copyright infringement and piracy. Ever since its ratification, there has been widespread criticism of its measures, with some even advocating a petition to have the legislation repealed. For the latest news regarding the current state of challenges to the Act and information on how you can get involved, please see the relevant category regarding the Act.

DigitalEcono.me
This website was created in response to the passing of the Digital Economy Act 2010. It was originally our mission to provide a type of educational resource to the British public, so they could better understand the provisions of the Act. However, as time has moved on, and similar legislation in other countries has sprung up, we now strive to provide the same level of guidance, whilst not being confined to the area of UK law.

We hope this can be of benefit to you.

Love

The DigitalEcono.me Team