New measures to protect online copyright and inform consumers

26 June 2012

Internet users will be encouraged to download music and films through legal channels under measures outlined today by Ofcom.

Ofcom has published a draft code for consultation that would require large internet service providers (ISPs) to inform customers of allegations that their internet connection has been used to infringe copyright.

The code, which Ofcom is required to publish under the Digital Economy Act 2010,1 includes measures to help inform the public and promote lawful access to digital content such as music and films.

When notifying customers of reported infringements, ISPs must explain the steps subscribers can take to protect their networks from being used to infringe copyright and tell them where they can go to find licensed content on the internet.

Copyright owners are expected to invest in awareness campaigns to help educate consumers about the impact of copyright infringement and further to develop attractive online services to offer their content. Ofcom will report regularly to the Government on the effectiveness of both the code and these broader initiatives from copyright owners.

Claudio Pollack, Ofcom's Consumer Group Director, said:  "These measures are designed to foster investment and innovation in the UK's creative industries, while ensuring internet users are treated fairly and given help to access lawful content.

"Ofcom will oversee a fair appeals process, and also ensure that rights holders' investigations under the code are rigorous and transparent."

How the code will work

The code will initially cover ISPs with more than 400,000 broadband-enabled fixed lines - currently BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media. Together these providers account for more than 93% of the retail broadband market in the UK.

The draft code requires ISPs to send letters to customers, at least a month apart, informing them when their account is connected to reports of suspected online copyright infringement.

If a customer receives three letters or more within a 12-month period, anonymous information may be provided on request to copyright owners showing them which infringement reports are linked to that customer's account. The copyright owner may then seek a court order requiring the ISP to reveal the identity of the customer, with a view to taking legal action for infringement under the Copyright Designs and Patent Act 1988.

Copyright owners can already seek such court orders under existing law, but the Code is designed to enable them to focus legal action on the most persistent alleged infringers.

Appeals

Customers would have the right to challenge any allegation of infringement through an independent appeals body. Ofcom will appoint this body and require it to establish transparent, accessible appeal procedures. Copyright owners will need Ofcom approval of their procedures for gathering evidence of infringement before they can be used under the scheme.

Changes to the code

The key proposals of the first draft code, on which we consulted in May 2010, are unchanged in the code published today. However a number of revisions have been made, including:

  • Evidence-gathering procedures: copyright owners' procedures for gathering evidence of infringement must now be approved by Ofcom, rather than by the copyright owners themselves. Ofcom plans to sponsor the development of a publically-available standard to help promote good practice in evidence gathering;
  • Notification letters: ISPs must now include, in letters to subscribers, the number of copyright infringement reports connected to their account.
  • Appeals: Ofcom has decided that subscribers should have 20 working days to appeal an allegation of infringement. Following a direction from the Government, Ofcom has removed the ability for subscribers to appeal on any grounds they choose; they must now do so on grounds specified in the Digital Economy Act.

Beyond the code, the Digital Economy Act outlined a process for further measures which the Secretary of State might consider to help reduce online copyright infringement. These would require ISPs to take steps (such as internet bandwidth reduction, blocking internet access or temporarily suspending accounts) against relevant subscribers in certain circumstances.

However, those measures could only be considered after the Code has been in force for at least 12 months, and would require further legislation and approval by Parliament. They would also require Ofcom to establish a further independent appeals process with judicial oversight.

Next steps

Ofcom will now consult on the revised draft code.2 Subject to further review by the European Commission, it will be laid in Parliament around the end of 2012. ISPs will then prepare to meet their obligations, and Ofcom will appoint an appeals body. Ofcom currently expects the first customer notification letters to be sent in early 2014.

Ofcom will review the criteria for applying the code to ISPs once the obligations have been up and running for six months.

The revised draft code and consultation, which closes on 26 July 2012, can be found here.

The code includes provisions for sharing of costs between copyright owners and ISPs, as set out in a draft Statutory Instrument on costs being laid in Parliament by the Government. Ofcom is today also publishing a consultation on how these costs are allocated. This consultation, which closes on 18 September 2012, can be found here.

ENDS

NOTES FOR EDITORS

  1. Under section 124D of the Communications Act 2003 (as inserted by the Digital Economy Act 2010), Ofcom has a duty to make a code for the purpose of regulating the initial obligations of ISPs to send notifications and provide copyright infringement lists to copyright owners on request.
  2. Under section 403 of the Communications Act 2003, Ofcom must give notice of an order it is proposing to make, giving at least one month for representations to be made.