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Changing scope of anti-piracy code would need Parliamentary and EU approval, says Ofcom

Ofcom would have to consult on and gain Parliamentary and EU approval for any changes it wishes to make to the scope of its proposed new anti-piracy code once the initial code is finalised, it has said.

Ofcom confirmed to Out-Law.com that the scrutinising processes would need to take place after rights holder advocacy group the Creative Coalition Campaign (CCC) raised the issue in response to the regulator's consultation on its proposed anti-piracy code.

Under Ofcom's current plans "ISPs with more than 400,000 broadband-enabled fixed lines – currently BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media" would be required to send notifications to their subscribers if it is suspected their account has been used to break copyright laws. Ofcom is required to draw up an anti-piracy code under the Digital Economy Act (DEA).

The draft code has to be approved by both Houses of Parliament and the European Commission before it can come into effect.

However, if Ofcom wished to later require that mobile operators or additional fixed line broadband providers comply with the notification regime, the regulator would require to consult on such plans, the code amendments would have to be put before both Houses and the Commission again, and time be given to the new providers to set up systems to allow them to comply with the code. The process would mean that it could take many months, and possibly over a year, for any changes to take effect.

"We are committed to reviewing the scope of the code six months after it comes into effect," the spokesman told Out-Law.com. "Were we then to decide that the scope might change then any such changes would need to be subject to Parliamentary and European scrutiny," he confirmed.

In its consultation response (3-page / 75KB PDF) the CCC, which represents copyright owners, creative industry workers unions and creative sector businesses, called on Ofcom to revise the current drafting of its anti-piracy code in order to allow for any future changes to its scope to be incorporated quickly.

"We understand that the only way in which additional providers could be brought within scope would be to re-draft the code, requiring the process of public consultation, Parliamentary and European Commission approval procedures to be repeated all over again," CCC said. "In our view this, combined with the length of the review Ofcom has committed to undertake, will lead to a substantial delay to extending the provisions of the Act to cover a sector that is likely to see rapid increases in infringing activity."

"Ofcom should explore the possibility of inserting a mechanism into the code that would trigger or speed up the process of bringing mobile operators within scope, should infringement on their networks substantially increase. This mechanism should avoid the need to rewrite the code and subject it to consultation and Parliamentary approval all over again," it added.

CCC said its members are "concerned" at plans to "exclude mobile operators from the DEA provisions". It said that online infringement of music was "already a significant problem on mobile networks" and anticipated that the problem would only grow once the operators start offering "faster internet services" to consumers following the 4G spectrum auction due later this year

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