Out-Law News | 26 Jun 2012 | 3:11 pm | 4 min. read
Ofcom has published a revised draft anti-piracy code (129-page / 810KB PDF) that would require "ISPs with more than 400,000 broadband-enabled fixed lines – currently BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media" 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 such a code under the Digital Economy Act (DEA) and published original proposals over the operation of the scheme in 2010. However, following criticisms from digital rights groups and a challenge over the lawfulness of the DEA in the UK courts that required changes to be made to how the scheme is to be paid for, Ofcom has only now amended to its plans.
Under the revised proposals ISPs would issue "standard form" notifications to customers on the basis of evidence of alleged online copyright infringement gathered by rights holder groups and compiled in a 'copyright infringement report' (CIR). The evidence gathering procedures must be approved by Ofcom. The infringement reports must set out when the alleged infringement was said to have occurred and when the evidence was gathered. Ofcom's code also sets out the standards that infringement reports must meet.
"A copyright owner may only send a CIR if it has gathered evidence in accordance with the approved procedures which gives reasonable grounds to believe that: a subscriber to an internet access service has infringed the owner’s copyright by means of the service; or has allowed another person to use that service and that person has infringed the owner’s copyright by means of that service," the regulator's proposals said.
ISPs that issue subscribers with three letters within the space of a year would add the anonymous details of those customers to a 'copyright infringement list'. Rights holders would be able to request access to the list each month and could seek a court order obliging the ISPs to disclose the identity of the suspected infringers so that they can take legal action against them under the Copyright, Designs and Patents Act.
Ofcom said the code would help rights holders to "focus legal action on the most persistent alleged infringers." However, digital rights campaigners the Open Rights Group (ORG) said it was a "cumbersome policy" and that the appeals process was a "joke".
Under Ofcom's plans suspected infringers would generally have 20 working days to challenge warning letters from the moment they receive them. An "independent appeals body" will be appointed by the regulator to deal with the cases, although the suspected infringers would have to pay a refundable £20 fee to have their appeals heard.
Appeals could be brought on the grounds that the "apparent infringement to which a copyright infringement report relates was not an infringement of copyright" or if "the copyright infringement report did not relate to the subscriber’s IP address at the time of the apparent infringement." In addition, subscribers could claim that they were not responsible for the allegedly infringing act and "took reasonable steps to prevent other persons infringing copyright by means of the internet access service". A final ground of appeal is if a rights holder or ISP acts in breach of the code.
Ofcom said it revised its original draft code to remove subscribers' general right of appeal "on any other ground on which they choose to rely" at the behest of Government.
The regulator said it would be for the independent appeals body to determine the outcome of appeals on a case-by-case basis.
"The DEA provisions are clear that the burden of evidence falls on the copyright owner and ISP respectively to prove that an online copyright infringement has taken place and that it is associated with the subscriber's IP address," the regulator said. "While quality assurance may provide the appeals body with a degree of comfort with regard to the quality of copyright owners’ and ISPs’ procedures, it is for the appeals body to determine whether this evidence is sufficient in any given case."
"Any attempt by Ofcom to direct or constrain the way this assessment is made risks fettering the discretion of the appeals body in a particular case," it added. "The DEA provisions are also clear that the appeals body must find in favour of the subscriber where it determines that the act constituting the apparent infringement was not done by the subscriber and the subscriber took reasonable steps to prevent other persons infringing copyright by means of his/her internet access service."
Ofcom said that what constitutes 'reasonable steps' was to be determined by the appeals body and that it had "therefore removed the requirement proposed in our consultation that it should take into account the technical ability and knowledge of the subscriber in making its determination."
The revised proposals, which also include a sharing of costs order (131-page / 1.37MB PDF), are open to consultation until 26 July. It said that, subject to further review by the European Commission, the code would then be laid before Parliament "around the end of 2012" with the first warning letters then being sent out in early 2014.
Jim Killock, executive director of the ORG, said: "Digital revenues are going up, the music and film industry are moving in the right direction, yet this cumbersome policy is still lumbering forward."
"Ofcom are being asked to put lipstick on a pig with this code. The appeals are a joke. The Government has decided that 'I didn't do it' is not a defence. Some people will almost certainly end up in court having done nothing wrong," he added.
However, Claudio Pollack, Ofcom’s consumer group director, said that regulator would "oversee a fair appeals process, and also ensure that rights holders’ investigations under the code are rigorous and transparent."
Rights holders groups from across the creative industry expressed support for the new code.
"These measures are vital to protect the jobs and livelihoods of workers in the creative industries and will help ensure we continue to make high quality creative content in the UK," Christine Payne, chair of the Creative Coalition Campaign said in a statement.
Ofcom said that it would monitor efforts by rights holders to establish more legal content platforms, educate consumers about the problems of piracy and in taking "targeted legal action against serious infringers" as a means of deterrent against copyright infringement.
Ofcom also said that the Culture Secretary has asked it to review the effectiveness of the code to determine whether new regulations that could require ISPs to block access to content should be introduced.