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Scope of Ofcom copyright code to be determined by appeals body

Out-Law News | 24 Oct 2011 | 3:49 pm | 3 min. read

An independent appeals body will determine the precise scope of new regulations on online copyright infringement, Ofcom has said, according to media reports.

The UK's communications regulator said that it was unable to issue "clear and definitive guidance" on how the new regulations it is writing would be interpreted, according to a report by technology news service ZDNet. Under the Digital Economy Act (DEA) Ofcom is obliged to draw up new regulations on internet service providers' (ISPs) involvement in attempts to stop copyright infringement. 

In a draft code of practice published in May last year, Ofcom said that internet users should receive three warning letters from their ISP if they are suspected of copyright infringements online. 

Details of illegal file-sharers that receive more than three letters in a year would be added to a blacklist, the draft code said. Copyright holders would have access to the list to enable them to identify infringers. 

Under the draft code, ISPs could also have to suspend users' internet access if they are found to be illegally downloading copyrighted material. Ofcom's draft code enables users to appeal against copyright infringement notices they receive to an independent appeals body. 

Ofcom included definitions of key terms referred to in the proposed regulations in its draft, including 'subscriber' and 'ISP', but has now said that it would be up to the appeals body to interpret how they are applied, according to ZDNet. 

"Drafting the code itself has chosen to be a very complex task... there are a number of issues that have proven particularly challenging," Campbell Cowie, director of internet policy at Ofcom, told a Westminster e-Forum on the DEA on Thursday, according to ZDNet's report.

"We'd love to be able to provide clear and definitive guidance on how those definitions are to be interpreted in the context of the code. We're bound by legal requirement to recognise the independence of the appeals body in deciding on such matters and context-specific nature of those definitions. I do appreciate the frustration many of you feel on this issue and we'll provide as much support as we can," Cowie said, according to the report. 

In its draft code Ofcom proposed that only ISPs providing "a fixed internet access service to more than 400,000 subscribers" should have to enforce the regulations. 

Under sections 17 and 18 of the DEA other anti-piracy measures can be drawn up at the behest of the Culture Secretary. Those measures would see courts decide whether to force ISPs to block access to pirated copyright works. In August the Government announced that it had no plans to bring any new regulations under sections 17 and 18 into law "at this time", but last month Culture Secretary Jeremy Hunt said Government may yet intervene with new laws to tackle websites that "ignore" court rulings on copyright. 

"We need to explore all options to make life more difficult for sites that ignore the law," Hunt said. 

"I believe these could include a responsibility on search engines and ISPs to take reasonable steps to make it harder to access sites that a court has deemed contain unlawful content or promote unlawful distribution of content," Hunt said. 

Voluntary agreements could be set up to help provide solutions to online copyright infringement, but if they cannot be established the Government will propose new measures under law, Hunt said. 

Richard Mollet, chief executive of the Publishers Association, said that voluntary agreements were already being negotiated, according to ZDNet. 

"Sky and Virgin Media ... are working very constructively with rights holders, looking at ways in which we can develop voluntary solutions on things like site blocking and haven't been standing every step of the way in front of the DEA. Surely that must be the way ahead for us all in the wider creative economy?" Mollet said. 

Andrew Heaney, executive director of strategy and regulation at TalkTalk, said the DEA was "rotten to the core" and that consumers would end up paying ISPs' share of the cost in enforcing Ofcom's code, according to the ZDNet report. 

BT and TalkTalk are currently preparing to challenge the legality of the DEA in court. The ISPs were granted the right to appeal a High Court ruling issued earlier this year which rejected the companies' claims that the DEA violated EU laws. 

In a judicial review ruling in April the High Court rejected claims by the ISPs that the DEA violated EU laws on privacy and electronic communications.  The EU's Privacy and Electronic Communications Directive governs what information can be gathered from electronic communications and says that ISPs should not be responsible for material sent over their network unless informed about infringements of the law.