Digital Economy Bill: Dealing with online copyright infringers

11 January 2010

Rachel Irwin

The introduction of a Digital Economy Bill was announced in the Queen’s Speech on 18 November. Its most headline-grabbing proposal was a measure which could result in online copyright infringers having their internet connections suspended.

The Bill was born of Lord Carter’s Digital Britain report, which contained a range of recommendations relating to the future of Britain’s communications sector and which the Bill is intended to enshrine in law. The stated purpose of the Bill is to “ensure communications infrastructure that is fit for the digital age”. Aside from the controversial proposals relating to online copyright infringement, the Bill also provides for the improvement of digital security and safety, imposes a new duty on Ofcom to encourage investment in broadband and introduces changes to radio licensing regulations.

Measures against copyright infringement

The Bill’s focus on online copyright infringement is intended to target illegal file-sharers who breach copyright when they download music or films from the internet. The Bill proposes a two-stage process for dealing with online copyright infringement.

The first stage of the process would include a consumer-education programme and a system of warning letters sent by Internet Service Providers (ISPs). 

Under the new legislation, a copyright owner would choose to report an infringement to an ISP. The ISP would then be required to take action against the alleged infringer(s) by sending them a notification letter. 

The Bill also contains proposals for the future introduction of powers to impose technical sanctions on copyright infringers, such as disconnection. If the first stage of consumer education coupled with warning letters scheme proves ineffective, this second stage of the process will be introduced in the spring of 2011. However, the criteria which would be used to assess the effectiveness of the first set of measures are not currently very clear. The Government has said it will only force ISPs to suspend users’ access if the first series of measures fails to cut online copyright infringement by at least 70%.  However, the timetable and assessment criteria for measuring this 70% reduction have not been set out. 

Copyright owners may be required to pay contributions towards the costs incurred by ISPs and Ofcom in managing online copyright infringement.

The Bill also includes power to amend the Copyright, Designs and Patents Act 1988 in the future if new technological developments open up new ways of infringing copyright.

Reception of the Bill

The Bill has been welcomed by many in the music and film industries, including the BPI, a trade organisation which represents the UK’s recorded music business. But the Bill has not been universally welcomed. For example, the Open Rights Group (a lobby organisation) is urging people to contact their MP to oppose the plan. The group believes that the illegal actions of one member of a household should not be visited on all others, which would happen if a household’s internet connection was cut off because one person was infringing copyright.

TalkTalk is among a group of ISPs who are critical of the Bill and who would prefer to see a system of fines introduced for persistent online copyright infringers. Andrew Heaney, TalkTalk’s head of strategy and development, has created a petition on the Number10.gov.uk website which calls for the abandonment of the proposal to disconnect those who download illegal content. The petition has generated a significant amount of public interest.

In statements to the BBC, BT and the internet providers’ trade body, the ISPA, both expressed scepticism about the Bill. The ISPA stated that this legislation would do little to address the underlying problem. 

On 24 November, the European Parliament approved the final draft of a package of EU telecoms reforms. The package contains a provision that infringing users’ internet access can only be restricted following a “prior, fair and impartial procedure”, in which the “right to be heard” is guaranteed.

If it comes into force as EU law, this requirement will have to be met in any English Digital Economy Act. In its current draft form, the Digital Economy Bill does not provide details of the procedure to be followed should suspension of users’ internet access become a real, rather than a threatened, sanction.  The Bill provides that, should ‘technical obligations’ (including suspension) be imposed, Ofcom will make a code which regulates such obligations.  The Government’s intention is presumably that the code will achieve compliance with the telecoms package.

Comment

The detail of this Bill has not yet been thoroughly worked through and it will be interesting to see if the Government can achieve Royal Assent before this year’s general election.

This tight timescale coupled with probable opposition from ISPs and the digital user community all seem to be factors suggesting that the Bill in its current form may never enter into force.