Digital Bill now the Digital Act!

19 April 2010

Digital Bill now the Digital Act!

By Michael Coyle

The Digital Economy Act 2010

Interested parties raised an eyebrow or two this month as the Digital Bill became an Act. The Bill completed all of its parliamentary stages in both Houses, and received its Royal Assent (necessary before it can become an Act of Parliament i.e. law).

We doubt very much if the Queen has strong views on filesharing. Some amendments were made during the committee and ping pong stages but the contentious issues remain namely the requirement on ISPs to monitor filesharing more closely. Section three of the Act sets out the ISP's obligation to notify subscribers of reported infringements and the obligations of internet service providers.

The Act has created new responsibilities not only for ISPs but also for Ofcom and sets out two initial obligations on ISPs to seek to secure a coordinated approach, involving both copyright owners and ISPs. If these measures fail the Secretary of State may require the ISP to implement technical measures against serious repeat offenders.

Section 3 applies where it appears to a copyright owner that:-

a subscriber to an internet access service has infringed the owner's copyright by means of the service; or (b) a subscriber to an internet access service has allowed another person to use the service, and that other person has infringed the owner's copyright by means of the service. The owner may make a copyright infringement report to the ISP who provided the internet access service once the Code as referred to above is in force. A draft code is due to be published in or around 10 May of this year.

What is a copyright infringement report?

A "copyright infringement report" is a report that (a) states that there appears to have been an infringement of the owner's copyright; (b) includes a description of the apparent infringement including evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered and is sent to the ISP within the period of 1 month beginning with the day on which the evidence was gathered.

An ISP who receives a copyright infringement report must notify the subscriber of the report if the code obliges the provider to do so. This notification must be sent to the subscriber within the period of 1 month beginning with the day on which the provider receives the report.

This notification must include (a) a statement that the notification is sent under this section in response to a copyright infringement report; (b) the name of the copyright owner who made the report; (c) a description of the apparent infringement (d) information about subscriber appeals and the grounds on which they may be made; (e) information about copyright and its purpose; (f) advice, or information enabling the subscriber to obtain advice, about how to obtain lawful access to copyright works; (g) advice, or information enabling the subscriber to obtain advice, about steps that a subscriber can take to protect an internet access service from unauthorised use; and (h) anything else that the code requires the notification to include.

The ISP must also provide (a) a statement that information about the apparent infringement may be kept by it; (b) a statement that the copyright owner may require the provider to disclose which copyright infringement reports made by the owner to the provider relate to the subscriber; (c) a statement that, following such a disclosure, the copyright owner may apply to a court to learn the subscriber's identity and may bring proceedings against the subscriber for copyright infringement; and (d) where the requirement for the provider to send the notification arises partly because of a report that has already been sent, a statement that the number of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures.

Obligation to provide infringement lists to copyright owners

In addition an ISP must provide a copyright owner with a copyright infringement list for a period if (a) the owner requests the list for that period; and (b) an initial obligations code requires the internet service provider to provide it.

What is a "copyright infringement list"?

It is a list that (a) sets out, in relation to each relevant subscriber, which of the copyright infringement reports made by the owner to the provider relate to the subscriber, but (b) does not enable any subscriber to be identified.

The ISP's were not too impressed. Mr Heaney, TalkTalk's director of strategy and regulation, said "This is made all the more appalling by the ability of big music and film companies to influence government and the absence of any proper debate or scrutiny by MPs - only 5% of MPs turned up for the brief debate yesterday and the other important parliamentary stages will be bypassed in the wash-up process".

It is going to add to and increase the work load of all the ISPs and it will be interesting to see how they react to the Act as time goes on.

Michael Coyle is a Solicitor Advocate and has advised both rights holders and accused of filesharing. He can be contacted at michael.coyle@lawdit.co.uk <mailto:michael.coyle@lawdit.co.uk>