Online infringement of copyright - the Digital Economy Act June 2010 Robin Fry

Where has it come from?  deep frustration within music industry over file sharing  never been a successful criminal action  reluctance to confront their own customers directly?

… so an administrative solution has been demanded….  “ three strikes” law  but enforced by government / internet service providers  similar models in France, New Zealand, etc.

Previous voluntary protocol  Parties could not agree  Limited commitment > Act finally passed 8 th April … but further codes and statutory instruments needed  OFCOM consultation on “initial obligations” – 31 st July

 Central to the system is the role of “internet service providers”  …. and this could cover universities, libraries, museums, wi-fi areas, conference centres etc.

So… what is meant to happen? STEP 1  Copyright owner identifies that their copyright(s) have been infringed ‘‘by means of internet access’’ This could be:-  of an MP3 file but more likely via  usenet group  P2P file-sharing (Could it cover websites???)

What does copyright owner see or know?  the name of a file,  its size, and  an “IP address” - May possibly do a test download – but may not - May obtain file from different sources

STEP 2 Owner makes a “copyright infringement report” to the “internet service provider” covering infringement of copyright description IP address time and date Delivered within 1 month

STEP 3 The ISP sends a “notification” to the subscriber  within 1 month  with detailed information required, including:-  apparent infringement  possibility of appeal  other legal services

STEP 4 ISP maintains records  provides a “copyright infringement list” to copyright owners on request  lists number of notifications of those subscribers who have reached threshold … but does not identify them

Threshold?  3 notifications in any 12-month period? …but will this ever happen???  BPI want to reduce to 2 notifications  Business software: just one?

The three letters  …you’ve been a bad boy  …you’ve been a very bad boy  …right, that’s it! I’m going to tell someone about you… and then …steps to block/limit/restrict internet access

ISP = ‘‘ a person who provides an internet access service’’  Internet Access Service = “an electronic communications service that:-  is provided to a subscriber  consists entirely or mainly of the provision of access to the internet; and  includes the allocation of an IP address or IP addresses to the subscriber to enable that access”

‘Subscriber’……  Simply someone who receives the service  No payment needed

“In principle, operators of wi-fi networks would fall within the definition of internet service provider where the service is provided by means of an agreement with the subscribers even where this is oral or implicit” (OFCOM)

Libraries, Universities / JANET, hotel chains, local authorities etc Problem known long ago …. ‘We cannot give blanket exemptions for any such establishment. This would send entirely the wrong signal and could lead to ‘’fake’’ organisations being set up, claiming an exemption and becoming a hub for copyright infringement…’’ (BIS, Feb 2010)

But only ISPs with more than 400,000 subscribers (suggestion by Ofcom) Consultation says this covers only:  BT  O2  Orange  Post Office  Sky  Talk Talk  Virgin Media (OFCOM)

 But won’t all the serial infringers simply migrate to smaller ISPs?  Risk: That threshold will be reduced substantially

Further consultation on…  The enforcement of this ‘initial obligations’ code (July)  Code on sharing of costs between ISPs and copyright owner (September)

Technical Obligations Code STEP 5 (in the DE Act but code still for consultation)  OFCOM prepare progress reports about infringement  OFCOM assesses whether obligations on ISPs are needed to reduce / suspend / limit internet access  Government make order

Subscriber can appeal against…. 1.the making of a copyright infringement report 2.notification 3.being on a list 4.taking of a technical measure (eg suspension/blocking of access) 5.any other matter relating to the obligations or the codes

Appeals could be hugely complicated …. and expensive  Prove it was me  Prove who wrote the work  Prove ‘qualification’ for copyright protection  Prove exactly who is owner  Show me the complete chain of title  Prove originality of work  Demonstrate it was not fair use  It contravenes my human rights  The Act is invalid

So who pays for appeals? Initial obligations  ISPs and copyright owners (not subscribers) Technical measures  ISPs, copyright owners and subscribers

Costs generally  All admin costs for initial obligations = ISPs + copyright owners  75% of ISPs costs? No says BPI - demanding no additional contribution to ISPs from copyright owners  Technical measures  Subscriber appeals

Other costs  Regulations for ‘blocking injunctions’  Court appeals beyond subscriber appeals  Standard disclosure orders against ISPs  Data protection issues  Referrals to European Court of Human Rights  Referrals to European Court of Justice

STEP 6  OFCOM enforce code on ISPs  OFCOM can fine ISPs up to £250,000

Why do need to consider these issues?  You might be an ‘ISP’!  The threshold (400,000 subscribers) might well reduce  There might not be a threshold in other areas eg for blocking injunctions ….or you might be directly liable as a subscriber if you have allowed another person to use a service and they have infringed…

Impact on ISPs 1)receive and consider copyright infringement reports 2)issue notifications 3)keep data 4)issue lists 5)participate in subscriber appeals inc. appeals to court and beyond 6)execute technical measures 7)deal with “blocking injunctions” 8)pay costs

Final thoughts  Was the Act really needed?  Huge costs on everyone involved  Don’t we also need a debate on fair use of copyright /duration of copyright?

Thank you Robin Fry Beachcroft LLP