Grumbleduke's Journal: A Guide to the Digital Economy Act - Part 1

A Guide to the Digital Economy Act - Part 1

This is the first in a series of posts explaining what the Digital Economy Act will do, how it works and how it will affect individuals. It is aimed at providing an objective and descriptive overview of the legislation, rather than opinion or comment on the content. The first part contains a general introduction and focuses on the Initial Obligations Code. Some parts may be legally technical.

The Digital Economy Act 2010 (c. 24) is a law of the United Kingdom. It consists of 48 sections and two schedules, received Royal Assent on 8th April 2010 and came into force on the 8th June. The Act contains new government powers over Internet domain names, material on Channel 4 and independent television networks, radio licensing (including provisions for a radio 'digital switch-over') and laws about the classification of video games. It ends with a section that should help libraries loan out audio- and e-books - although it does not go quite as far as it could. However, the most contentious parts of the Act are the sections on Online infringement of copyright (sections 3-18) - which contain the framework for disconnecting Internet users accused of infringing copyright by amending the Communications Act 2003. So, does this mean that we should start checking our email and post for threatening letters sent under this legislation? No - well, not yet.

The Act itself (from now on, referring to sections 3-18, and the new sections 124A-124N they add to the Communications Act - it is a little technical) does not contain any actual measures. The only solid duties it places are on Ofcom (the "Independent regulator and competition authority for the UK communications industries"), asking them to produce reports on everything to do with online copyright infringement on a yearly basis and produce an Initial Obligations Code and a Technical Obligations Code. These code contain the measures for "tackling" online copyright infringement, but even the initial code is unlikely to come into force before 2011.

The Initial Obligations Code

Sections 3-7 of Digital Economy Act form a framework for an Initial Obligations Code. This is a set of rules, drafted or approved by Ofcom (and to be put into law via a statutory instrument by Parliament), which gives instructions to ISPs and copyright owners on how they can or must deal with cases involving online copyright infringement. The Act contains some guidelines as to what must be included in the Code (in the new Section 124E of the Communications Act but it is up to Ofcom to come up with a final version. This is expected to be done by September, so it can be sent to the EU for approval (about three months) before coming into force early next year.

How it Works

The idea behind the Initial Obligations Code is quite straightforward, but how it works is a little complicated:

1. A Copyright owner (A) (such as a record label, film studio, or even the author of this blog post) finds evidence that suggests that a certain IP address is being used to infringe some of their copyright.
2. (A) finds out which ISP (B) is responsible for assigning that IP address and sends them a copyright infringement report (CIR) which contains their accusation (and a few other things listed in Section 124A (3) of the Communications Act).
3. (B) checks their records to see which of their subscribers (C - this could be you) was assigned that IP address at the time the infringement allegedly occurred and sends them a notification (via email or post) telling them about it (and including various things listed in Section 124A (6) of the Communications Act).
4. (C) can contest this, on various grounds (although not necessarily on the grounds that they did not do it) through a badly-defined appeals process but if they do not, or if their appeal is unsuccessful, the ISP (B) keeps a record of them and the number of CIRs they (B) has received about them (C).
5. After a certain threshold has been reached (this could be a certain number of CIRs about a particular subscriber, a certain number of notifications have been sent or any other threshold the code contains) the ISP (B) puts that subscriber (C) on a copyright infringement list (CIL) - a list of all the CIRs they have received (more specifics, although not many, in Section 124B (2) of the Communications Act).
6. At some point, the copyright owner (A) can demand that the ISP (B) hand over their CILs - however (and this is an important bit) the information must not enable (A) to identify (C). Essentially, all this list does is tell the copyright owner which of the CIRs they send are about the same subscriber (C) but without telling them who that subscriber is.

That is it. The result of this is that the copyright owner has a list of which subscribers they have accused of infringing their copyright repeatedly. Note: in order to take any action against them (e.g. sue them or send them their own threatening letters) the copyright owner still needs to take the ISP to court to obtain the subscriber's details and identity. These are the details that are in the Digital Economy Act itself. Any other information about this has likely come from the draft code published by Ofcom, rumours or misinformation.

How will this Affect You?

At this point, it should be emphasised that this Code is still being drafted and the earliest it will come into force is January 2011. At the moment Ofcom are consulting on the draft code and all those interested are encouraged to participate in the consultation. However, once in force, what will happen to the individual subscriber is not that different to what has been happening already, but on a larger scale and with a few more protections for them.

The first a subscriber will know about the process is when they receive their first notification from their ISP (under point 3 above). This will give details as to what is going on, why it has been received and the various processes that will follow. It should also contain details on the appeals process (if there is one) and any possible defences that can be used. The subscriber then may receive other warning letters but then it will be a case of waiting to see whether or not the copyright owner takes further action - most likely in the form of a threatening letter (of the type being sent by some law firms already) or possibly going straight to legal summons.

What to do now?

For now the best thing to do here is read up on the Ofcom Consultation on the Initial Obligations Code (more details, including the official Pirate Party response, should be appearing shortly) and try to submit a response. There is an easy online form for submitting a response although it does require reading through the document itself. Other than that, we must wait to see what for the Code takes and whether or not it will be approved by Parliament and the EU. There is no reason to be afraid for now, but that does not mean we should not be campaigning against these sections of the Act.

The next part to this guide will focus on the Technical Obligations Code and the measures it can introduce.

The author is a law student and Governor of the Pirate Party. Any comments, corrections or suggestions are welcome and can be emailed to duke 'at' pirateparty.org.uk.

This work is licensed under a Creative Commons Licence and should be attributed either to the author or a spokesman for the Pirate Party UK (in which case a link should be provided to the PPUK site).