Ofcom have released a terms of reference document today to cover its planned approach to deal with illegal file sharers which now comes under its remit following the adoption of the Digital Economy Act last week.
The initial obligations to ISPs will come under a code of practice that will require them to notify subscribers of any allegations made by copyright owners that the customer has been using their account to illegally share files. Service providers will also be required to maintain a list of notifications that have gone unchallenged by their customer which can be passed to relevant copyright owners, but will require a Court Order. Users will be able to challenge any notifications, and the information sent to users must contain enough information to allow users to be able to challenge the basis under which the notification was sent. A "robust" appeals process will be developed by Ofcom to allow customers to object if they deem the information sent to be inaccurate.
Ofcom will also provide quarterly reports to the Secretary of State detail estimates of levels of file sharing. If numbers don't fall, the Secretary of State can impose technical measure upon service providers, a step that has been heavily criticised by the industry.
Much like the law that was rushed through government that imposes this task upon Ofcom, they will also have to rush this through consultation with just 8 months before this code of practice must be adopted, 3 months (minimum) of which will be seeking approval from the European Commission.
Thankfully, Ofcom are willing to work with ISPs to get things drawn together and are currently considering allowing industry to draft the code of practice if sufficient stakeholder input can be taken. If not, it will draw up the draft itself, to which it will seek input from all relevant stakeholders. The draft code is expected to be published for consultation no later than May 2010, with a draft statutory instrument to be submitted to the European Commission in September 2010. This will put things in place for the new rules to begin at the start of 2011.