The Digital Economy Act required Ofcom to develop an Online Copyright Infringement Initial Obligations Code which would manage the process of rights holders issuing copyright infringement notices to service providers. Ofcom has today published a draft of this code which is now open for consultation until 30th July.
The Act requires Internet Service Providers to both pass on the notices to their subscribers as well as keep count of how many infringement notices have been sent to each subscriber. This information can then be provided in a report to rights holders to allow them to target legal action.
Ofcom states that where it has discretion, the interests of 'citizens and consumers' will be central to its approach and that a system of quality assurance reporting will ensure that allegations of copyright infringement are based on upon 'credible evidence, gathered in a robust manner'. It will also establish an independent appeals body to hear any appeals and that this process should also consider the right to anonymity.
The code sets out a three-stage process for informing broadband users of infringements, including requiring easy-to-understand information on what the notice means and what they should do to check for example, that their wireless router isn't open for anyone in the neighbourhood to use their broadband connection.
Once a user has been sent a copyright infringement notice, this fact (without the user's identity) can be reported to the copyright owners who have made at least one report against them.
Initially, the code will only apply to fixed-line ISPs with more than 400,000 subscribers, which effectively covers 96% of broadband users in the UK. This will ensure that small and medium sized operators are not disproportionately affected by being required to implement systems to deal with copyright infringement reports. Mobile operators often use Network Address Translation (NAT) to deliver services so they are excluded as well for the time being. However, should there be an obvious trend of infringers moving to smaller providers or mobile broadband, Ofcom may review this.
Ofcom expects the code to be finalised by 8th January 2011 unless ministers extend the timetable. The code will require parliamentary approval and will also need to be notified to the European Commission. Government consultations should usually last at least 12 weeks, so it is slightly puzzling to see this code consultation only being two months, although we note that Ofcom has not signed up to the Code of Practice on Consultation.
More to follow...