[x-pubpol] UK: Ofcom publishes draft DEA implementation code

[Joly MacFie]

http://www.zdnet.co.uk/news/intellectual-property/2012/06/26/file-sharing-appeals-get-tougher-under-piracy-crackdown-40155443/


[image: Ofcom]

*People accused of copyright infringement will have fewer grounds for
appeal under Ofcom's new draft code for implementing the Digital Economy
Act.**Image credit: Jon Yeomans*

On Tuesday, after many
delays<http://www.zdnet.co.uk/news/intellectual-property/2012/04/26/dea-anti-piracy-measures-delayed-until-2014-40155111/>,
the telecoms regulator published the draft code
(PDF)<http://stakeholders.ofcom.org.uk/binaries/consultations/online-notice/summary/notice.pdf>
for
implementing the Digital Economy Act (DEA), opening it up for consultation.
In its original
draft<http://www.zdnet.co.uk/news/regulation/2010/06/01/ofcom-gives-details-of-three-strikes-process-in-draft-code-40089095/>two
years ago, Ofcom said people should be able to appeal on any basis they
like. However, they will now be restricted to the grounds set out in the
legislation itself.

"On the instruction of government, we have removed the ability for
subscribers to appeal on any other ground on which they choose to rely,"
the regulator said.

Ofcom had initially called for all grounds to be considered because online
infringement is "slightly unknown territory", a spokesman for the regulator
explained.

"It is hard to predict what grounds might be reasonable in future, given
the advance of technology," he told ZDNet UK. "But the government has asked
us to restrict the appeals process." He said the order came through in July
2011.

The Digital Economy Act, passed into
law<http://www.zdnet.co.uk/news/regulation/2010/04/08/mps-pass-digital-economy-bill-with-few-changes-40088563/>
in
April 2010, introduced a tougher copyright scheme with provisions to block
websites hosting pirated content, as well as getting ISPs to write letters
to suspected file-sharers using their connections. However, Ofcom found the
site-blocking plans were unworkable, and it has complained that "drafting
the code itself has [been] a very complex task".

Under the terms of the
legislation<http://www.legislation.gov.uk/ukpga/2010/24/section/13/enacted>,
acceptable grounds for appeal include procedural problems. These include
the 'infringement' not actually being a copyright violation at all, or the
subscriber being incorrectly linked to the relevant IP address.

Other than that, accused internet subscribers will have to somehow prove
that they were not responsible for the piracy and that they have secured
their networks adequately. Otherwise, people will have to show that the
rights holder or ISP somehow breached Ofcom's code themselves.
Appeals body

Under Ofcom's new proposals, rights holders will need to get approval from
the regulator for the procedures they use to collect evidence against
suspected file-sharers. However, an appeals body — which is yet to be
established — will judge the quality of that evidence, when used to accuse
people of infringement.

 On the instruction of government, we have removed the ability for
subscribers to appeal on any other ground on which they choose to rely.
– Ofcom

This body — and not Ofcom — will decide how high-quality the evidence
provided in defence by subscribers will have to be.

"We consider that the appeals body should be able to impose an objective
standard of reasonableness and have therefore removed the requirement
proposed in our consultation that it should take into account the technical
ability and knowledge of the subscriber in making its determination," Ofcom
said.

Also, the code now says that people have 20 days to file an appeal after
getting a notification of infringement from their ISP; before, there was no
limit.
Appeals system a 'joke'

Open Rights Group chief Jim Killock said the appeals — each of which will
cost the accused consumer £20, refundable if successful — as a "a joke".

"The government has decided that 'I didn't do it' is not a defence,"
Killock said in a statement. "Some people will almost certainly end up in
court having done nothing wrong."

Killock highlighted the fact that commercial Wi-Fi hotspot operators are
exempt from having to run a notifications system, due to their relatively
small size. However, pubs, cafes and similar businesses running individual
hotspots may end up defending themselves against infringement accusations,
he noted.

In its new draft code, the regulator sidestepped this issue to some extent.
It said the appeals body will determine whether copyright infringement
carried out over such networks is the fault of the user or the hotspot
owner.

Copyright infringement reports

It will take a while to set up the appeals body and for ISPs to establish
their own systems for processing reports of copyright infringements from
rights holders, Ofcom noted. But by 1 March, 2014, Ofcom expects these
systems will be in place and rights holders will be able to start sending
ISPs copyright infringement reports (CIRs), noting which IP addresses and
port numbers are associated with unlawful file-sharing.

 The government has decided that 'I didn't do it' is not a defence. Some
people will almost certainly end up in court having done nothing wrong.
– Jim Killock, Open Rights Group

The ISPs will have to notify the relevant customer each time they get a CIR
associated with their account. Ofcom originally proposed doing this using a
mix of email and registered mail, but has now settled on requiring ISPs to
send each notification by first-class mail. It also now wants the letters
to explicitly say how many CIRs are associated with the subscriber's
account.

After three notifications within a year, the ISP must add the customer to
an anonymised list, which is then sent to the rights holder. If the
copyright owner wants to take action, they must apply for a court order to
force the ISPs to reveal the identities of the people on the list.

The code does not lay out what the next step is in the process after that.
It wants to run the letter-writing campaign for a year, first — if that
does not drastically cut unlawful file-sharing, the secretary of state will
have the power to introduce punishments such as account suspension.
Who will foot the bill?

Ofcom's new consultation will close on 26 July. The regulator also launched
a separate consultation<http://stakeholders.ofcom.org.uk/consultations/infringement-implementation/summary>
on
Tuesday, dealing with how the costs of implementing the DEA scheme will be
split. That consultation will close on 18 September.

The issue of costs is largely what held up the formulation of the new draft
code<http://www.zdnet.co.uk/news/regulation/2012/03/06/bt-and-talktalk-lose-digital-economy-act-appeal-40095202/>
in
the first place. According to Ofcom's new proposals, rights holders will
have to pay all of Ofcom's costs and all the ISPs' fixed costs for
processing reports of copyright infringement, and 75 percent of the ISPs'
variable costs.

The rights holders will cover these costs through a notification fee. This
is set at one level for the biggest ISPs (BT, Virgin, TalkTalk and Sky),
and at a lower level for the fixed-line broadband operations of O2 and
Everything Everywhere.

The cost to rights holders of pursuing copyright  infringement will not be
low: depending on the numbers of reports generated and the size of the ISP,
rights holders will have to cover costs of between £7.20 and £45.10 per CIR.


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