Considerable, and often heated, debate continues over the provisions relating to copyright infringement in the Digital Economy Act 2010 (known amongst twitter users as #debill) rushed through the UK Parliament this week amid claims that this new law will undermine fundamental freedoms of users of Internet services. Now that the Act is in final form, we take a look at the relevant (extremely complex) provisions to see what they actually do. Is this actually the end of freedom as we know it, will the Act help copyright owners effectively protect what belongs to them, or is it just an administrative and legal nightmare for all concerned of the kind previously seen with other legislation rushed through Parliament with insufficient scrutiny such as the Dangerous Dogs Act?
Perhaps the first key point to make is that not all the law is here; the Act contemplates further regulations to come, although it does set out detailed outlines as to what those regulations are likely to say.
Obligation to notify subscribers of copyright infringement reports: if it appears to a copyright owner that a subscriber to an Internet access service has infringed his copyright by means of the service or has allowed someone else to infringe the copyright by means of the service then the owner may make a “copyright infringement report” to the ISP. The report must set out the details of the “apparent infringement” and the subscriber’s IP address, and this must be sent to the ISP within one month of the copyright owner obtaining the relevant evidence. It is likely that the ISP will then have to then send a notification containing the details of the report to the subscriber concerned, and advising the subscriber of his right of appeal. Rather quaintly, the notification must also give advice to the subscriber on how he can protect his Internet access from unauthorised use.
The detailed rules in this area will be contained in an “initial obligations code”, which is likely to state that the notification to the subscriber must contain a warning that the copyright owner may require the ISP to disclose which copyright infringement reports made by the owner to the ISP relate to that subscriber (see the paragraph immediately below), and further that the copyright owner may apply to the court to learn the subscriber’s identity and may bring proceedings against the subscriber for copyright infringement. The notification to the subscriber can be sent either electronically or to the postal address held by the ISP for the subscriber.
Obligation to provide copyright infringement lists to copyright owners: if the number of copyright infringement reports made by a copyright owner to the ISP in relation to the subscriber have reached a threshold set in the initial obligations code (it is presently unclear what that threshold will be) it is likely that there will be a requirement on ISPs to provide on request to the owner a “copyright infringement list” which sets out which of the copyright infringement reports made by the owner to the ISP relate to a particular subscriber (although this will not enable the subscriber to be identified). Copyright infringement reports received by an ISP more than 12 months before a particular date will not count towards the threshold. A subscriber who has breached the threshold becomes a “relevant subscriber” and a number of further provisions then apply to him.
Obligations to limit Internet access: the Secretary of State will be able to seek regulations imposing technical measures against some or all “relevant subscribers” to prevent or reduce copyright infringement by means of the Internet. A “technical measure” is one that limits the speed or other capacity of the service, prevents the subscriber from using the service to gain access to particular material, or limits such use, suspends the service to the subscriber, or limits the service in another way. There is no indication in the Act how long these technical measures may last. However, no such regulations can be made within the first 12 months after the initial obligations code is in force, and the Secretary of State must first have Ofcom carry out an assessment of the need for such regulations. In addition, any such regulations must be approved by both Houses of Parliament and only after the draft order has been before Parliament for at least 60 days.
Code by Ofcom about obligations to limit Internet access: if such limits on Internet access are to be put in place, Ofcom must also put in place a “technical obligations code”. The technical obligations code must be objectively justifiable and proportionate to what it is intended to achieve.
Appeals: both initial obligations code and the technical obligations code must contain rights of appeal, and the technical obligations code must contain a further right of appeal to a tribunal. The initial right of appeal is to a person who “is for practical purposes independent of ISPs, copyright owners and Ofcom”, and a further right of appeal will in practice be governed by the provisions of the Tribunals, Courts and Enforcement Act 2007.
The grounds of appeal by a subscriber include that the apparent infringement was not in fact an infringement of copyright, that the copyright infringement report does not relate to the subscriber’s IP address at the time of the apparent infringement, and the contravention of the relevant code by the copyright owner or the ISP. An appeal must be determined in favour of the subscriber unless the copyright owner or the ISP shows that the apparent infringement was indeed an infringement of copyright and the report does indeed relate to the subscriber’s IP address at the time of that infringement. In addition, if the subscriber appeals on the basis that there was no infringement of copyright or that the report does not relate to his IP address, the appeal must be determined in his favour if he shows that the act constituting the apparent infringement was not done by him and he took reasonable steps to prevent other persons infringing copyright by means of the Internet access service.
Power to make provision about injunctions preventing access to locations on the Internet: the Secretary of State may make regulations about the granting by a court of a blocking injunction in respect of a location on the Internet which will require an ISP to prevent its service being used to gain access to that location. The Secretary of State must be satisfied that the use of the Internet for activities that infringe copyright is having a serious adverse effect on businesses or consumers, making the regulations is a proportionate way to address that effect, and making the regulations would not prejudice national security or the prevention or detection of crime. Any such regulations must state that the court may not grant an injunction unless it is satisfied that the location is one from which a substantial amount of material has been, is being or is likely to be obtained in infringement of copyright, is one at which a substantial amount of material has been, is being or is likely to be made available in infringement of copyright, or is one which has been, is being or is likely to be used to facilitate access to such a location.
The court also will have to take account of evidence from the operator of the location and/or the ISP of its attempts to prevent infringement of copyright, steps taken by the copyright owner or by its licensee to facilitate lawful access to the relevant material, any representations made by the government, whether the injunction is likely to have a disproportionate effect on any person’s legitimate interests, and the importance of freedom of expression. If an injunction is sought, then advance notice of the application must be given to the ISP and the operator of the location.
Any regulations relating to these blocking injunctions will have to go through the process before both Houses of Parliament described above in relation to the imposition of a technical obligation on ISPs.
Costs and penalties: costs incurred by Ofcom in administering and enforcing the codes are to be met by ISPs and copyright owners. Quite how this will work will be set out in the codes. Breaches of the relevant code by ISPs and/or copyright owners can be subject to a penalty not exceeding £250,000, and a copyright owner may be required to indemnify an ISP for loss or damage resulting from the owner’s failure to comply with the code or the copyright infringement provisions of the Act.
As in the case of the initial obligations code, there will be provision for the imposition of penalties on ISPs and copyright owners and a provision requiring an owner to indemnify and ISP in certain circumstances. Each code will also contain provisions relating to the payment of costs and contributions by copyright owners, ISPs and, in relation to appeals, by subscribers.
Conclusions (so far): it has been argued that powers contained in the Act to restrict and indeed withdraw access to Internet services may be in breach of Article 10 of the European Convention on Human Rights which enshrines the right to freedom of expression and is incorporated, along with the rest of the Convention, into UK law by way of the Human Rights Act 1998. However it is to be remembered that the First Protocol to the Convention relates to the protection of property, and copyright is an intellectual property right that is recognised at UK, European and international law. Whilst legislation that unreasonably infringes freedom of expression is likely to fall foul of the Convention, so too may a legislative position under which property rights are not adequately protected in the light of new technological threats to its value.
The definition of “technical measures” is very wide and there is nothing in the Act that would prevent such measures being imposed on a permanent basis. It would seem that once the initial rights of appeal have been exhausted there is no mechanism to have technical measures reviewed at some future date, and it is to be hoped that the regulations to be made under the Act will address this issue adequately.
One of the principal grounds of appeal by the subscriber is that an apparent infringement was not, in fact, an infringement of copyright at all. Such an appeal is to be heard by an independent person (rather than a full tribunal as in the case of a second appeal under the technical obligations code). Copyright is a notoriously complex area of the law, and the determination of such matters by a single “independent person” rather than a tribunal or court is in principle unwelcome.
There is a clear burden on the copyright owner under this new legislation to prove that an apparent infringement was indeed an actual infringement of copyright and also that the copyright infringement report does indeed relate to the subscriber’s IP address at the time of the infringement. This burden on the copyright owner is to be welcomed, but it should be noted that nonetheless the owner will only have to prove these facts on a balance of probabilities and not to the higher criminal standard of beyond a reasonable doubt. There must be an argument that, given the potentially draconian consequences against the subscriber (and possibly his livelihood) the higher standard would have been more appropriate.
Concern has also been voiced about the potential for these new provisions to be used against private individuals in domestic circumstances; for example parents of a teenager who has been downloading music in breach of copyright. The validity of this concern in practice will depend on the detail of the forthcoming regulations and, in particular, the setting of the threshold in respect of the number of copyright infringement reports referred to above. In addition, the regulations will need to utilise the powers to impose penalties under the Act on copyright owners and ISPs in order to deter the misuse of the copyright infringement report mechanism (which requires the copyright owner only to make an allegation of copyright infringement rather than to prove it).
Care will need to be taken by copyright owners that both they and the ISP concerned adhere strictly to the provisions of the relevant codes. Breach of the codes by the copyright owners or the ISP will be a ground of appeal by the subscriber, and can entail nasty financial consequences for the copyright owner.
It would seem that the provisions relating to blocking injunctions are designed to combat activities such as those of Pirate Bay and would permit the UK courts to ban access from the UK to such sites. As a consequence the UK is likely to become one of the few countries in the Western world where such powers can be imposed against ISPs and, ultimately, its citizens. Before such provisions can be put in place the UK government must be satisfied that relevant activities are having “a serious adverse effect on businesses or consumers”, but quite what that means remains to be seen. In addition, provisions relating to blocking injunctions and to the imposition of technical measures against ISPs must first go through the special procedure before Parliament described above, but given the shambolic way in which the Act was passed into law this is unlikely to be seen as any real protection at all.
The Act is now with us and will come into full force later this year. The task now is to scrutinise any regulations that emerge under the Act to ensure they are fit for purpose.
© Taveners April 2010