IP, Technology & Data

As I blogged a couple of weeks ago, one of the major problems with the Digital Economy Act is that as it was rushed through parliament, it is drafted in very vague terms, with much of the (important) detail left to yet to be drafted regulations.

This impression of legislation being drafted on the back of a cigarette packet as the doors of Parliament are locked can also be found in Section 10. This Section allows for “technical obligations” to be placed on ISPs to take “technical measures” on the Internet connections of those deemed to have carried out multiple copyright infringements. “Technical measures” essentially means: 1. a limitation on the speed of the connection; 2. prevention of access to particular material; or 3. outright suspension of the connection.

This has been glibly referred to in the media over the last few months as a “3 strikes” test – implying that the third “technical measure” – disconnection – would occur only upon the third occasion of copyright infringement. Inevitably the reality is nowhere near as straightforward. (Things might be clearer if we had access to the “Code of Initial Obligations” – between rights holders and ISPs – that the Act refers to, but unsurprisingly it hasn’t been written yet.)

The process envisaged by the Act is that rights holders notify ISPs of copyright breaches, and ISPs pass on these notifications to subscribers. The ISPs can also be compelled to provide rights holders with a “copyright infringement list” which matches specific subscribers to specific copyright breaches (without actually identifying the subscribers). The rights holder then presumably picks out the biggest infringers and applies for court orders to compel the ISP to identify them. Once identified the subscriber can be sued for copyright infringement.

Simultaneously Ofcom is to prepare regular reports for the Secretary of State, describing the number of copyright infringement reports received by ISPs, the relative ease of obtaining the relevant copyright works legally, an assessment of the extent to which legal proceedings have already been brought against infringers, and so on. Based on these reports the Secretary of State can then order Ofcom to impose “technical obligations” on the ISP (and, therefore, “technical measures” on subscribers).

Why the concern? The subscriber will be the person who has a contract with the ISP for the Internet connection. But in many instances, the person carrying out the alleged infringement may not be the subscriber. Understandably, in light of these provisions, businesses that offer free (or paid-for) Wi-Fi (such as coffee shops, bars and libraries) have expressed serious concerns about being held liable for copyright infringement carried out by visitors to their premises, as they won’t be able to identify those users. The same issue applies for residential customers with insecure Wi-Fi networks. Internet subscribers in general are going to have to cease providing open access or implement complex and expensive security measures on their connections to make it more difficult for their neighbours and others to use their connection for copyright infringement.

ISP Talktalk has severely criticised the Act, and has pledged to its customers that if it is instructed to disconnect a subscriber from the internet due to alleged copyright infringement, then it will refuse to do so and will “see the rights holders in court”.

Once again, it appears that the Act has been drafted without considering how Internet access actually works – with the “pain” falling on ISPs. It remains to be seen whether it achieves its aims, or simply leads to more people being pursued for infringements that they did not commit.

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