MacRoberts Technology Media & Communications e-update 09/06/10

3 STRIKES AND WE'LL... DO SOMETHING. THE OFCOM CONSULTATION.

Ofcom is inviting comment on the consultation paper it issued last week proposing a "Code" for implementing the new Digital Economy Act 2010.

The Code is to apply initially to fixed ISPs who have more than 400,000 subscribers. This means that it will initially apply to BT, O2, Orange, Post Office, Sky, Talk Talk and Virgin Media, who together provide internet access to over 96% of the UK market. The Code does not yet apply to smaller ISPs, mobile operators or Wi-Fi providers such as coffee shops, but this position may be reviewed if necessary (i.e. if the imposition of the Code on larger ISPs causes infringing subscribers to flock to smaller ISPs instead).

In terms of the Code, copyright owners can report alleged incidences of copyright infringement to ISPs. This is done by way of a Copyright Infringement Report (CIR), which must contain certain information including:

• Details of the work in which it is claimed copyright subsists;
• A statement that there appears to have been an infringement of the owner's copyright; and
• A description of the apparent infringement.

The CIR must be sent to the relevant ISP within 10 working days of gathering evidence of the alleged infringement.

Before submitting their first CIR to an ISP, a copyright owner must submit a Quality Assurance Report to Ofcom. This must include details of the processes and systems used by the copyright owner to gather evidence of the alleged infringement and details of steps taken to ensure the integrity and accuracy of the evidence.

When an ISP receives a CIR, it must identify and notify the subscriber concerned. This stage is the first notification. If, after a period of one month from the date of the first notification the ISP receives a further CIR in respect of the same subscriber, this will trigger a second notification to the subscriber. If, after a period of one month from the date of the second notification, and within twelve months of the first notification, the ISP receives yet another CIR, the subscriber is added to a Copyright Infringement List to be maintained by the ISP.

A copyright owner can request relevant parts of the Copyright Infringement List from an ISP to help them raise actions against subscribers who are persistently in breach of their copyright.

The Code itself does not address whether ISPs should disconnect the service of persistent copyright infringers, nor how the costs of implementation of the Code are to be shared. These issues will be addressed in future consultations, so watch this space! 

For further information, please contact David Flint or Valerie Surgenor on 0141 303 1100.

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