20-07-2010
The Digital Economy Act 2010: how it may affect you and how you can best prepare for its effects
Although some sections of the Act are not yet in force, and some sections require further consultation prior to their full implementation, below are details of the three main changes and their likely effects:
1) Online Copyright Infringement & Internet Service Providers (ISPs)
The Communications Regulator, OFCOM, has proposed a draft code for copyright infringement that initially applies to fixed line ISPs with over 400,000 subscribers.
This will not apply to smaller ISPs or any provision of mobile broadband.
The 3 Step 3 Strike Process
I) Report
Copyright owners will report online infringements by passing the IP (Internet Protocol) address and relevant details to the ISP.
II) Notice
On receipt of a Report, the ISP will send a Notice of the infringement(s) to the identified subscriber.
In any one month a subscriber can only receive one Notice.
III) Copyright Infringement List (CIL)
Any subscriber who receives 3 Notices in a 12 month period will be placed on the CIL, identifiable by IP address only.
The ISP must disclose the CIL upon request by a copyright owner who has filed a Report on that subscriber.
Repercussions
Legal Action
With the information on the CIL, a copyright owner can apply to Court for an Order to obtain the name and address of the infringing subscriber and commence the usual court action for damages, account of profits, injunctions and other statutory remedies
o Until now, it has been very difficult to identify the infringing party to commence such actions beware, this legislation could lead to a flood of claims!
Internet Access Cut or Reduced
The Government can regulate to force ISPs to limit internet speed, access or even service to subscribers on a CIL to prevent or reduce copyright infringement!
Who will get caught?
Businesses OFCOM has indicated that where a business is the subscriber, it is responsible for its users (be it employees or customers using its Wi-Fi services)!
o It is also worth noting that the level of criminal fines for making or dealing with infringing copyright articles has increased from £5,000 to £50,000!
Innocent Individuals Is your home Wi-Fi network open or poorly protected with out of date software? If so, you are open to suffer the consequences of those that abuse your network!
Not the illegal downloaders the music and film industries want to crack down on and which was the reason for the legislation. Anyone active in this sphere is already well aware how to hide their IP address by using any number of methods e.g. using a Virtual Private Network (VPN), using a Proxy Server, or morphing their IP address, to name but a few.
2) Site Blocking Injunctions (Not yet in force)
The courts can now grant blocking injunctions that require an ISP to block areas of the internet from its subscribers, where it is believed that a site is being or is likely to be used for infringing copyright.
o This injunction effectively ceases UK online footfall to the site and amounts to filtering web content!
o However, such injunctions should not be granted unless the site is having a serious adverse effect on consumers or business and is a proportionate response.
3) Web Regulation (Not yet in force)
The Government can now regulate the misuse of Domain Names and the unfair practices of registries, registrars and end users in respect of Domain Names.
o Misuse of a Domain Name is likely where the public is intentionally misled, or a web site spams a user.
o Unfair practices would include actions like pressure sales tactics and cybersquatting.
This will allow a site to be removed by court order, but only if it is located on the .uk registry.
In General
It is clear that the Government is willing to regulate the online world to enforce intellectual property rights in the UK. As you may recall, the legislation was passed in the Parliamentary wash-up procedure at the end of the last Parliament. This has led to a clumsy set of laws which could have a harsh impact on businesses and individuals inadvertently caught.
For guidance on how to minimise the likelihood of being caught by this new legislation, or if you wish to take advantage of the new injunctive relief laws once they become effective, please call or e-mail:
Rob Bryan
Tel: 01242 248228
Philip Radford
Tel: 01242 248247
Chris Stait
Tel: 01242 248224
1) Online Copyright Infringement & Internet Service Providers (ISPs)
The Communications Regulator, OFCOM, has proposed a draft code for copyright infringement that initially applies to fixed line ISPs with over 400,000 subscribers.
This will not apply to smaller ISPs or any provision of mobile broadband.
The 3 Step 3 Strike Process
I) Report
Copyright owners will report online infringements by passing the IP (Internet Protocol) address and relevant details to the ISP.
II) Notice
On receipt of a Report, the ISP will send a Notice of the infringement(s) to the identified subscriber.
In any one month a subscriber can only receive one Notice.
III) Copyright Infringement List (CIL)
Any subscriber who receives 3 Notices in a 12 month period will be placed on the CIL, identifiable by IP address only.
The ISP must disclose the CIL upon request by a copyright owner who has filed a Report on that subscriber.
Repercussions
Legal Action
With the information on the CIL, a copyright owner can apply to Court for an Order to obtain the name and address of the infringing subscriber and commence the usual court action for damages, account of profits, injunctions and other statutory remedies
o Until now, it has been very difficult to identify the infringing party to commence such actions beware, this legislation could lead to a flood of claims!
Internet Access Cut or Reduced
The Government can regulate to force ISPs to limit internet speed, access or even service to subscribers on a CIL to prevent or reduce copyright infringement!
Who will get caught?
Businesses OFCOM has indicated that where a business is the subscriber, it is responsible for its users (be it employees or customers using its Wi-Fi services)!
o It is also worth noting that the level of criminal fines for making or dealing with infringing copyright articles has increased from £5,000 to £50,000!
Innocent Individuals Is your home Wi-Fi network open or poorly protected with out of date software? If so, you are open to suffer the consequences of those that abuse your network!
Not the illegal downloaders the music and film industries want to crack down on and which was the reason for the legislation. Anyone active in this sphere is already well aware how to hide their IP address by using any number of methods e.g. using a Virtual Private Network (VPN), using a Proxy Server, or morphing their IP address, to name but a few.
2) Site Blocking Injunctions (Not yet in force)
The courts can now grant blocking injunctions that require an ISP to block areas of the internet from its subscribers, where it is believed that a site is being or is likely to be used for infringing copyright.
o This injunction effectively ceases UK online footfall to the site and amounts to filtering web content!
o However, such injunctions should not be granted unless the site is having a serious adverse effect on consumers or business and is a proportionate response.
3) Web Regulation (Not yet in force)
The Government can now regulate the misuse of Domain Names and the unfair practices of registries, registrars and end users in respect of Domain Names.
o Misuse of a Domain Name is likely where the public is intentionally misled, or a web site spams a user.
o Unfair practices would include actions like pressure sales tactics and cybersquatting.
This will allow a site to be removed by court order, but only if it is located on the .uk registry.
In General
It is clear that the Government is willing to regulate the online world to enforce intellectual property rights in the UK. As you may recall, the legislation was passed in the Parliamentary wash-up procedure at the end of the last Parliament. This has led to a clumsy set of laws which could have a harsh impact on businesses and individuals inadvertently caught.
For guidance on how to minimise the likelihood of being caught by this new legislation, or if you wish to take advantage of the new injunctive relief laws once they become effective, please call or e-mail:
Rob Bryan
Tel: 01242 248228
Philip Radford
Tel: 01242 248247
Chris Stait
Tel: 01242 248224
