The new Digital Economy Act includes provisions about online copyright infringement (including 'file-sharing' and 'peer-to-peer' transfer). Under the Act, over the next few months OFCOM is to supervise (or produce) a supporting code under which internet service providers (ISPs) will have certain 'initial obligations' to:

  • notify a subscriber (i.e. an internet user) if an internet protocol (IP) address associated with that subscriber (i.e. a person's 'address' on the Internet) is reported by a copyright owner as being used to infringe copyright;
  • keep track of the number of reports about each subscriber; and
  • on request by a copyright owner, compile – on an anonymous basis – a list of those subscribers who are reported to be copying - if a subscriber passes a certain threshold level to be set in that initial obligations code.

A copyright owner can then, after obtaining a court order to obtain personal details of who a subscriber is in the real world, take action against anyone included in that list.

What is described above is the initial obligations on ISPs. However, if the initial obligations on ISPs prove insufficient to reduce significantly the level of online copyright infringement, under the Act, the government is allowed to impose further technical obligations on ISPs. These would be imposed on the basis of reports from OFCOM no sooner than 12 months after the code about ISPs' initial obligations enters into force. These technical obligations would require ISPs to take measures to limit internet access to certain subscribers – but these technical measures can only be used against subscribers who meet the threshold for inclusion in a copyright infringement list under the initial obligations. (Technical measures would be likely to include bandwidth 'capping' or 'shaping' that would make it difficult for subscribers to continue file-sharing, but other measures may also be considered. If appropriate, temporary suspension of broadband connections could be considered too.)

To safeguard the interests of consumers, the provisions also require appeal processes to be set up as part of the underpinning codes. These include the right to appeal decisions of ISPs to impose technical measures. Appeals are required to be to a person independent of OFCOM, with a further right of appeal to what is known as a "First-tier Tribunal" in the case of technical obligations. No technical measure can be imposed if an appeal is in the process of being considered.

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