UK: Government Endorses Hargreaves Recommendations And Pushes Ahead With DEA

The Digital Economy Act – DEA

The DEA was passed into law in April 2010 and sets out a number of measures to prevent online copyright infringement. The first of these are:

  • an obligation on Internet Service Providers (ISPs) to notify subscribers that their accounts have been associated with copyright infringement; and
  • an obligation on ISPs to compile and keep anonymised lists of those subscribers associated with copyright infringement; these may be provided to rights holders on request. Personal details will only be handed over on receipt of a court order.

Together these are known as the 'Initial Obligations'.

In addition to the Initial Obligations, the DEA also includes controversial further powers allowing the Secretary of State to require ISPs to impose 'technical measures' against subscribers identified as repeat infringers, which may include disconnection.

The DEA also reserved powers that enable the Secretary of State to draft new regulations to enable Courts to grant injunctions to block access to websites associated with copyright infringement ("Site Blocking Measures").

So What Has Changed?

The Government is pressing ahead with plans to implement the Initial Obligations, with Ofcom's Initial Obligations Code due to be published shortly. Once published it will be notified to the European Commission and then laid before Parliament for approval. The new system, enabling rights holders to require ISPs to send letters and keep lists of infringers, is intended to deter casual infringers while avoiding the costs of litigating. Controversially the DEA includes a framework for the later implementation of 'technical measures' which still remain on the table.

Last year the Government commissioned Ofcom to report on the practical workability of the Site Blocking Measures which has also been published recently. Ofcom concludes that the blocking of infringing sites could potentially play a role in tackling online copyright infringement, but that the approach set out in the DEA is unlikely to be effective because of the slow speed that would be expected from a full court process. This would provide site operators with the opportunity to change the location of the site long before any injunction could come into force.

Site Blocking Measures Shelved

The Government has announced that it will not bring forward regulations on the Site Blocking Measures under the DEA at this time. However, this is not as significant as it sounds for a number of reasons.

The Site Blocking Measures provisions still remain in the legislation as reserve powers which the Government could bring into force in future. Furthermore, there is a growing awareness that the Site Blocking Measures provisions in the DEA are neither groundbreaking nor necessary following the recent case of Twentieth Century Fox v British Telecommunications Plc, in which the High Court ruled that it was willing to grant an injunction requiring an ISP to block access to a third party website (in this case, 'Newzbin') providing the means for large-scale infringement of copyright. The claim was brought under s97A of the Copyright, Designs and Patents Act 1988, and the finding hinged on the Court concluding that the service provider had, or could be deemed to have, "actual knowledge" of another person using their service to infringe copyright, despite the ISP not being responsible for the infringing activities. This test case is now likely to be enforced against other significant ISPs. Although the judgment sends a clear message to websites facilitating copyright infringement, such as Newzbin, that such 'blocking' injunctions are available, Mr Justice Arnold made it clear that substantial evidence would be required to do so and that he did not expect that rights holders would undertake such future actions lightly. With such a remedy available, the case for additional Site Blocking Measures under the DEA is less pressing.

Although the judgment in Twentieth Century Fox v British Telecommunications Plc concluded that the ISP should block access to the website responsible for large scale copyright infringement, Ofcom's views on the futility of the Site Blocking Measures do somewhat undermine the practical utility of such injunctions. Although the decision has been made that an Order should be granted, the precise wording of the Order, the aim of which is require the ISP to block access to the infringing website, and all the inherent technical complexity that that entails, is yet to be agreed.

The Government's recent policy announcement is limited to Site Blocking Measures and does not impact on the Government's plans in respect of the Initial Obligations or the more controversial provisions (yet to be brought into force) relating to 'technical measures', whereby ISPs may be required to disconnect the accounts of subscribers whose accounts have been identified as being associated with copyright infringement.

Rights Holders to Shoulder More of the Costs, Appeals will not be Free

The Government has also revised its plans for allocating the costs of implementing the Initial Obligations. Following the recent Judicial Review of the DEA the Government has had to accept that it cannot require ISPs to contribute towards Ofcom's costs in overseeing the scheme or the costs of an independent appeals body, a development which will be welcomed by service providers.

In addition the Government has decided that it should introduce a £20 fee for allowing subscribers to appeal notifications or inclusion on infringer lists, such fee being refundable in the event that the subscriber is successful. The grounds for appeal, considered in Ofcom's draft Initial Obligations Code, are expected not to include a defence that the acts complained of were perpetrated by someone other than the account holder or without his approval or knowledge, (an "it wasn't me" defence), although such a defence, if accepted by the Court, would normally be sufficient to defeat a conventional claim for copyright infringement.

Spot On, Professor

Professor Ian Hargreaves' report of May 2011 entitled " Digital Opportunity – A Review of Intellectual Property and Growth" (the "Report") was recently commissioned by the Prime Minister to address the risk that the current intellectual property framework might not be sufficiently well designed to promote innovation and growth in the UK. Professor Hargreaves concluded that that current IP laws obstruct innovation and economic growth, and outlined a number of proposals to improve IP policy within the UK.

The Government published its response to the Hargreaves Report on 3 August 2011 (the "Response"), with a White Paper planned for Spring 2012, and for the most part it agrees with all of them.

One of the key outcomes of the Response is that the Government agrees that format-shifting of legally obtained copyright protected works for personal use should be allowed. This means that individuals will be able to copy music and videos they have legitimately paid for onto other devices for their own personal use. The announcement is sensible, and in accordance with most people's approach to their own legally obtained music collections. The Government takes the view that such a narrow private copying extension would not damage the underlying aims of copyright, would cause minimal harm to rights holders and would not require the introduction of a copyright levy system, something which the Government is opposed to.

Other proposed copyright exceptions include parodies and works created via inspiration from existing works, text mining and data analysis for non-commercial research, and allowing library archiving to include sound recordings and audio visual works. The Government also acknowledges the need for any changes to IP laws to be flexible enough to adapt to future changes in technology, so that new exceptions need not be sought as technology advances. The Government also plans to commission a review into how the UK's complex design laws can be simplified.

The Government also seeks to implement a Digital Copyright Exchange in order to enable a functioning digital market in rights clearance and to act as a source of information about rights ownership. The Government seems to recognise the challenges of developing a framework to bring together interested parties and developing viable financial models but seems undeterred nevertheless.

Going Global

The Government is keen to set its stall out as very much driving change and modernity in the field of Intellectual Property. It has also recently set out its international vision for UK's International Intellectual Property Strategy in a new report. Many of the Government's aims in it, such as establishing a European Patent Court and Unitary European Patent and seeking international reform of copyright laws are laudable but not new; nevertheless the Government is right in as much as if the status quo is ever to be successfully overhauled, it needs to be done at an international level.

Crime Fighting Superheroes

At the same time as publishing its plan for the DEA, its response to the Hargreaves Report, and its international strategy, it has also published a " UK IP Crime Strategy 2011" which sets out an action plan for Government to tackle counterfeiting and criminal policy. It includes strategies to tackle websites that are predominantly used for digital piracy and sets out plans to work with other states to develop international responses to these issues. Together with industry and law enforcement bodies, the Government is exploring measures which target the revenue streams of websites dedicated to infringing copyright, such as banning advertising on these sites and withdrawing payment facilities. The Government wishes to work with search engines to investigate how it could be ensured that unlawful sites do not appear higher up in search rankings than legitimate sources of digital content, without distorting legitimate online business or harming fair competition.

Next Steps

We await Ofcom's publication of the Initial Obligations Code with a view to the Initial Obligations coming into effect in 2012. The Government will consult on how it should proceed to implement Professor Hargreaves' recommendations and will set out its plans in a White Paper to be published in Spring 2012.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 10/08/2011.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.