The UK Parliament has now published the Digital Economy Bill, which makes a number of controversial amendments to the Copyright, Designs and Patents Act 1988 and includes key provisions relating to the regulation of online file-sharing and copyright protection and licensing generally.
The Bill creates a new process for dealing with online copyright infringement. Internet Service Providers (ISPs) will have to notify individuals who are the subject of a "copyright infringement report" that the rights holder has identified that individual (or "subscriber") as having breached their copyright in a work. Although initially it was planned that an infringing subscriber would be subject to a "three strikes" rule before potentially being disconnected from the internet, the Bill has left unresolved the issue of how many notifications would be due before punishment is applied, stating merely that ISPs will have to record the number of notifications a subscriber has been issued and provide the information to rights holders. This will then enable the rights holders (for example record companies or film producers) to apply for a court order to obtain the subscriber's details so civil action can be taken. Should the ISP fail to notify the rights holder, it may be liable for a fine of up to £250,000.
In addition, the Secretary of State will have the right to amend the 1988 Act by way of statutory instrument in order to further regulate online copyright infringement. This is a surprisingly broad power which gives the Secretary of State the power to change the law on copyright without requiring a full debate in parliament.
There are further provisions in the Bill regarding the switchover to digital radio and next-generation broadband, and the power granted to the government to control internet domain registration, but of potentially greater significance is the extension of the copyright licensing scheme for "licensing bodies". This new scheme is intended to afford greater regulation of collective licensing organisations such as PPL through providing the Secretary of State with, amongst other things, the power to enforce codes of conduct and require the payment of fees. The definition of "licensing body" contained in the 1988 Act, however, is sufficiently broad to include any organisation which negotiates or grants copyright licences. Potentially, the scope of the Bill could require many additional agencies and media organisations to adhere to any new schemes introduced; an unintended consequence which will need to be addressed.
MacRoberts provides comprehensive guidance on copyright and other intellectual property issues.
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The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
