UK: Unprecedented New Enforcement Measures Introduced in the United Kingdom to Tackle Online Copyright Infringements and Unauthorised File-Sharing

Last Updated: 22 April 2010
Article by Ron Moscona

A new copyright enforcement scheme has been introduced in the UK earlier this month (April 2010). The scheme, part of the Digital Economy Act 2010, has passed through Parliament in an expedited legislation process ahead of general elections due in the UK in early May 2010. The new law - which amends the Communications Act 2003 - introduces a comprehensive enforcement scheme aimed primarily at discouraging unlawful file-sharing by members of the public.

The new enforcement measures focus primarily on internet account holders ("subscribers") whose accounts are being used for copyright infringement activities such as file-sharing and other forms of unauthorised online distribution of copyright materials, including offering such materials for downloading, viewing or copying. Subject to implementation through secondary legislation, the new legislation will also help the copyright industries in their fight against online infringements and will add pressure on web services that host user-generated content to improve the effectiveness of their infringement prevention systems.

The legislation provides for an array of remedies, ranging from the issuing of warning letters by internet service providers ("ISPs") to their subscribers, exposing repeated offenders to civil enforcement action by copyright owners, imposing of technical sanctions on repeated offenders in relation to their internet access, through to blocking orders to prevent access generally to websites engaged in copyright infringements.

Copyright infringement reports and notifications

The first measures the new legislation introduces is a procedure by which right holders would be able to submit reports to ISPs on apparent copyright infringement activities by internet users. A copyright owner would be able to conduct an online investigation to identify IP addresses used for file-sharing and other similar activities, where the right holder's copyright materials are being unlawfully shared or distributed. These lists of IP addresses suspected for being used for infringements would be given to the ISP. An ISP receiving an infringements report from a copyright owner would be required, in turn, within 1 month, to send infringement notices to the subscribers listed (by their IP addresses) in the report. The primary purpose of the notifications is to educate members of the public that file-sharing is unlawful and to warn the subscribers that if they do not prevent the use of their internet account for infringing purposes they might face legal proceedings and their internet access may be limited or blocked altogether. It is hoped that these notifications would discourage subscribers from engaging in file-sharing and encourage them to prevent those who are using their internet account - mainly their family members - from engaging in such activities.

Disclosure of subscribers' details to facilitate civil action

At the next level, where infringement notices do not have the desired effect, ISPs would be required to provide right holders with lists of cases of repeated infringements. The copyright owner would be able to require the ISP to provide it with sanitised lists of subscribers whose accounts continue to be used, repeatedly, for the unlawful file-sharing of the copyright owner's materials. The data will be provided to the copyright owner on an anonymous basis. However, the right holder would be able to seek a court order for the disclosure of the full details of the suspected infringers, paving the way for legal action.

The code

The implementation of the these so called 'initial obligations' is conditional on the adoption of an industry code and its approval by OFCOM - the UK telecommunications regulator. The code would set out in greater detail the criteria for issuing infringement notifications in specific cases and will set the specific thresholds of repeated offending that would trigger the requirement on ISPs to provide lists of repeated offenders to copyright owners. The code will also address various other issues such as how the costs of the scheme will be shared among ISPs and copyright owners and, in some cases, subscribers, requirements as to the provision of information by right holders and ISPs to establish whether the applicable criteria are met in particular cases, and provisions concerning rights of appeal. The code would have to be approved by OFCOM in a statutory instrument and will be subject to Parliamentary supervision.

As long as an industry code is not approved, OFCOM itself is required to adopt a code in relation to these enforcement measures, which would be subject to the same Parliamentary supervisory powers.

Technical sanctions against repeated offenders

Under the new law, secondary legislation may be introduced by Government (subject to Parliament approval) requiring ISPs to limit internet access to subscribers who exceed the prescribed threshold of copyright infringement notifications defined in the code. ISPs may be required to impose technical sanctions on such subscribers which may include: limiting internet connection speed (in order to prevent uploading), preventing or limiting subscriber' access to certain online materials, or even suspending subscribers' internet access.

The secondary legislation cannot be made before the 'initial obligations' code has been in force for at least 12 months and a formal OFCOM assessment of the need for such technical measures is submitted to the Government. Once such secondary legislation is made, OFCOM will be required to adopt an additional code to implement and regulate the legislation concerning technical sanctions. This code - which may be combined with the 'initial obligations' code - will also be subject to Parliamentary supervision.

Appeals

Subscribers will be able to appeal to an independent tribunal against the issuing of copyright infringement notices and the imposition of technical sanctions. In case of technical sanctions, the legislation requires two levels of appeal. The grounds of appeal are to be set out in detail in the code. However, the legislation provides that an appeal would have to be determined in favour of a subscriber unless the copyright owner or ISP can prove that the infringement alleged by the copyright owner was in fact an infringement of its copyright and that the infringement report correctly identified the subscriber's IP address. In addition, an appeal would have to be determined in favour of a subscriber if he or she can show that the alleged infringing activities were not done by the subscriber and that the subscriber took reasonable steps to prevent other persons infringing copyright by means of the subscriber's internet account.

The latter point addresses one of the criticisms raised against the new legislation - particularly the power to impose technical sanctions on subscribers - that widely available hacking methods can be used to allow access to another person's internet account to engage in file-sharing or similar activities and that the legislation might lead to enforcement action being taken against many innocent internet users who are not engaged in copyright infringement but whose accounts are used for such purposes by third parties. The new law provides a good defence to subscribers who can show that they put in place 'reasonable security measures' to prevent their account from being misused in such way. This could mean effectively that internet users would have to adopt technical security measures to protect their internet accounts, of risk the consequences. When such measures would be deemed 'reasonable' is yet to be seen.

Blocking orders

The new legislation further empowers the Government - if it is convinced that it is necessary to do so in order to prevent "serious adverse effect on businesses and consumers" - to make regulations authorising the courts to issue blocking injunctions in respect of 'locations' on the internet used for copyright infringement activities. Under a 'blocking injunction', the court would be able to order ISPs to block access to users to the internet website in question.

In granting a blocking injunction, the court would have to take into account, among other things, the evidence as to the steps taken by the ISP or by the relevant website operator to prevent the infringement, evidence of steps taken by the copyright owner or licensee to facilitate lawful access to the material, the importance of freedom of expression and the likelihood of disproportionate effect on any person's legitimate interests of the injunction.

The legislation does not specify who would be able to seek a blocking injunction from the court, and whether the remedy would be available to private parties or only to regulators. However, the legislation does indicate that the consent of the Lord Chancellor for any such proceedings would be required. Much of the rest of the detail would be flushed out in the regulations which would be subject to Parliamentary supervision.

Whereas in other respects the new legislation introduces enforcement measures against subscribers, this element, if implemented, will focus on internet websites which are used - whether by the website operator or by the users of the site - for infringing activities. If and when such regulations are made, they will provide further ammunition to the copyright industries in their fight against websites and internet services engaged in infringements or which enable infringements, in particular those hosting users-generated content, and will add to the pressure on such web services to improve the effectiveness of their infringement prevention systems.

Constance Jung provided valuable assistance in the preparation of this article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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