Digital Economy Bill - Intellectual Property
Jenny Armitage LLB
03 June 2010
Executive Summary
The Digital Economy Bill provides a range of penalties for the infringement of online copyrighted works. These penalties range from a fine of £50,000 for criminally making copyright infringing works, to the disconnection of a subscriber’s internet connection. The Bill has received much criticism since its introduction, not least because it imposes restrictions on civil liberties and has the potential for innocent users to be prosecuted. It is up to OFCOM to decide how to implement the new laws under the Bill. The Code of Practice which will be used alongside the Bill has yet to be drawn up and will not be available until January 2011. It would seem to be a matter of caution until then.
Background
The Digital Economy Bill is now the Digital Economy Act 2010. The Act includes provisions relating to the UK’s communications infrastructure, public service broadcasting, copyright licensing and online infringement of copyright, and security and safety online and in video games.
The Act raises the penalty for criminally making copyright infringing works up to £50,000 and absolves libraries of copyright infringement if they lend out non-traditional books such as e-books and audio books.
The Act is working to tackle online infringement of copyright by placing obligations on Internet Service Providers (ISPs) to work with rights holders and, if necessary, to take technical measures against those who infringe copyright. It also allows for rights holders to seek a court injunction to prevent access to specified online locations to prevent online copyright infringement.
Digital Economy Bill – Intellectual Property
What is Intellectual Property?
Intellectual Property is an example of intangible personal property. It is a collection of ideas and information in a broadly commercial context that the law recognizes as having a value by providing protection.
So, Intellectual Property might be a brand, an invention, a design, a song or another intellectual creation. Intellectual Property can be owned, bought and sold.
What does the Act accomplish?
Early next year, the UK's largest ISPs will start collecting the details of subscribers who unlawfully download content and send them a total of 3 warning letters under a Code of Practice proposed by the media regulator OFCOM.
The Act imposes obligations on the ISPS to notify their subscribers if the internet protocol (IP) addresses associated with them are reported by copyright owners as being used to infringe copyright. It also imposes an obligation to 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 above the threshold. After obtaining a court order to obtain personal details, copyright owners will be able to take technical measures against those included in the list.
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.
All of this will be done under the, as yet unfinished, Code of Practice for OFCOM. Until that is published, it is uncertain how the provisions relating to Intellectual Property will work in practice.
Procedure
- Copyright owners identify cases of infringement and send details including IP addresses to ISPs;
- The ISPs verify that the evidence received meets the required standard, and link the infringement to subscriber accounts;
- The ISPs send letters to subscribers identified as apparently infringing copyright. They keep track of how often each subscriber is identified;
- If asked to do so by a relevant copyright owner, ISPs supply a copyright infringement list showing, for each relevant subscriber, which of the copyright owner’s reports relate to that subscriber. The list does not reveal any subscriber’s identity;
- Copyright owners use the list as the basis for a court order to obtain the names and addresses of some or all of those on the list. At no point are individuals’ names or addresses passed from the ISP to a copyright owner without a court order;
- Copyright owners send “final warning” letters direct to infringers asking them to stop online copyright infringement and giving them a clear warning of likely court action if the warning is ignored; and
- Copyright owners take court action against those who ignore the final warning.
Criticisms of the Act
- Those who share internet connections will be most at risk as there is the threat of broadband disconnection if their network is identified as having been used repeatedly to pirate copyrighted material. This could lead free wireless spots – such as cafes, libraries and universities – closing their networks down in case serial file sharers used their facilities to conduct their operations,
- The Act provides for injunctions to prevent access to specified online locations. This is against civil liberties and unacceptable in a democratic society,
- The draft Code of Practice exempts smaller ISPS which could lead to market distortion,
- The use of an anonymous list of subscribers, monitoring internet use and sending letters out to subscribers who are identified as being over the threshold could be seen as an invasion of privacy,
- There is little guidance for those who have been falsely accused,
- The Act was a rushed process and there are still many unanswered questions as to its impact and the lack of guidance.
Key Definitions
Rights Holders – the owners of the copyrighted works and therefore the people with the rights to such works.
Subscribers – Customers.
Resources
| Attachment | Size |
|---|---|
| Digital Economy Bill - Intellectual Property.pdf | 464.58 KB |
