Graduated Response Mapped out in UK Digital Economy Bill

November 22nd, 2009 by Barry Sookman Leave a reply »

The UK government continues to speed ahead with modernizing its copyright legislation to bring the UK into the 21st century. The latest development is the introduction the UK Digital Economy Bill.

Earlier this month the government published © the way ahead: A Copyright Strategy for the Digital Age. The report focused on the need to keep copyright consistent with public expectations and explored the desirability of making access to and use of works easier for consumers. It also recommended making orphan works easier to access and suggested extended collective licensing as a means of facilitating making works available to the public.

The Digital Economy Bill implements several copyright initiatives proposed previously by the UK government. A thorough description of the proposed process is in the Explanatory Notes, which accompanied the Bill.

The Bill gives the Secretary of State power to confer extended powers on collecting societies to grant licences over works of non-members, and to make other provision for the granting of licences in respect of orphan works. The Bill also follows through on the Government’s commitment to stem online file sharing through a notice and notice system backed up by a fair and balanced graduated response system should notice and notice prove ineffective.

Anti- copyright advocates often misleadingly characterize graduated response systems as a “three strikes your out” process and attempt to discredit them by using fear mongering tactics telling the public that under these systems a family’s internet connection can be terminated for one year based solely on three unproven allegations of copyright infringement and that their personal information will be indiscriminately shared between ISPs to ensure this happens . See, Fear Mongering and Misinformation Used to Slag ACTA

The graduated response process being enacted by our trading partner such as France, New Zealand and the UK are nothing of the sort. The actual proposed provisions of the Digital Economy Bill show the extent to which the UK government has gone to ensure that if the process is implemented, it will be a completely fair process to all involved.

As explained in the Explanatory Notes, the Bill would amend the Communications Act 2003 (“the 2003 Act”) to impose obligations on 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; and keep track of the number of reports about each subscriber, and compile, on an anonymous basis, a list of some or all of those who are reported on. After obtaining a court order to obtain personal details, copyright owners will be able to take action against those included in the list.

In case these notice and notice obligations prove insufficient to reduce significantly the level of online infringement of copyright, the provisions also grant the Secretary of State a power to impose further obligations (“technical obligations”) on ISPs. These would be imposed on the basis of reports from OFCOM or any other relevant considerations, and would require ISPs to take measures to limit internet access to certain subscribers. The intention is that technical measures would be used against serious repeat infringers only. Technical measures would be likely to include bandwidth capping or shaping that would make it difficult for subscribers to continue illegal file-sharing, but other measures may also be considered. If appropriate, temporary suspension of broadband connections could be considered.

To safeguard the interests of consumers, the provisions also require two appeal processes to be set up. The appeal would be to a person independent of OFCOM, with a further right of appeal to an independent tribunal (called the First-tier Tribunal). Further, to obtain a remedy, the intention is that copyright owners would be held to the same standards of evidence of copyright infringement as in a copyright infringement action.

The provisions also set out how the costs of operating such a system may be shared. Funding from cost apportionment would enable an underpinning code to be developed by interested parties.

The Explanatory Notes illustrate how the provisions might work in practice, possible processes of notification and court action:

• 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 serious infringers list showing, for each subscriber who has been identified repeatedly by the copyright owner, which of the copyright owner’s reports relate to that subscriber. The list does not reveal any subscriber’s identity;

• Copyright owners use the serious infringers list as the basis for a large scale “Norwich Pharmacal” 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.

The “notice and notice” process sets out an obligation for ISPs to notify subscribers of copyright infringement reports (“CIRs”) received about them from copyright owners. To help ensure that the subscriber is made aware that their account appears to have been used to breach copyright, the Bill imposes an initial obligation on the ISP to notify the subscriber if the ISP receives a CIR from a copyright owner. The notification from the ISP must inform the subscriber that the account appears to have been used to infringe copyright, and it must provide evidence of the apparent infringement, direct the consumer towards legal sources of content, and provide other advice such as that information about the apparent infringement may be kept and disclosed to the copyright owner in certain circumstances and that further apparent infringements using the subscriber’s account may result in additional notifications.

ISPs will have to keep a record of the number of CIRs linked to each subscriber along with a record of which copyright owner sent the report. An ISP may be required to provide a copyright owner with relevant parts of those records on request (“copyright infringement lists”), but in an anonymised form so as to ensure compliance with data protection legislation. The intention is for the code to set out a threshold number of CIRs, for example 50, which means that a subscriber will be considered a serious repeat infringer whose alleged infringements must be covered by any copyright infringement lists that the ISP provides to the relevant copyright owner.

The lists would be made available to copyright owners on request in an anonymised form. For example, while a list might (for example) identify subscriber 936 as being linked to the most CIRs, it would not include any personal information about subscriber 936. In order to get this personal data, the copyright owner would need a court order. However, the list would allow the copyright owner to identify subscriber 936 as someone against whom legal action may be appropriate.

The Bill would also enable the Secretary of State to make provision by order to amend the UK Copyright, Designs, Patents Act, for the purpose of preventing or reducing on-line copyright infringement if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur. Illustrative examples of the possible ways in which this power could be used include: adapting the legal process  to allow rights holders to take more effective action more quickly against websites hosting or sharing material in breach of copyright; creating a fast track process; or imposing a duty on a body to report on the prevalence of new or emerging types of online infringement.

The UK Digital Economy Bill is certainly worthy of close consideration by the Canadian Government as a possible model for implementing a much needed graduated response process in Canada. The processes in the Bill also demonstrate just how misleading anti-copyright advocates are when they summarily dismiss graduated response systems as being capricious and heavy handed “three strikes and your out” processes.

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