Digital Economy Act 2010

The UK Digital Economy Act 2010 contains new government powers over Internet domain names, material on Channel 4 and independent television networks, radio licensing (including provisions for a radio 'digital switch-over') and laws about the classification of video games.

The Digital Economy Act 2010 ends with a section that should help libraries loan out audio and e-books. But the Act has raised some contentious issues, particularly about punishing persistent offenders for illegal file-sharing...

The Digital Economy Act 2010 does not contain any actual measures. The only solid duties it places are on Ofcom (the "Independent regulator and competition authority for the UK communications industries"), asking them to produce reports on everything to do with online copyright infringement on a yearly basis and produce an Initial Obligations Code and a Technical Obligations Code. These code contain the measures for "tackling" online copyright infringement, but even the initial code is unlikely to come into force before 2011.

This is the most contentious parts of the Act - the sections on online infringement of copyright (sections 3-18) - which contain the framework for disconnecting Internet users accused of infringing copyright by amending the Communications Act 2003.

The idea behind the Initial Obligations Code is quite straightforward, but how it works is complicated:

  1. A Copyright owner (A) (such as a record label, film studio, or even the author of this blog post) finds evidence that suggests that a certain IP address is being used to infringe some of their copyright.
  2. (A) finds out which ISP (B) is responsible for assigning that IP address and sends them a copyright infringement report (CIR) which contains their accusation (and a few other things listed in Section 124A (3) of the Communications Act).
  3. (B) checks their records to see which of their subscribers (C - this could be you) was assigned that IP address at the time the infringement allegedly occurred and sends them a notification (via email or post) telling them about it (and including various things listed in Section 124A (6) of the Communications Act).
  4. (C) can contest this, on various grounds (although not necessarily on the grounds that they did not do it) through a badly-defined appeals process but if they do not, or if their appeal is unsuccessful, the ISP (B) keeps a record of them and the number of CIRs they (B) has received about them (C).
  5. After a certain threshold has been reached (this could be a certain number of CIRs about a particular subscriber, a certain number of notifications have been sent or any other threshold the code contains) the ISP (B) puts that subscriber (C) on a copyright infringement list (CIL) - a list of all the CIRs they have received (more specifics, although not many, in Section 124B (2) of the Communications Act).
  6. At some point, the copyright owner (A) can demand that the ISP (B) hand over their CILs - however (and this is an important bit) the information must not enable (A) to identify (C). Essentially, all this list does is tell the copyright owner which of the CIRs they send are about the same subscriber (C) but without telling them who that subscriber is.

Judicial review


The Digital Economy Act 2010 has come under judicial review and the case came before the High Court on March 22nd 2011, lasting for 3 days. Broadband service providers BT and Talk Talk challenged the Act, specifically on the provisions tackling illegal file-sharing and protecting intellectual property rights online.

They argue that the legislation is seriously flawed, conflicts with European law, and was not given sufficient scrutiny in Parliament during the dying days of the Labour Government. They warn that it could infringe the basic rights and freedoms of Internet users. The original Bill was made law after just 2 hours debate.

The new Coalition Government has no plans to repeal the Act.

A spokesman from the Department for Business Innovation & Skills (BIS) has said:

"The Government believes the Digital Economy Act is consistent with EU legislation and contains sufficient safeguards to protect the rights of consumers and Internet Service Providers."

The Act "sets out to protect our creative economy from the threat of online copyright infringement, which industry estimates costs them GBP400m a year".

The submission deadline for written evidence has been extended, and no public evidence sessions will be held until the Judicial Review is concluded.

Rejection of Judicial Challenge

The objections set out under the Judicial Review were rejected in April 2011. However, the government has indicated that it may not be until 2012 that the copyright infringement provisions become law.


Arrangement of Sections


Introductory Text

Ofcom reports

  • 1. Ofcom reports on infrastructure, internet domain names etc
  • 2. Ofcom reports on media content

Online infringement of copyright

  • 3. Obligation to notify subscribers of reported infringements
  • 4. Obligation to provide infringement lists to copyright owners
  • 5. Approval of code about the initial obligations
  • 6. Initial obligations code by Ofcom in the absence of an approved code
  • 7. Contents of initial obligations code
  • 8. Progress reports
  • 9. Obligations to limit internet access: assessment and preparation
  • 10. Obligations to limit internet access
  • 11. Code by Ofcom about obligations to limit internet access
  • 12. Contents of code about obligations to limit internet access
  • 13. Subscriber appeals
  • 14. Enforcement of obligations
  • 15. Sharing of costs
  • 16. Interpretation and consequential provision
  • 17. Power to make provision about injunctions preventing access to locations on the internet
  • 18. Consultation and Parliamentary scrutiny

Powers in relation to internet domain registries

  • 19. Powers in relation to internet domain registries
  • 20. Appointment of manager of internet domain registry
  • 21. Application to court to alter constitution of internet domain registry

Channel Four Television Corporation

  • 22.Functions of C4C in relation to media content
  • 23.Monitoring and enforcing C4C's media content duties

Independent television services

  • 24. Determination of Channel 3 licence areas
  • 25. Initial expiry date for Channel 3 and 5 and public teletext licences
  • 26. Initial expiry date: consequential provision
  • 27. Report by Ofcom on public teletext service
  • 28. Power to remove Ofcom's duty to secure provision of public teletext service
  • 29. Broadcasting of programmes in Gaelic

Independent radio services

  • 30. Digital switchover
  • 31. Renewal of national radio licences
  • 32. Renewal and variation of local radio licences
  • 33. Variation of licence period following renewal
  • 34. Content and character of local sound broadcasting services
  • 35. Radio multiplex services: frequency and licensed area
  • 36. Renewal of radio multiplex licences

Regulation of television and radio services

  • 37. Application of regulatory regimes to broadcasters

Access to electromagnetic spectrum

  • 38. Payment for licences
  • 39. Enforcement of licence terms etc

Video recordings

  • 40. Classification of video games etc
  • 41. Designated authority for video games etc

Copyright and performers' property rights: penalties

  • 42. Increase of penalties relating to infringing articles or illicit recordings

Public lending right

  • 43. Public lending right

General

  • 44. Power to make consequential provision etc
  • 45. Repeals
  • 46. Extent
  • 47. Commencement
  • 48. Short title

SCHEDULE 1 - Classification of Video Games etc - supplementary provision

SCHEDULE 2 - Repeals


Supervision and enforcement


  • Department for Culture Media & Sport (DCMS)
  • Ofcom

Reference


Digital Economy Act 2010

UK/2010/C/24