Ofcom publishes three-strikes copyright code

June 26, 2012 // 10:44 a.m.

Tags: #bittorrent #copyright #dea #digital-economy-act #file-sharing #internet #isps #ofcom #peer-to-peer #rights-holders #three-strikes

Ofcom, the UK regulatory body for the communications industry, has published a draft code for consultation which would introduce a 'three-strikes' rule for alleged copyright infringement in the UK.

Announced today, Ofcom's draft guidance - required as part of the Digital Economy Act legislation passed in 2010 - is designed to strike a balance between the rights of the accused and protecting the interests of the copyright holders by allowing a certain leeway before the full weight of the law comes bearing down on alleged ne'er-do-wells.

Initially, the proposed code would apply to ISPs with more than 400,000 broadband-enabled fixed-line customers - currently only BT, Everything Everywhere, O2, TalkTalk and Virgin Media, who account for a claimed 93 per cent of the UK retail broadband market - and require those ISPs to send letters to customers, at least a month apart, alerting them to complaints of copyright infringement on their account.

Should a customer receive three letters or more within the space of a year, the code requires the ISP to provide 'anonymous information' on request to copyright owners showing them which infringement reports have been linked to that particular customer's account. Should the copyright holder then want to take the matter forward, a court order releasing the customer's identity would be required - to be followed by legal action under the Copyright, Designs and Patents Act 1988.

That's the same law used to drag alleged copyright scofflaws through the courts now, but Ofcom's proposed code would allow rights holders to focus their efforts on only persistent problem customers. That said, however, the code would not require rights holders to go through the ISP's three-strikes ruling: an application for a court order could be made at any time, although if a rights holder doesn't follow the code it could be turned down by a judge.

The broad terms of the code are largely unchanged from those from the original 2010 consultation, but some of the details have changed. In particular, evidence of alleged infringement must now be gathered according to procedures approved by Ofcom rather than by the rights holders themselves, while the rights of those seeking to appeal an instance of alleged infringement must now do so only on grounds specified in the Digital Economy Act. Previously, appeals based on any grounds at all were acceptable.

'These measures are designed to foster investment and innovation in the UK's creative industries, while ensuring internet users are treated fairly and given help to access lawful content,' claimed Claudio Pollack at the announcement of Ofcom's draft consultation. 'Ofcom will oversee a fair appeals process, and also ensure that rights holders' investigations under the code are rigorous and transparent.'

Ofcom has asked for a stay of execution on the other terms of the Digital Economy Act - which allows for alleged infringers to have their internet access bandwidth-limited or even cut off completely without the need to trouble a court - until the proposed code has been in place for at least a year, to judge its efficacy.

The code comes at a real cost for ISPs: according to Ofcom's calculations, each letter sent to a customer could cost an ISP up to £17. With Ofcom predicting that ISPs will be asked to send letters at a rate of 70,000 or more a month, that's a bill of over £14 million a year that the ISPs' customers will have to foot.

Following a consultation period, Ofcom will be laying the code in parliament by the end of the year. Following approval, the code will be put in place over 2013 with Ofcom working to establish an appeals body, with the first infringement warnings due to arrive on unlucky customers' doorsteps some time in early 2013. The full consultation document can be downloaded from Ofcom's website.
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