The Digital Economy Act: only the facts

The Digital Economy Bill is now an Act of Parliament, as of the 8th April 2010. For musicians and the music industry, the intention behind the legislation is to help copyright holders to combat online piracy.

There’s been lots of confusing and conflicting information in the media and online, so we thought we would give you a break down of the facts so you can make up your own mind.

Where it came from

The bill came from the 2006 Gowers Review of Intellectual Property and the Digital Britain White Paper of June 2009, which looked at many sectors including communications, e-commerce and broadcasting. Both reports involved consultation periods.

The Digital Economy Bill was introduced as a Government Bill in the House of Lords last November by Lord Young, on behalf of its sponsor, Lord Mandelson, Secretary of State for Business, Innovation and Skills. Ben Bradshaw minister for Culture, Media and Sport also sponsored the bill, and introduced it to the Commons with Stephen Timms, MP and Financial Secretary to the Treasury.

The process

The bill spent seven days in Committee and three days in the Report Stage at the House of Lords. The Third Reading in the Commons lasted approximately two hours.

Voting

The bill received 189 votes to 47 in the House of Commons.

Many MPs were absent and the Commons debates were kept to a minimum because of the impending general election.

What it covers

As well as amending and adding to existing legislation, including the Communications Act 2003 and the Copyright, Designs and Patents Act of 1988. The bill also covers other issues, including Internet domain names and game age classification.

Here is a quick breakdown of the various clauses, written before the bill was passed.

How it will be regulated and who by

The Act expands the role of Ofcom, the UK communications regulator.  Ofcom will monitor the UK Internet, and present quarterly reports on illegal file-sharing activity to the government.

The government wants industry and Ofcom to develop an ‘initial obligations’ code covering the procedures that ISPs and copyright owners must follow in cases of infringement.

From May to September, there will be public consultation on the content of the code.

Even in the face of unanimous opposition, Ofcom has to, under the Act, finalise the code by September, whether it approves a mutually established code or drafts one itself. This will then have to pass through the Houses of Parliament.

The code must then be approved by the European Commission, a process that will take a minimum of 3 months.

Process of enforcement
Step 1 — notification

It is under the initial obligations code that a copyright holder can request an infringement list from an ISP.

If a copyright holder finds that a subscriber has infringed, or allowed infringement of a specific copyright through the Internet, they can make a report within 1 month to the relevant ISP with evidence, referencing the IP address and time.

There are no exemptions to this, and it does not matter whether the subscriber is aware of the infringement or not.

The ISP will then be obliged to notify the subscriber by post or email.

A description and evidence of the apparent infringement will be provided in the notice. Information about copyright laws and legal music services will also be included.

January 1st 2011 is the earliest any notifications will be sent.

Process of enforcement
Step 2 — technical measures

If notifications do not reduce file-sharing by 70% over the 12 months of 2011, Ofcom can recommend to the secretary of state that ‘technical measures’ be pursued.

There will be another public consultation on what measures are appropriate.

The secretary of state will present the proposals and the results of the consultation to Parliament, who will then have 60 days to object: any committee in either house can block the measures.

If passed, ISPs may be ordered by the government to implement these measures against repeat offenders. Such measures could include temporary suspension or throttling of bandwidth.

Failure to act on the part of the ISPs could lead to a fine up to £250,000.

No subscribers will suffer technical measures under the Act until at least 2012.

Nowhere in the Act is disconnection mentioned.

Appeal process

Subscribers will have two tiers of appeal: to their ISP or to an independent body that must presume innocence.

Clause 18 previously allowed the High Court to block an infringing site by way of an injunction. This clause has been removed and rewritten, and in its new form will have to pass through both Houses when Parliament returns.

What it means for copyright owners

If these measures are passed in their current form, rights-holders could request an injunction from any court to block a site that “is being or is likely to be used for or in connection with an activity that infringes copyright”.

Copyright owners can already seek injunctions in the civil courts.

Image courtesy of: http://www.flickr.com/photos/35395389@N00/516690491/



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