File Sharing Provisions Guide to Ofcoms Initial Obligations Code

8/2/2019 File Sharing Provisions Guide to Ofcoms Initial Obligations Code

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Digital Economy Act Filesharing provisionsGuide to Ofcoms initial obligations code under the Digital

Economy Act 2010


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2Filesharing provisions: Guide to Ocom's initial obligations code

About Consumer Focus

Consumer Focus is the statutory consumer

champion or England, Wales, Scotland and

(or postal consumers) Northern Ireland. We

operate across the whole o the economy,

persuading businesses, public services and

policy makers to put consumers at the heart

o what they do.

Consumer Focus want to see a digital

economy characterised by competitive,

dynamic and innovative markets to which

consumers have meaningul access and

in which they are empowered to make

inormed choices.

We want to see a copyright culture that

supports this by striking a air balance

between creators, investors and consumers.

With the arrival o digital technologies

consumers have become able to inringe

copyright on a large scale. Copyright

inringement is not to be condoned, but law

enorcement always has to be proportionate

and carried out in a way that respects

data protection law and the human right to

due process, which is the presumption o

innocence and a air trial.

This guide

This guide outlines the requirements or the initial obligations code that Ocom is to

approve. It will underpin the notifcation o internet subscribers in cases where a copyright

owner is alleging that their internet account has been used to inringe copyright. These

provisions have been established by the Digital Economy Act 2010, which makes a number

o requirements as to the content o the initial obligations code.o

Cover image: Extract rom the Digital Economy Act


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3Consumer Focus

The Digital Economy Bill received Royal Assent

8 April 2010 and became the Digital Economy

Act 2010.1 Most o the provisions in the act came

into orce two months ater Royal Assent, in June

2010.2

The Digital Economy Act (DE Act) established

legislation on a range o digital communications

issues, including internet domain registries,

Channel 4s media content duties and the

classifcation o video games. Section 3 to 18 o

the DE Act cover online inringement o copyright

and contain the ollowing two provisions:

The flesharing provisions Section 3 to 16 o

the DE Act. These sections are to be amendedinto the Communications Act 2003 (COM Act),

creating new sections 124A to 124N.3

The website-blocking provisions Section 17 to

18 o the DE Act.

This guide only covers the initial obligations code

which will underpin the notifcation stage o the

flesharing provisions.

Two stage flesharing approach The flesharing

provisions establish a two stage approach which

includes a notifcation stage and a technical

measures stage. The notifcation stage will be

supervised by Ocom and underpinned by an

initial obligations code, which is to be approved,

administered and enorced by Ocom. I the

notifcation stage does not lead to a reduction

in online copyright inringement, the Secretary

o State has the power to impose a technical

obligation on internet service providers to take

technical measures against relevant subscribers.This is when the technical measures stage starts.

Guide to Ocoms initial obligations code under the DigitalEconomy Act 2010

Digital Economy Act Filesharing provisions

1 Digital Economy Act 2010, pg.12 Some Sections relating to online inringement o copyright that came into orce with Royal Assent, these are Sections 5, 6,

7, 15 and 16(1). Digital Economy Act 2010, section 2183 Updating the Communications Act 2003 The flesharing provisions o the DE Act, section 3 to 16, will be added to the

Communications Act 2003, which already contains in excess o 400 Sections. The flesharing provisions will be inserted

ater section 124, hence the sections will be numbered 124 plus a letter o the alphabet, ie 124A, 124B.


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DE Act / COM Act section no and title Stages

DE Act Section 3 / COM Act Section 124A Obligation to

notiy subscribers o copyright inringement reports

Notifcation stage

DE Act Section 4 / COM Act Section 124B Obligation to

provide copyright inringement lists to copyright owners

DE Act Section 5 / COM Act Section 124C Approval o

code about the initial obligations

DE Act Section 6 / COM Act Section 124D Initial obligations

code by OFCOM in the absence o an approved code

DE Act Section 7 / COM Act Section 124E Contents o

initial obligations code

DE Act Section 8 / COM Act Section 124F Progress reports

DE Act Section 9 / COM Act Section 124G Obligations to

limit internet access: assessment and preparationTechnical measures stagepreparation

DE Act Section 10 / COM Act Section 124H Obligations to

limit internet access

Technical measures stageDE Act Section 11 / COM Act Section 124I Code byOFCOM about obligations to limit internet access

DE Act Section 12 / COM Act Section 124J Contents o

code about obligations to limit internet access

DE Act Section 13 / COM Act Section 124K Subscriber

appeals Subscriber appeals

DE Act Section 14 / COM Act Section 124L Enorcement o

obligationsOcom enorcementarrangement

DE Act Section 15 / COM Act Section 124M Sharing ocosts Cost

DE Act Section 16 / COM Act Section 124N InterpretationDefnitions


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5Consumer Focus

Subscriber

appeal

The notifcation process:

The DE Act makes detailed provisions or thenotifcation process. Essentially copyright owners

will send copyright inringement reports to

internet service providers outlining an alleged

inringement o copyright, and providing an IP

address associated with the alleged inringement.

The internet service providers will then match the

IP address to internet access service subscriber

details and send notifcations o the copyright

inringement report made by the copyright

owners. I the number o copyright inringement

reports received rom copyright owners reach a

certain threshold, specifed in the initial obligations

code, internet service providers have to establish

copyright inringement lists in relation to the IP

addresses. The subscribers who are associated

with these IP addresses then become relevant

subscribers or the purpose o the notifcation

stage and the technical measures stage.

During the notifcation stage copyright owners

will have access to copyright inringement lists,though they will only see how many copyright

inringement reports have been sent in relation to

a subscriber identifed by the relevant IP address,

not the subscriber details. It is then expected that

copyright owners obtain the subscriber details

through a so called Norwich Pharmacal Order; a

court order that orces internet service providers

to release the subscriber details associated with

an IP address to the copyright owner who applied

or that order. The copyright owners are then

expected to take these subscribers to court or

civil copyright inringement, using the evidence

they have previously submitted through the

copyright inringement reports.

During the notifcation process the initial

obligations code will give subscribers the right to

appeal the copyright inringement reports through

an appeals body to be set up by Ocom.

Copyright

inringementreport

Copyright

owner

Internet service

provider

NotifcationSubscriber

The notifcationprocess*

* The copyright owner sends a 'copyright inringement report' to the internet service provider, who sends a notifcation to

the subscriber. The subscriber then has the right to appeal against the 'copyright inringement report'.


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Initial obligations code: what it must

includeThe DE Act makes a number o specifc provisions

about what needs to be included in the initial

obligations code that underpins the notifcation

stage. The initial obligations code can only be

approved by Ocom i it ulfls all the criteria and

makes all the provisions established in the DE

Act. Ocom needs the consent o the Secretary

o State to approve the initial obligations code,

and must lay the initial obligations code beore

Parliament.

Most o the criteria or approval and required

provisions are specifed in Section 7 Contents

o initial obligations code o the DE Act (Section

124E o the COM Act). Other sections o the DE

Act which outline relevant provisions or the initial

obligations code include Section 4, 13 and 15.

A quick reerence list on what the initial obligations

code must include can be ound at the back o

this Guide.

Contents o initial obligationscode

Criteria or approval:

Section 7 o the DE Act establishes a set o

criteria and Ocom must not approve the initial

obligations code unless it is satisfed that it meets

the criteria set out in this section.4 The criteria or

approval o the initial obligations code are:

the provisions o the code are objectively

justifable in relation to the matters to which itrelates

that those provisions are not such as to

discriminate unduly against particular persons

or against a particular description o persons

that those provisions are proportionate to

what they are intended to achieve

'that, in relation to what those provisions are

intended to achieve, they are transparent5

Specifc provisions:

Adding to these general criteria, the initial

obligations code needs to include a long list

o specifc provisions that will underpin the

notifcation process. The required provisions

include the copyright inringement reports, the

notifcation o subscribers, subscriber appeals

against copyright inringement reports and a

threshold or defning relevant subscriber.

Copyright inringement reports andstandard o evidence:

The initial obligations code must set out provisions

concerning copyright inringement reports,6

thereore the initial obligations code must

establish:

requirements as to the means o obtaining

evidence o inringement o copyright orinclusion in a report

the standard o evidence that must be

included

the required orm o the copyright

inringement reports sent by the copyright

owner.7

4 Digital Economy Act 2010, Section 5 (Communications Act 2003, Section 124C), subsection 6 & Digital Economy Act 2010,

Section 6 (Communications Act 2003, 124D), subsection 65 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(i), (j), (k) and (l)6 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(a)7 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 2


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7Consumer Focus

According to Section 3 o the DE Act the

copyright inringement report must be sent tothe internet service provider within one month o

the day on which the evidence was gathered.8

Copyright owners must provide the ollowing

inormation in the copyright inringement reports

they send to internet service providers:

a statement that there appears to have been

an inringement o the owners copyright

a description o the apparent inringement

evidence o the apparent inringement thatshows the subscribers IP address and the

time at which the evidence was gathered

any other requirement o the initial obligations

code9

Identifcation o subscribers:

The DE Act requires that the initial obligations

code sets out requirements as to the means by

which the internet service provider identifes thesubscriber.10 In doing so the initial obligations

code needs to make provisions on the method

used by an internet service provider to match the

IP address supplied by the copyright owner in

the copyright inringement report to one o their

subscribers.

Notifcation o subscribers by

internet service providers:The initial obligations code must also make

provisions concerning the notifcation o

subscribers in relation to whom an internet

service provider receives one or more copyright

inringement reports.11

The DE Act does not speciy that a subscriber

must be notifed by the internet service providerabout every copyright inringement report made

in relation to their account. Instead the DE Act

states that the initial obligations code must include

provisions on which o the copyright inringement

reports the provider must notiy the subscriber

o.12

The DE Act also provides that the initial obligations

code must make requirements as to the orm,

content and means o the notifcation in each

case13 and Section 3 provides a long list o

inormation that notifcations sent to subscribers

must include:

a statement that the notifcation is sent

under this section in response to a copyright

inringement report

the name o the copyright owner who made

the report

a description o the apparent inringement evidence o the apparent inringement that

shows the subscribers IP address and the


inormation about subscriber appeals and the

grounds on which they may be made

inormation about copyright and its purpose

advice, or inormation enabling the subscriber

to obtain advice, about how to obtain lawul

access to copyright works

advice, or inormation enabling the subscriber

to obtain advice, about steps that a subscriber

can take to protect an internet access service

rom unauthorised use

anything else that the initial obligations code

requires the notifcation to include14

8 Digital Economy Act 2010, Section 3 (Communications Act 2003, 124A, subsection 69 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 310 Digital Economy Act 2010, Section 3 (Communications Act 2003, 124A), subsection 3(d)

11

Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(b)12 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 313 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 3

14 Digital Economy Act 2010, Section 3 (Communications Act 2003, 124A), subsection 6


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In relation to anything else the initial obligations

code may require the notifcation to include, thesection provides the ollowing suggestions:

a statement that inormation about the

apparent inringement may be kept by the

internet service provider

a statement that the copyright owner

may require the provider to disclose which

copyright inringement reports made by the

owner to the provider relate to the subscriber

a statement that, ollowing such a disclosure,the copyright owner may apply to a court

to learn the subscribers identity and may

bring proceedings against the subscriber or

copyright inringement

where the requirement or the provider to

send the notifcation arises partly because o

a report that has already been the subject o a

notifcation... a statement that the number o

copyright inringement reports relating to the

subscriber may be taken into account or thepurposes o any technical measures15

Data retention:

The initial obligations code must also set out

provisions about how internet service providers

are to keep inormation about subscribers16 and

it needs to limit the time or which they may

keep that inormation.17 Section 3 states that

internet service providers must notiy subscribers

o copyright inringement reports within one

month rom the day they received the copyright

inringement report rom the copyright owner.18

In addition Section 7 establishes that the initial

obligations code must not permit any copyrightinringement report received by an internet service

provider more than 12 months beore the date

o a notifcation o a subscriber to be taken into

account or the purpose o the notifcation.19

Relevant subscriber and copyrightinringement list threshold:

Part o the inormation held by internet service

providers on their subscribers will be thecopyright inringement list in relation to relevant

subscribers and the initial obligations code must

also set the threshold applying or the purpose

o determining who is a relevant subscriber within

the meaning o section 124B20 (that is DE Act

section 4).

As defned in Section 4 o the DE Act, a relevant

subscriber is one or whom the copyright

inringement reports made by the owner to the

provider have reached the threshold set in theinitial obligations code.21

This means that the initial obligations code has to

state how many copyright inringement reports an

internet service provider must receive in relation to

a subscriber beore they are classifed as relevant

subscriber.

15 Digital Economy Act 2010, Section 3 (Communications Act 2003, 124A), subsection 816 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(d)17 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(e)

18

Digital Economy Act 2010, Section 3 (Communications Act 2003, 124E), subsection 1(e)19 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124A), subsection 520 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(c)

21 Digital Economy Act 2010, Section 4 (Communications Act 2003, 124B), subsection 3


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9Consumer Focus

Once a subscriber has become relevant, the

internet service provider must establish acopyright inringement list or that subscriber.22

The Section provides that the threshold may be

set by reerence to any matter including one

or more o the ollowing criteria: the number o

copyright inringement reports, the time within

which the reports are made and the time o the

apparent inringements to which they relate.23

The Section also provides that i the threshold

is set in relation to the time o the apparent

inringements to which they relate it must operate

in such a way that a copyright inringement report

received by an internet service provider more than

12 months beore a particular date does not aect

whether the threshold is met on that date; and a

copyright inringement list provided under section

124B must not take into account any such

report.24 This means that i the threshold is set

in relation to the time the apparent inringement

occurred, only copyright inringement reports

received by the internet service provider less than12 months ago can be taken into account or the

purpose o defning a relevant subscriber.

Subscriber appeal against copyrightinringement reports:

The initial obligations code can only be approved

by Ocom i it meets the requirements concerning

subscriber appeals against copyright inringement

reports.

25

Section 13 on subscriber appealsstates that the initial obligations code must coner

on subscribers the right to bring a subscriber

appeal.26

Section 13 also states that the initial obligations

code must also provide that there is a personwho, under the code, has the unction o

determining subscriber appeals27 and that that

person is or practical purposes independent

(so ar as determining subscriber appeals

is concerned) o internet service providers,

copyright owners and Ocom.28 Essentially the

initial obligations code has to provide or the

establishment o an appeals body or the purpose

o subscriber appeal.

The person determining subscriber appeals must

have the ollowing powers:

to secure so ar as practicable that a

subscriber is not prejudiced or the purposes

o the copyright inringement provisions by an

act or omission in respect o which an appeal

is determined in avour o the subscriber

to make an award o compensation to be

paid by a copyright owner or internet service

provider to a subscriber aected by such an

act or omission

where the appeal is determined in avour o

the subscriber, to direct the copyright owner

or internet service provider to reimburse the

reasonable costs o the subscriber29

In relation to subscriber appeals the initial

obligations code must provide that a subscriber

has the right to appeal on the grounds that the

copyright owner or the internet service provider

did not comply with the initial obligations code or

any obligation regulated by the initial obligations

code.30

22 Digital Economy Act 2010, Section 4 (Communications Act 2003, 124B), subsection 223 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 5

24 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 625 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(h)26 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 2(a)27

Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 2(b)28 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 2(c)29 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 730 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 4


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The initial obligations code must also provide the

ground or appeal in the case where an appealrelates to, or anything done by reerence to, a

copyright inringement report. The ollowing two

grounds or appeal are specifed in relation to a

copyright inringement report:

that the apparent inringement to which the

report relates was not an inringement o

copyright

that the report does not relate to the

subscribers IP address at the time o theapparent inringement31

In relation to subscriber appeal on these two

grounds the initial obligations code must provide

that the appeal must be determined in avour o

the subscriber i he or she shows that:

the act constituting the apparent inringement

to which the report relates was not done by

the subscriber

the subscriber took reasonable steps to

prevent other persons inringing copyright by

means o the internet access service32

The initial obligations code must also provide that

an appeal on any grounds must be determined

in avour o the subscriber unless the copyright

owner or internet service provider can show that:

the apparent inringement was aninringement o copyright

the report relates to the subscribers IP

address at the time o that inringement33

In relation to the costs o subscriber appeals

the initial obligations code must make adequatearrangements or the costs incurred by the person

determining the subscriber appeal to be paid by

the internet service providers, copyright owners

and/or the subscriber concerned.34 Whether or

not a subscriber has to pay a ee or bringing

an appeal, and how much the internet service

providers and copyright owners have to pay

towards the cost o the appeals body, is to be

determined by the Secretary o State in an order.35

The initial obligations code is then to implement

the provisions in the order and make practical

arrangements.

Administration and enorcement othe initial obligations code:

Section 7 o the DE Act also requires the initial

obligations code to cover issues o administration

and enorcement o the initial obligations code,36

which is the role o Ocom.37 According to the

DE Act Ocom must resolve owner-providerdisputes,38 which are defned as a dispute that

is between persons who are copyright owners

or internet service providers in relation to an act

or omission in relation to an initial obligation or

an initial obligations code.39 So i there are any

disputes between copyright owners and internet

service providers on how to comply with the initial

obligations code, it is or Ocom to resolve, and

the initial obligations code must make adequate

provisions o the resolution o such disputes.

31 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 332 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 6

33 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 534 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 2(d)35 Digital Economy Act 2010, Section 15 (Communications Act 2003, 124M), subsection 236

Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(g)37 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 738 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E) subsection 739 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E) subsection 9


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11Consumer Focus

Furthermore the initial obligations code must

make adequate arrangements or Ocomto obtain any inormation or assistance rom

internet service providers or copyright owners

that Ocom reasonably require or the purposes

o administering and enorcing the code.40 This

means that the initial obligations code establishes

a process whereby Ocom can require internet

service providers and copyright owners to provide

inormation and assistance.

According to Section 7 o the DE Act the initial

obligations codes provisions may also include

provisions or the payment o a penalty i the

internet service provider or copyright owner

contravenes their initial obligations.

The provisions may also require copyright owners

to indemniy an internet service provider or

any loss or damage resulting rom the owners

ailure to comply with the initial obligations code

or the flesharing provisions o the DE Act more

generally.41

Costs:

According to Section 7 o the DE Act the initialobligations code must make any provision about

contributions towards meeting costs that is

required to be included by an order under Section

15 on the sharing o costs.42 The initial obligations

code must make adequate arrangements or the

costs incurred by Ocom in administering and

enorcing the code to be met by internet service

providers and copyright owners.43

Under Section 15 o the DE Act the Secretaryo State specifes by order the payment o

contributions towards costs incurred under

the flesharing provisions o the DE Act. These

provisions must be included in the initial

obligations code.44 Copyright owners and

internet service providers can be required to

make payment contributions or the flesharing

provisions, while subscribers can be required

to make payment contributions towards the

subscriber appeal.45 Once the order has been

made, the initial obligations code has to makearrangement or payment in accordance with the

order.

40 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E) subsection 741 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E) subsection 8

42

Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E) subsection 1()43 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E) subsection 744 Digital Economy Act 2010, Section 15 (Communications Act 2003, 124M) subsection 1

45 Digital Economy Act 2010, Section 15 (Communications Act 2003, 124M) subsection 2


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Criteria or approval:

Criteria the initial obligations code must meet

beore Ocom can approve it:

the provisions o the code are objectively

justifable in relation to the matters to which it

relates

that those provisions are not such as todiscriminate unduly against particular persons

or against a particular description o persons,

that those provisions are proportionate to

what they are intended to achieve and that, in

relation to what those provisions are intended

to achieve, they are transparent.46

Specifc provisions that must

be included in the initialobligations code:

Copyright inringement reports andstandard o evidence:

the required orm o the copyright

inringement reports sent by copyright

owners47 which must include the ollowing

inormation:

a statement that there appears to have

been an inringement o the owners

copyright


evidence o the apparent inringement that



any other requirement o the initial

obligations code48

requirements as to the means o obtaining

evidence o inringement o copyright orinclusion in a copyright inringement report

the standard o evidence that must be

included

a copyright inringement report must be sent

to the internet service provider within one

month o the day on which the evidence was

gathered49

Identifcation o subscribers:

requirements as to the means by which

the internet service provider identifes the

subscriber50

Notifcation o subscribers byinternet service providers:

provisions concerning the notifcation o

subscribers51

provisions on which o the copyright

inringement reports the provider must notiythe subscriber o52

make requirements as to the orm, content

and means o the notifcation in each case53

which must include the ollowing inormation:

Quick reference list on what the initialobligations code must include

46 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(i), (j), (k) and (l)

47 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 248 Digital Economy Act 2010, Section 3 (Communications Act 2003, 124A), subsection 649 Digital Economy Act 2010, Section 3 (Communications Act 2003, 124A), subsection 3(d)

50 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 351 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(b)52 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 353 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 3


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13Consumer Focus

a statement that the notifcation is sent

under this section in response to a

copyright inringement report the name o the copyright owner who

made the report


evidence o the apparent inringement that



inormation about subscriber appeals and

the grounds on which they may be made

inormation about copyright and itspurpose

advice, or inormation enabling the

subscriber to obtain advice, about how to

obtain lawul access to copyright works

advice, or inormation enabling the

subscriber to obtain advice, about steps

that a subscriber can take to protect an

internet access service rom unauthorised

use

anything else that the initial obligationscode requires the notifcation to include54

anything else the initial obligations code may

require can include:

a statement that inormation about the

apparent inringement may be kept by the

internet service provider

a statement that the copyright owner

may require the provider to disclose which

copyright inringement reports made by

the owner to the provider relate to the

subscriber

a statement that, ollowing such a

disclosure, the copyright owner may apply

to a court to learn the subscribers identityand may bring proceedings against the

subscriber or copyright inringement

where the requirement or the provider to

send the notifcation arises partly because

o a report that has already been the

subject o a notifcation... a statement

that the number o copyright inringement

reports relating to the subscriber may be

taken into account or the purposes o any

technical measures55

Data retention:

provisions about how internet service

providers are to keep inormation about

subscribers56

set a limit on the time or which they may keep

that inormation57

internet service providers must notiy

subscribers o copyright inringement reports

within one month rom the day they receivedthe copyright inringement report rom the

copyright owner58

copyright inringement report received by an

internet service provider more than 12 months

beore the date o a notifcation o a subscriber

cant be taken into account or the purpose o

the notifcation59



Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(d)57 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(e)

58 Digital Economy Act 2010, Section 3 (Communications Act 2003, 124E), subsection 1(e)59 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 4


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Relevant subscriber and copyrightinringement list threshold:

set the threshold applying or the purpose o

determining who is a relevant subscriber,60

that is:

a subscriber or whom the copyright

inringement reports made by the owner to

the provider have reached the threshold

set in the initial obligations code61

the threshold may be set by reerence to any

matter including:

the number o copyright inringement

reports,

the time within which the reports are made

the time o the apparent inringements to

which they relate62

i the threshold is set in relation to the time

o the apparent inringements to which they

relate it must operate in such a way that

a copyright inringement report received

by an internet service provider more than

12 months beore a particular date doesnot aect whether the threshold is met on

that date; and a copyright inringement list

provided under section 124B must not take

into account any such report.63

Subscriber appeal against copyrightinringement reports:

must make the requirements concerning

subscriber appeals against copyright

inringement reports64

coner on subscribers the right to bring a

subscriber appeal65

provide the ground or subscriber appeals,

which are:

the copyright owner or the internet serviceprovider did not comply with the initial

obligations code or any obligation regulated

by the initial obligations code66

that the apparent inringement to which the

report relates was not an inringement o

copyright

that the report does not relate to the

subscribers IP address at the time o the

apparent inringement67

i the appeal was brought on the previous

two ground the initial obligations code must

provide that the appeal must be determined

in avour o the subscriber i he or she shows

that:

the act constituting the apparent

inringement to which the report relates was

not done by the subscriber and

the subscriber took reasonable steps to

prevent other persons inringing copyright

by means o the internet access service68

an appeal on any grounds must be determined

in avour o the subscriber unless the copyright

owner or internet service provider can show

that:

the apparent inringement was an

inringement o copyright and

the report relates to the subscribers IP

address at the time o that inringement69

provide that there is a person who, underthe code, has the unction o determining

subscriber appeals70

60 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(c)61 Digital Economy Act 2010, Section 4 (Communications Act 2003, 124B), subsection 362 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 5

63 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 664 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(h)65 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 2(a)

66 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 4

67 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 368 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 669 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 5

70 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 2(b)


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15Consumer Focus

that that person is or practical purposes

independent (so ar as determining subscriber

appeals is concerned) o internet serviceproviders, copyright owners and Ocom71

the remit o the person determining subscriber

appeals must include the ollowing powers:

to secure so ar as practicable that

a subscriber is not prejudiced or the

purposes o the copyright inringement

provisions by an act or omission in respect

o which an appeal is determined in avour

o the subscriber

to make an award o compensation tobe paid by a copyright owner or internet

service provider to a subscriber aected by

such an act or omission

where the appeal is determined in avour

o the subscriber, to direct the copyright

owner or internet service provider to

reimburse the reasonable costs o the

subscriber72

make adequate arrangements or the costs

incurred by the person determining thesubscriber appeal to be paid by the internet

service providers, copyright owners and/or the

subscriber concerned73

Administration and enorcement othe initial obligations code:

make provisions or the administration and

enorcement o the initial obligations code,74

by Ocom75

arrangement or Ocom to resolve owner-

provider disputes,76 that is a dispute between

persons who are copyright owners or internet

service providers in relation to an act or

omission in relation to an initial obligation or an

initial obligations code77

adequate arrangements or Ocom to obtain

any inormation or assistance rom internetservice providers or copyright owners that

Ocom reasonably require or the purposes o

administering and enorcing the code78

provisions or the payment, to any person

specifed in the code, o a penalty i the

internet service provider or copyright owner

contravenes their initial obligations

provisions requiring copyright owners to

indemniy an internet service provider or any

loss or damage resulting rom the ownersailure to comply with the initial obligations

code or the flesharing provisions o the DE Act

more generally79

Costs:

any provision about contributions towards

meeting costs that is required to be included

by an order under Section 1580

arrangements or the costs incurred by Ocom

in administering and enorcing the code to be

met by internet service providers and copyright

owners81

71 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 2(c)72 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 773 Digital Economy Act 2010, Section 13 (Communications Act 2003, 124K), subsection 2(d)

74 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1(g)75 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 776 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 777

Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 978 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 779 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 880 Digital Economy Act 2010, Section 7 (Communications Act 2003, 124E), subsection 1()


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ISBN: 978-1-907125-27-0

Published: June 2010

I you have any questions or would like urther inormation about our research,please contact Saskia Walzel, by telephone on 020 7799 7977 or

via email [email protected]

I you require this publication in Braille,

large print or on audio CD please contact us.

Dea, hard o hearing or speech impaired consumers

can contact Consumer Focus via Text Relay:

From a textphone, call 18001 020 7799 7900

From a telephone, call 18002 020 7799 7900

Consumer Focus

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Media team: 020 7799 8004/8005/8006

Documents

File Sharing Provisions Guide to Ofcoms Initial Obligations Code