Responding to Ofcom’s notice that it seeks to implement the Digital Economy Act through its Initial Obligations Code, Mike O’Connor, Chief Executive of Consumer Focus, said:
‘We welcome the positive steps Ofcom have taken to strengthen the evidence standard required of copyright owners if they are to accuse subscribers of copyright infringement. However, we still have concerns over the draft Initial Obligations Code. We are calling on Ofcom produce a revised Code which will respect legitimate consumer rights and help businesses and public bodies to continue to provide internet access to consumers.1
‘Ofcom’s draft code does not provide clarity to WiFi providers, businesses or public bodies over who is responsible for copyright infringement carried out through a shared connection. We are concerned that libraries and universities could find themselves incurring significant costs which may result in them deciding to limit internet access.2 Hotels, pubs and cafes also face legal uncertainty. There is no evidence that significant levels of infringement occur on WiFi networks or the networks of libraries, which provide access to the web for those on low incomes and the 20 per cent of households without internet connection.3
‘The Digital Economy Act requires subscribers to prove they did not commit an infringement and took reasonable steps to ensure others did not do so on their connection if they are to successfully appeal an accusation. The expert report we are publishing today found that it is technically impossible for bill payers to prove which computer within a household was used to carry out an infringement, let alone who was at the keyboard at the time. This makes the proposed appeals process flawed and potentially unfair and we ask Government to rethink this process.’
Notes to editors:
Please find the technical expert report published by Consumer Focus regarding tracing online copyright infringement. Written by Dr Richard Clayton, the report was formally submitted to Ofcom and the Department for Culture, Media and Sport (DCMS) in April 2012.
- Following the end of the consultation on the draft Initial Obligations Code which ends today, Ofcom intends to notify the Initial Obligations Code to the European Commission and lay it before Parliament by the end of this year. The Code is the first stage in implementing the Digital Economy Act. Under the Digital Economy Act, internet subscribers (i.e. the bill payer) receive notifications that copyright owners have lodged a ‘copyright infringement report’ relating to their ISP connection. The subscriber can appeal notices by showing that they did not commit the alleged infringement and took “reasonable steps” to prevent others from infringing.
It is proposed that consumers who receive three notifications in 12 months are placed on a ‘copyright infringement list’. Copyright owners can then take consumers on this list to court for civil copyright infringement. The Digital Economy Act also provides for a Technical Obligations Code, which the Government can implement 12 months after the Initial Obligations Code has come into force. Under the Technical Obligations Code consumers on the “copyright infringement list” can be made subject to technical measures, including the slowing or suspension of their internet connection.
- The Chartered Institute of Library and Information Professionals has already warned that the proposals ‘risk limiting internet access in libraries, schools and universities’
- Ofcom’s draft Initial Obligations Code does not clarify whether WiFi providers, businesses and public bodies providing internet access to consumers are “subscribers” under the Digital Economy Act 2010. Ofcom proposes that public bodies such as libraries contact their ISP to secure the position of “upstream ISP”, rather than providing legal certainty in the Initial Obligations Code. Compounding the issue is the Government proposal that “subscribers” pay a £20 fee to challenge copyright infringement accusations, and so avoid being placed on “copyright infringement lists”.Consumer Focus has previously raised concerns over the £20 appeal fee proposals outlined in a draft cost order which has been laid before Parliament. It has been criticised by the Secondary Legislation Scrutiny Committee, and will be subject to an affirmative approval by both Houses of Parliament in September.