The Digital Economy Act (the Act) has created new responsibilities for Ofcom to adopt measures aimed at significantly reducing levels of unlawful file sharing via peer-to-peer online networks. The Act has set out two initial obligations on Internet Service Providers (ISPs) in order to secure a coordinated approach, involving both copyright owners and ISPs. Should those initial measures fail to significantly reduce levels of unlawful file sharing the Secretary of State may require that ISPs implement technical measures against serious repeat infringers.
Qualifying ISPs will be required to notify subscribers of allegations made by copyright owners that their account has been used for unlawful file sharing and to maintain a list of the subscribers who receive multiple unchallenged notifications. Subscribers must be provided with sufficient information in any notification such that they can challenge the basis under which the notification has been sent. They must also have access to a robust and effective appeals mechanism. Subscribers on those lists may have their details passed to relevant copyright owners who may pursue legal action, though any such transfer of personal information will require a Court Order. Any processing of subscriber data must be in compliance with the relevant data protection laws.
These measures will be introduced and governed through a code of practice, which will be approved, implemented and enforced by Ofcom. Ofcom will also establish mechanisms for the resolution of disputes between parties to the code.
Ofcom will provide quarterly reports to the Secretary of State, estimating levels of unlawful file sharing and assessing the extent of legal action by copyright owners. We will also report annually on a broader range of factors, including consumer education campaigns and the availability of attractive lawful alternative services.
Ofcom can either consider a code drafted by industry or introduce a code itself, but the Act requires that this must be done such that the initial obligations code is made no later than 8 months from Royal Assent. This timetable includes a requirement for the code to be approved by the European Commission, a process which takes a minimum of 3 months.
Our first task will be to establish the feasibility of an industry drafted code. Such a code would need to have the support of a sufficiently wide range of stakeholders for it to be credible and would need to be submitted to Ofcom within a period of time which would allow Ofcom to satisfy the deadline for implementation. Failing this, Ofcom will move quickly to draft an appropriate code on which we will seek input from all stakeholders.
We intend to begin work immediately on establishing a robust subscriber appeals mechanism, and a framework for handling disputes. In parallel, we will also establish a methodology for estimating levels of unlawful file sharing. We are required to establish a baseline estimate for the day on which the initial obligations code is implemented. It will be against this estimate that the impact of the measures will be assessed.
To comply with the timetable in the Act we will need to publish a draft code for consultation no later than May 2010, publish a Statement no later than the end of September 2010 and, at the same time, submit a draft statutory instrument embodying the approved code to the European Commission for consideration. Following the implementation of the initial obligations code, we will publish our quarterly reports to the Secretary of State on our estimates of unlawful file sharing. We will also publish an annual report, covering a broader range of factors.
Ofcom understands that there is widespread interest in this work and is therefore proposing a number of opportunities for stakeholder engagement: