Digital Economy Act: Who is Covered?

Ofcom’s draft Digital Economy Act Code recognises that the real Internet is more complex than the Act’s model, and that there may be a variety of “communications providers”, “Qualifying ISPs” and “non-Qualifying ISPs” involved in getting packets (and possibly Copyright Infringement Notices) delivered to “subscribers”. This post describes some of the combinations likely to be experienced by Janet-connected organisations.

University/college/library/etc. providing its members with connectivity via Janet. According to Annex 5 of the Code (para A5.40), such organisations will normally have an agreement with their users, which means that the organisation is the “ISP” and the user is the “subscriber”. Since Janet only provides connectivity to such organisations, it isn’t an ISP (it has no Subscribers). The right place for rightsholders to send Copyright Infringement Reports (CIRs) to is therefore the organisation but, since no Janet-connected organisation is on the initial list of Qualifying ISPs, you aren’t bound by the Code when responding (it may be worth pointing this out to the reporter, as in UCISA’s template responses). You are bound by the Janet Acceptable Use Policy, however, so are expected to respond in accordance with our recommendations on responding to copyright complaints.

University/college/library/etc. providing its members with connectivity via a Qualifying ISP. Provided the organisation has an agreement with its users, as above, it will still be an ISP. Para A5.46 of Ofcom’s Code is clear that “the Qualifying ISP is not required to process a CIR” if it receives a report that relates to another connected ISP, and that it should respond to the person reporting by pointing out that they should contact that other ISP (under section 18(d) of the Code). Since, as above, the organisation is unlikely to be a Qualifying ISP, it will not be bound by the Code if it subsequently receives a CIR. Ofcom also recognise in para A5.56 that the Qualifying ISP may not always spot when this situation arises; in this case the Qualifying ISP may incorrectly send an infringement notice to the ISP; the ISP should remind the Qualifying ISP of its status and that the CIR is invalid as a result. Ofcom also invite discussion (in para A5.57) if there are any difficulties in resolving these situations.

University/college/library/etc. providing visitors with a service from a commercial hotspot provider. This is a relatively common situation, where a university shares its wireless infrastructure with a commercial hotspot provider. Here the hotspot provider has the agreement with the end-user so the end-user is the Subscriber, the provider the ISP, and the organisation does not need to be involved in any of the actions required by the Code. However Ofcom have stated that wireless internet providers will not be included in the initial list of Qualifying ISPs, so this arrangement is unlikely to be covered by the Act at least until the list of Qualifying ISPs is revised.

University/college/library/etc. providing open-access wifi (note that offering open access using a Janet connection is prohibited under the Eligibility Policy). Here there is unlikely to be any agreement with users; without an agreement the organisation will not be acting as an ISP. Depending on the agreement the organisation has with the ISP from which it gets its connectivity it may be classed either as a Communications Provider or as a Subscriber to that ISP. In the latter case, if the ISP is a Qualifying ISP then the organisation will effectively be in the same position as a domestic broadband subscriber: the Qualifying ISP will be required to send infringement notices to the organisation, and to add it to the serious infringers list (which may be disclosed to rightsholders) if multiple CIRs are received over a number of months.

By Andrew Cormack

I'm Chief Regulatory Advisor at Jisc, responsible for keeping an eye out for places where our ideas, services and products might raise regulatory issues. My aim is to fix either the product or service, or the regulation, before there's a painful bump!

Leave a Reply

Your email address will not be published. Required fields are marked *