Ofcom have invited me to a meeting to discuss the definitions in section 16 of the Digital Economy Act 2010, so I’ve been staring at what the Act says and trying to make sense of how it applies to universities or colleges with JANET connections. Since a wide variety of answers to this question have already been given by Ministers and Lords, this is clearly a hard question, so the following are very much my personal (and possibly temporary if anyone points out something I haven’t noticed) thoughts.
For this discussion the interesting extracts from section 16 are as follows:
“internet access service” means an electronic communications service that
(a) is provided to a subscriber
(b) consists entirely or mainly of the provision of access to the internet; and
(c) includes the allocation of an IP address or IP addresses to the subscriber to enable that access.
“subscriber”, in relation to an internet access service, means a person who
(a) receives the service under an agreement between the person and the provider of the service; and
(b) does not receive it as a communications provider.
So is a university or college a “subscriber” under that definition? I don’t think so, because it’s clear from the terms for the provision of JANET services that we expect the university to pass on a network service to others, i.e. to act as a communications provider, so failing part (b) of the definition. This, incidentally, means that JANET isn’t an “ISP” because if you don’t have subscribers then you can’t be an ISP under part (a) of the definition of an Internet Access Service.
That’s the important question, since classing universities and colleges as subscribers under the Act would mean completely changing our current processes for dealing with copyright complaints. Complaints would then have to be sent to the “ISP” (JANET(UK)) which is a complete waste of time and money because we can’t identify the individual responsible and we would only pass the complaint on to the university or college using contact details for IP ranges that are published in the WHOIS directory anyway!
Less important – because universities and colleges are anyway bound by the JANET AUP, which is stricter than the Act – is the question of whether universities and colleges come within the definition of “ISP”? Again I think it can be argued that they don’t, because although they do provide an electronic communications service to staff and students, the main purpose of that service is actually to connect to computers and networks in that and other universities, it isn’t to connect to the Internet. So it fails part (b) of the Internet Access Service definition.
If I’m right, this definitely does not mean you can all stop dealing with copyright infringements! It just means that it will continue to be JANET(UK) requiring you to do so (with the ultimate sanction under the AUP of disconnecting the university or college from JANET) rather than Ofcom (with a sanction under the Act of a six figure fine). So please keep up the good work 🙂
I’ll update this if I have any further thoughts or, in particular, if Ofcom disagree.