Digital Economy Act – Signs of Life

The Department for Business, Innovation and Skills has published the first draft Statutory Instrument (SI) required for the implementation of the Digital Economy Act’s copyright enforcement process. The Online Infringement of Copyright (Initial Obligations)(Sharing of Costs) Order is is the SI that covers sharing of costs betwen rightsholders and ISPs: as suggested in last summer’s cost sharing consultation rightsholders will have to pay 75% of costs incurred by both ISPs and Ofcom, with ISPs meeting the remaining 25% of both.

There is still no sign of the SI that will contain the initial obligations code specifying the duties of Qualifying ISPs (and possibly identifying which networks will initially fall within that category), or any response to the consultation on the draft code that closed last July.

UPDATE: I hadn’t spotted that the text of the instrument doesn’t address the problem I pointed out in our original consultation response to Q7,  that it gives rightsholders an incentive to under-estimate the number of reports they expect to send. Thanks to Francis Davey, who did spot it, and also considers that making ISPs pay part of the enforcement costs may be unlawful under the European Authorisation Directive (which limits the requirements that Governments can place on those wishing to provide communications services).

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!

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