Ofcom have at last published the Initial Obligations Code on how ISPs must deal with copyright infringement reports under the Digital Economy Act 2010. The accompanying notes, and in particular Annex 5, provide welcome recognition of the work that is already done by universities and colleges to reduce infringement on the Janet network, as well as clarifying how the Act’s definitions apply to the network and its customers.
Paragraph A5.40 confirms that an internet access provider will be classed as an ISP under the Act where the service is provided by means of an agreement with the subscriber, even if that agreement is oral or implicit. Thus “public bodies like libraries or universities are likely to be ISPs, providing internet access under an agreement with their readers or students respectively”. Paragraph A5.2 notes that such public intermediaries will not meet the initial qualification threshold (400000 broadband lines), so will not be required to comply with the initial Code. A5.48 says that when the Code is revised, the new qualification threshold is likely to relate to numbers of infringement reports received, so provided public intermediaries continue to act effectively against such infringements as are reported (as they are required to by the Janet AUP) they are likely to continue to fall below that qualification threshold. This interpretation therefore encourages us to continue and improve our existing measures to deal with copyright infringement, rather than forcing us to adopt a completely new approach.
More generally, the Code has improved some features from the 2010 draft, as we suggested in our response to that consultation. In particular it will now be possible for an ISP to be rewarded for reducing the rate of infringement by its users by dropping below the qualifying threshold and outside the scope of the Code. The procedures rightsholders use to detect infringements will now need to be checked and approved by Ofcom and standards for the systems to be used by both rightsholders and ISPs may be produced. The new Code also confirms that the Act does not require ISPs who do not currently collect personal details from their users (for example wifi scratchcards and pay-as-you-go mobile phones) to start doing so.
Finally the requirements for the content of an Copyright Infringement Report (para 16 of the draft Code) have been strengthened, in particular by the requirements to include the start and end times when the alleged infringement took place and that all timestamps must be given in UTC to avoid problems of synchronisation or timezone differences. However the reasons for rejecting a CIR as invalid don’t seem sufficient to let the reporter know what the problem was. A single response that “the ISP has not been able to identify the subscriber” (Para 18(d) of the Code) seems to have to cover the different situations where the ISP doesn’t have the necessary logs, or the CIR information could refer to two or more subscribers (for example if NAT/PAT devices or proxies are used), or the CIR information did not match the ISP’s own flow data (suggesting that there may be a problem with the reporting system, such as a faulty clock). To improve the number of reports that can be actioned, it would be helpful to be able to feed that information back to the reporter.
In a related development, the Department for Culture, Media and Sport have announced that they plan to repeal sections 17 and 18 of the Act. These created a power to order the blocking of internet locations, but have never been turned on. Since it is now clear that that power already existed under section 97A of the Copyright, Designs and Patents Act it seems to have been decided that they are redundant.