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Ofcom: Here come the UK online copyright rules ... in 2015. Maybe

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Ofcom has finally published a draft obligations code that specifies how the UK's largest ISPs should respond to copyright infringement notifications for a one-year monitoring period. The Code is part of proposals passed in 2010 as the Digital Economy Act.

The DEA, however, has run into several difficulties since its passing, including a judicial review challenge from ISPs BT and TalkTalk and a curious bureaucratic malaise. Ofcom first published its consultation into the Code in May 2010.

The Code itself is largely unchanged. It still doesn't require ISPs to police their networks – that burden remains with copyright-holders, who must also pay 75 per cent of the costs – nor can ISPs disclose customer information. It doesn't require ISPs to take any punitive action against freetards, either. There are some minor technical tweaks – the copyright-holders don't have to pay the costs upfront, for example.

But the Code does require that the six largest UK ISPs (BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media) take action in response to copyright infringement reports (CIRs), specifically, by sending out notification letters to subscribers.

After three snail mail letters within a period of 12 months, the customer's IP address may go on a register, or CIL and the rights-holder may obtain a court order to compel the ISP to reveal the customer's identity. But an appeals body will be set up – although happily under the revised draft Code, subscribers can now appeal only on grounds specified in the Digital Economy Act, rather than upon any grounds they wished, as was previously the case.

Ofcom will administer the process and has opened up the draft Code for a one-month consultation period. In parallel, a consultation has been opened on how the costs of the process will be shared – although that has largely been privately agreed, behind closed doors, after much haggling.

After the one-month consultation, the Code goes to the European Commission in Brussels for approval, and then is laid before Parliament.

Ofcom doesn't expect the first letters to go out until 2014 – giving ISPs a generous year in which to do their paperwork and set up the Appeals Body.

"We won't see the first letters sent out under the code 18 months from now," a spokesman confirmed.

The DEA specifies that after the Code has been in place for 12 months, and if file-sharing hasn't been reduced, then the Minister has the power to specify sanctions ISPs must take against serial infringers. But this is now receding into the distant future: mid-2015 at the earliest. The date of the next General Election is (for the first time ever) set in law: it must take place on the 7 May, 2015.

The original timetable envisaged the first letters going out in early 2011, and the first technical measures being implemented around about now. What happened?

Leading civil servants responsible for implementing democratically scrutinised and approved legislation have never hidden their antipathy towards it – or not hidden it very well* – but Ofcom blames BT and TalkTalk for the Judicial Review.

In April Justice Parker finally threw out their legal challenge, describing the DEA as "a more efficient, focused and fair system than the current arrangements" - and reminding ISPs that their passive, conduit role was intact under the Act. ®

In a written statement to us earlier this year Ofcom's director of internet policy, Campbell Cowie, denied any foot-dragging:

I am fully supportive of its objectives.

I believe that the measures contained within the Act will successfully reduce levels of online copyright infringement, provided they are part of a system that changes incentives and encourages people to use the increasing number of lawful services which exist.

Drafting an initial code of practice for ISPs and rights holders has been complex, due to the highly technical nature of the issues involved and the uncertainties caused by the ongoing Judicial Review. The delays caused by the complex process of approvals for the Code has also been challenging.

I have openly discussed these challenges; however, I have never said anything that could be perceived as being hostile to the Act or the intent behind it.

There you go.

Bootnote

*Ofcom refused to allow The Register into this morning's DEA press briefing "for reasons of space". We believe them – and will campaign for the cash-strapped regulator to get a bigger office.

Related link

The Code consultation... Ofcom's overview

Internet Security Threat Report 2014

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