Digital Economy Bill

The draft Digital Economy Bill has been published and will now begin to be debated by the Houses of Parliament. Most of the Bill is as expected from the various ministerial statements over the summer. Two measures to reduce copyright infringement will be introduced immediately:

• Under clause 4 of the Bill, Internet Access Providers must pass on allegations of copyright breach they receive to the responsible subscribers (the Bill mentions that this might be done by electronic or traditional post, though there is provision for a later Code to specify one or other);
• Under clause 5, copyright owners (or those working on their behalf) can require IAPs to provide a list of all the allegations they have made, grouped by subscriber (though without identifying the subscriber). No court or other process is involved in this request.

This second measure appears to require IAPs to keep a list of all allegations received, not just count the number per subscriber. As we observed in our response to an earlier consultation it also appears vulnerable to a rightsholder making an allegation against a selection of home pages which might allow them to identify individual subscribers from what is supposed to be anonymised information.

At some later date clauses 10 & 11 would allow the Secretary of State to introduce additional requirements on IAPs to impose technical measures on those alleged to have breached copyright. The technical measures proposed are to:

• "[limit] the speed or other capacity of the service provided to a subscriber;"
• "[prevent] a subscriber from using the service to gain access to particular material or [limit] such use;"
• "[suspend] the service provided to a subscriber;"
• "[limit] the service provided to a subscriber in another way."

Most of the controls that might protect a service provider or subscriber against incorrect allegations are left to a Code to be adopted by Ofcom. However it appears that a subscriber's only remedy in the case of an incorrect allegation is to appeal against either a notification or the imposition of a technical measure; the Code may allow technical measures to be suspended until after an appeal has been heard. There seems to be no duty on a service provider to check the accuracy of a complaint, nor power to do so should they wish to.

The duties under the Bill would apply to organisations providing "Internet Access Services", which is defined for the first time in clause 16 of the Bill. The definition excludes networks such as JANET, which only provide connections to other communications providers; it also seems to exclude companies, universities and colleges who provide Internet access to individuals so long as Internet access  is not the main purpose of the relationship.

One unexpected section of the Bill, which has already provoked a great deal of critical comment, is clause 17 that grants the Secretary of State powers to amend the Copyrights, Designs and Patents Act 1988 if this appears necessary to prevent or reduce copyright infringement by means of the Internet. Normally such amendments, if not envisaged in the original Act, would need primary legislation, debated by both houses of Parliament.