OFCOM Code Consultation

Ofcom have just announced the anticipated consultation on the Initial Obligations Code under the Digital Economy Act 2010. This is the Code that describes how rightsholders send copyright infringement notices to ISPs, who then pass (some of) them on to their subscribers. Responses to the consultation are due by the end of July.

No doubt I'll have more comments as I go through the detail of the draft, but one immediate observation from the press release is that Ofcom are proposing to use the "good ISP" threshold as suggested in section 124C(5) of the Act. That allows ISPs who have already reduced copyright infringement to a low level to be exempted from the Act's obligations; thus providing a clear incentive to ISPs to improve their users' behaviour. The Act envisages that the number of copyright infringement reports would be used to determine which ISPs should benefit from that provision. Unfortunately there's a bootstrapping problem: until the Code is in force and reports being sent, it's not possible to work out which ISPs are getting more reports than the threshold! So Ofcom are proposing to start with the seven largest fixed-line ISPs (those with more than 400,000 subscribers). Once the Code is in force (expected next year) it should be possible to use the threshold to move the obligations around to deal with any "piracy havens" that may emerge.

As previously discussed here, one of the major problems with the Act from JANET's point of view is that it is very unclear how its definitions apply to our network and the organisations it connects. However the use of a threshold may make this less important since it allows recognition of the good work on infringement reduction that has already been done by JANET and its customers, and provides all of us with an incentive to continue and even improve on it.