online infringement of copyright - the digital economy act 2010 29 june 2010 robin fry
Post on 28-Dec-2015
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Where has it come from?
deep frustration within music industry over file sharing
never been a successful criminal action reluctance to confront their own customers
directly?
… so an administrative solution has been demanded….
“three strikes” law but enforced by government / internet service
providers similar models in France, New Zealand, etc.
Previous voluntary protocol
Parties could not agree Limited commitment
> Act finally passed 8th April
… but further codes and statutory instruments needed
OFCOM consultation on “initial obligations” – 31st July
Central to the system is the role of
“internet service providers”
…. and this could cover universities, libraries, museums, wi-fi areas, conference centres etc.
So… what is meant to happen?
STEP 1
Copyright owner identifies that their copyright(s) have been infringed ‘‘by means of internet access’’
This could be:- email of an MP3 file
but more likely via usenet group P2P file-sharing
(Could it cover websites???)
What does copyright owner see or know?
the name of a file, its size, and an “IP address”
- May possibly do a test download – but may not
- May obtain file from different sources
STEP 2
Owner makes a “copyright infringement report” to the “internet service provider” covering• infringement of copyright• description• IP address• time and date
Delivered within 1 month
STEP 3
The ISP sends a “notification” to the subscriber within 1 month with detailed information required, including:-
apparent infringement possibility of appeal other legal services
STEP 4
ISP maintains records provides a “copyright infringement list” to copyright
owners on request lists number of notifications of those subscribers
who have reached threshold
… but does not identify them
Threshold?
3 notifications in any 12-month period?…but will this ever happen???
BPI want to reduce to 2 notifications Business software: just one?
The three letters
…you’ve been a bad boy
…you’ve been a very bad boy
…right, that’s it! I’m going to tell someone about you…
and then …steps to block/limit/restrict internet access
ISP = ‘‘ a person who provides an internet access service’’
Internet Access Service = “an electronic communications service that:- is provided to a subscriber consists entirely or mainly of the provision
of access to the internet; and includes the allocation of an IP address or
IP addresses to the subscriber to enable that access”
“In principle, operators of wi-fi networks would fall within the definition of internet service provider where the service is provided by means of an agreement with the subscribers even where this is oral or implicit”
(OFCOM)
Libraries, Universities / JANET, hotel chains, local authorities etc
Problem known long ago ….
‘We cannot give blanket exemptions for any such establishment. This would send entirely the wrong signal and could lead to ‘’fake’’ organisations being set up, claiming an exemption and becoming a hub for copyright infringement…’’
(BIS, Feb 2010)
But only ISPs with more than 400,000 subscribers (suggestion by Ofcom)
Consultation says this covers only: BT O2 Orange Post Office Sky Talk Talk Virgin Media (OFCOM)
But won’t all the serial infringers simply migrate to smaller ISPs?
Risk: That threshold will be reduced substantially
Further consultation on…
The enforcement of this ‘initial obligations’ code (July)
Code on sharing of costs between ISPs and copyright owner (September)
Technical Obligations Code
STEP 5 (in the DE Act but code still for consultation)
OFCOM prepare progress reports about infringement
OFCOM assesses whether obligations on ISPs are needed to reduce / suspend / limit internet access
Government make order
Subscriber can appeal against….
1. the making of a copyright infringement report
2. notification
3. being on a list
4. taking of a technical measure (eg suspension/blocking of access)
5. any other matter relating to the obligations or the codes
Appeals could be hugely complicated …. and expensive Prove it was me Prove who wrote the work Prove ‘qualification’ for copyright protection Prove exactly who is owner Show me the complete chain of title Prove originality of work Demonstrate it was not fair use It contravenes my human rights The Act is invalid
So who pays for appeals?
Initial obligations ISPs and copyright owners (not
subscribers)
Technical measures ISPs, copyright owners and subscribers
Costs generally All admin costs for initial obligations
= ISPs + copyright owners
75% of ISPs costs?No says BPI - demanding no additional contribution to
ISPs from copyright owners
Technical measures
Subscriber appeals
Other costs
Regulations for ‘blocking injunctions’ Court appeals beyond subscriber appeals Standard disclosure orders against ISPs Data protection issues Referrals to European Court of Human Rights Referrals to European Court of Justice
Why do need to consider these issues?
You might be an ‘ISP’! The threshold (400,000 subscribers) might well
reduce There might not be a threshold in other areas
eg for blocking injunctions
….or you might be directly liable as a subscriber if you have allowed another person to use a service and they have infringed…
Impact on ISPs1) receive and consider copyright infringement
reports
2) issue notifications
3) keep data
4) issue lists
5) participate in subscriber appeals inc. appeals to court and beyond
6) execute technical measures
7) deal with “blocking injunctions”
8) pay costs
Final thoughts
Was the Act really needed?
Huge costs on everyone involved
Don’t we also need a debate on fair use of copyright /duration of copyright?
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