Online Copyright Infringement

The issue...

The Digital Economy Act received Royal Assent in April 2010 and came into force in June 2010. Among its provisions were measures to curb online infringement of copyright. The Panel considers it essential to ensure that this occurs in a way that protects citizen interests and that the measures are proportionate and balanced and meet accepted standards of due process.

Our objective...

To develop a shared view and approach amongst consumer bodies to provide guidance for industry and policy makers on consumer safe-guards required in new system for reducing online copyright infringement.

Our Current Position...

Protection of the consumer interest in this context requires adherence to the following principles:

  1. Rights holders should have to provide cogent evidence of wrongdoing to the ISP before beginning the notification process, and this should be provided to the alleged infringer on notification.
    • This evidence must connect the customer to the alleged copyright infringement.
    • The systems used to collect this evidence must be independently verified by Ofcom or bodies authorised by Ofcom and meet a prescribed high standard of accuracy and reliability.
    • Evidence should not be withheld from customers and subscribers should be notified of every copyright infringement report received by the ISP in relation to their internet account.
  2. We strongly believe that customers will best be served by receiving uniform information on the nature and consequences of being included in a "copyright infringement list" of suspected repeat infringers. If different customers receive different letters from their respective ISPs, there will be legal uncertainty. It is important that letters from ISPs are clear, short and to the point. Letters from ISPs should therefore be accompanied by a standard information pack that explains the details of the notification and appeals process. This could be supported by advice and information about legal downloading services.

    Notification should be educational and positive and should meet standards for plain English. The pack should not include partisan information on the impact of online copyright infringement.

    We believe that it would be a disproportionate reaction to suppress open WiFi networks operated by individuals or organisations at this stage. Since the Act does not mandate that networks be closed, the initial obligations code and notification information should be designed to avoid such an unintended consequence.
    • The notification pack should explain clearly the implications and potential implications of being included in a "copyright infringement list", including all other possible consequences, such as prosecution. If this information is to be used in any future process this should be made clear to the customer now.
    • Notifications should explain clearly what data has been collected on a customer, how it has been collected, and how that data will be stored and used in future.
    • Notifications should explain clearly the opportunity to appeal, including the grounds on which an appeal can be made and the consequences of not appealing at this stage.
    • Notifications should explain the process involved in bringing an appeal.
    • Notifications should not advise customers to secure their Wifi. But they should provide information to customers about how they can, should they choose to do so.
    • Notifications should acknowledge that the recipient may not be personally responsible for, or even aware of, the alleged copyright infringement.
    • Notifications should explain clearly that that legal liability rests with the infringer or with the person legally responsible for the infringer.
    • Notifications should let recipients know who they can contact for advice about protecting their internet connection and for guidance on the appeals process.
    • Notifications should not contain any ambiguous or threatening language likely to cause customers undue worry.
    • The notification pack should advise the customer of an Ofcom nominated information provider that can provide further independent information and advice on the appeals process.
  3. Customers should have fair and reasonable opportunity to defend themselves against a copyright infringement report.
    • Customers should be able to defend themselves or appeal accusations on any reasonable grounds.
    • There should be at least one independent third party that can provide guidance on the appeals process and on how to gather evidence to refute an allegation.
    • The appeals body should make it as easy as possible for customers to make an appeal, if they meet any of the predefined grounds.
    • Appeals should be, quick, simple and free. Costs should not be imposed on the customer as they may cause a barrier to accessing an appeal.
    • Any customer with a case that meets any of the predefined grounds of appeal should be able to appeal a copyright infringement report without bearing any costs.
    • Customers should receive compensation if their appeal is upheld.
  4. Customers should be provided with information outside the notification and appeals process about the existence of legal providers of online content services.
    • Rights holders should do more to develop attractive, easy-to-use and affordable alternatives to online copyright infringement.
    • Rights holders should use marketing campaigns to inform customers about the existence of legal services.
  5. The appeals process, and the appeals body, should be:
    • Independent and impartial, particularly independent from ISPs and Rights holders. This is essential if the process is to enjoy legitimacy and should be reflected in a majority lay membership, including members that are completely independent of industry, security of tenure for chair and board members and budgetary independence;
    • Transparent; maintaining a website containing detailed public information including membership of appeals body, budgeting, numbers of appeals, numbers of adjudications, and nature of adjudication;
    • Expert; the appeals body should include independent membership with expertise in: (i) the value of evidence likely to be served relating to ISP logs, IP addresses and other technical matters (ii) copyright and media law relating to fair use and peer to peer networks, and freedom of expression (iii) media use, and media literacy of internet users;
    • Representative; the appeals body should, in addition, include lay consumer members similar to the model used by the Food Standards Agency and the National Health Service; and,
    • Accountable; to the general public, Parliament and Ofcom.

The Panel also has concerns about the draft initial obligations code. The Panel's view is that the final code must:

  • Be clearer about the independence of the appeals body and the large scope for discretion that it will have;
  • Tackle the existing potential for consumer confusion; and
  • Include a more developed appreciation of the commercial interests of rights holders and ISPs and the potential for conflicts of interest.

Our Impact...

By leading development of the joint principles the Panel strengthened its relationships with other consumer bodies, improved its credibility and demonstrated its independence from Ofcom.

The principles that the Panel developed, together with its ongoing advice to Ofcom on these issues, influenced the development of Ofcom's Code of Practice.

The Panel also received positive feedback from BIS on the customer protection principles, helping to shape BIS's broader thinking on the issues. In the case of the consultation on apportioning costs the Panel's input helped to ensure that the cost of appeals will not fall on consumers.

The Panel's contribution to the work with ISPs on consumer information helped to ensure that ISPs properly consider consumers when writing to tell them about alleged infringements.

Future Action to be Taken...

The Panel will continue to engage with Ofcom on the revised code for as long as it is able. The Panel recommends that those consumer groups with whom it developed the consumer principles continue to monitor this issue to ensure proper safeguards are put in place for consumers.

Relevant Links...

Response to Online Infringement of Copyright and the Digital Economy Act 2010: Draft Initial Obligations Code, July 2010 (PDF 217KB, opens in a new window)

Online copyright infringement - customer protection principles, May 2010 (PDF 180KB, opens in a new window)

Response to the Government's consultation on legislation to tackle illegal peer-to-peer file-sharing, September 2009 (PDF 177KB, opens in a new window)

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