LEGAL NOTES
identity of unknown defendants is by applying to the court to make an order to compel a website or ISP to identify them. The UK Government, together with copyright owners and entertainment industry lobbies, has been seeking an effective means to stop the majority of online copyright infringement. It has introduced a rather cumbersome procedure to try and help with this, under the Digital Economy Act 2010.
PROCEDURE FOR SUSPECTED ONLINE COPYRIGHT INFRINGEMENT ISPs will be required to send warning letters to their customers who have been reported to them by the copyright holders as infringing copyright. Where copyright has been infringed more than three times in twelve months, the ISPs must provide lists of these IP addresses to the copyright owners, who can then get court orders for the ISPs to identify the subscribers, and take legal action.
If the warning letters do not reduce online copyright infringement suffi ciently, further legislation will be introduced with other sanctions, although the original plans to block internet access have been abandoned.
OFCOM CODE The procedure is not yet in operation. The Ofcom Code must fi rst be in place, a legally binding code of practice to ensure that the procedure will be properly followed. The consultation periods for the revised draft Code closed in the latter half of 2012. Ofcom anticipates that the regime will come into force early in 2014.
The Code will initially cover the largest ISPs, currently BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media, who together account for more than 93% of the retail broadband market in the UK.
ISPS’ INVOLVEMENT ISPs do not approve of the legislation. They do not want to pay the costs of following the procedure, nor to risk fi nes of up to £250,000 for non-compliance. They claim that it is not their place to police the internet under EU and UK law, according to which they are generally exempt from any liability for information transmitted via their networks. The technical term is that they are acting as a ‘mere conduit’ for caching or for hosting, that is, when they are acting only as intermediaries. A number of them, including BT & TalkTalk, took court proceedings on various grounds to try and stop the law, but did not succeed.
Meanwhile copyright owners successfully used existing laws to force the major broadband providers to block access to The Pirate Bay and Newzbin2, both very popular illegal fi le sharing websites. BT, one of the providers involved, said that it did not support or condone copyright infringement, but to avoid business exposure, it required a court order in order to block a service where the defendants had been
22 December 2012 | Volume 22 – Issue 4
found in breach of copyright. It preferred this approach to the bureaucratic procedure in the Digital Economy Act. The Pirate Bay is one of the latest in a number of illegal
fi le sharing sites. It has now moved its servers to the cloud to frustrate attempts to take it offl ine, and operates from cloud- hosting providers around the world. This will make enforcement action harder. However, there is good cross-border co-operation between countries against internet piracy, and this is going to improve as more Governments and rights holders co-operate, to make it diffi cult for infringers.
COPYRIGHT BENEFITS Copyright rewards the creator, author, performer or artist for their skill and effort. It fosters investment and innovation by businesses of various kinds. Many individuals and organisations are harmed by copyright infringement. It is easy to think only of major entertainment and music businesses exploiting copyright, but there are many small businesses and individual artists who need copyright protection to fl ourish.
The paradox is that the use of copyright to support artistic
creativity through protecting innovators’ rights must be balanced against encouraging follow-on innovation in new communication technologies. There is considerable debate about the relative merits of protecting copyright owners on the one hand and the danger of restricting the development of the internet industry on the other. The law needs to be able to respond fl exibly to the changing economic and technological environment for the benefi t of both rights holders and
users.
copyright owners and entertainment industry lobbies, has been seeking an effective means to stop the majority of online copyright infringement
The UK Government, together with
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