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June 26, 2012

UK ‘3 strikes’ piracy measures to launch in 2014

After three copyright infringement warning letters, consumers may have their ISP account information turned over to copyright holders for criminal proceedings.

By Allan Swann

Ofcom has published its draft code for consultation, which will see internet service providers (ISPs) being forced to inform customers of copyright infringement, such as downloading video games, movies, music or other copyrighted material.

Ofcom is required to publish the code as part of its obligations under the Digital Economy Act 2010, which the Conservative Party introduced to protect creative industries. It remains controversial.

Creative Industries Minister Ed Vaizey
Creative Industries Minister Ed Vaizey

As part of Ofcom’s new draft code, which is being put out to consultation, requires ISPs to send letters to customers, at least a month apart, informing them when their account is connected to reports of suspected online copyright infringement – these letters must include the number of alleged copyright infringement reports connected to the account.

ISPs will also be required to explain the steps customers can take to find licensed content on the internet. Ofcom has said that the onus is also on copyright owners to invest further to develop attractive online services to offer their content as a paid-for alternative.

This means entertainment industry lobbies, such as the British Phonographic Industry and the Motion Picture Association will now be able to monitor file sharing networks and gather the IP addresses of those sharing copyright material.

After users receive three warning letters (or more) within 12 months, their (previously) anonymous information can then be turned over to copyright holders for prosecution under the Copyright Designs and Patent Act 1988.

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Creative Industries Minister Ed Vaizey said that the legislation was necessary to ensure that the UK’s creative industries were protected, and given room to grow.

"They have the right to charge people to access their content if they wish, whether in the physical world or on the Internet," he said.

"We are putting in place a system to educate people about copyright to ensure they know what legitimate content is and where to find it. The Digital Economy Act is an important part of protecting our creative industries against unlawful activity."

Copyright owners can already seek court orders, but the new code is designed to enable them to focus legal action on the most persistent infringers. Copyright owners will need Ofcom approval of their procedures for gathering evidence of infringement before they can be used under the scheme.

Customers retain the right to challenge any allegation of infringement through an independent appeals body (within 20 days), which will be appointed by Ofcom.

BT and Talk Talk initially went to the high court to protest these new obligations, unsuccessfully.
The Government has put secondary legislation through Parliament today that that deals with the costs of the letter system, which will largely be met by rights holders with Internet service providers paying a smaller element.

However, this new legislation also includes a £20 charge for any individual wishing to formally challenge a letter. The fee would be refunded if the appeal was successful.

"Ofcom will oversee a fair appeals process, and also ensure that rights holders’ investigations under the code are rigorous and transparent," said Claudio Pollack, Ofcom’s Consumer Group Director.

More worryingly, the Digital Economy Act also outlines further possible measures to be contemplated, including internet bandwidth reduction, blocking internet access or temporarily suspending accounts against relevant subscribers in certain circumstances.

The code will initially cover ISPs with more than 400,000 broadband-enabled fixed lines – currently BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media. Together these providers account for more than 93% of the retail broadband market in the UK.

Ofcom will now consult on the revised draft code until 26 July 2012, which can be viewed here.

After further review by the European Commission, the new code will be expected to be put in front of Parliament at the end of 2012.

ISPs and Ofcom will then be given a window to prepare for their new obligations, before the first customer notification letters start being sent in 2014.
Ofcom has said it will review the criteria for applying the code to ISPs once it has been up and running for six months.

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