Ofcom has published a revised version of the Digital Economy Act’s Initial Obligations Code, which provides a regime by which ISPs are required to issue “Notices of Infringement” to their customers on receipt of a complaint of copyright infringement from a rightsholder. The first draft of this code was published in May 2010 and was heavily criticised, not just on policy grounds but also for not complying with the requirements of the Act.

An annex published with the new code attempts to address some important issues that were left unclear or inappropriately dealt with under the first draft. For example, Ofcom now directly addresses the position of the provision of wi-fi access, for example in coffee shops:

• 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 subscriber, even where this agreement is oral or implicit;
• Persons making open access Wi- Fi available, where there is no payment from or agreement with those making use of them, would be subscribers;
• Operators of Wi-Fi netwo rks provided in conjunction with other goods or services to a customer, such as a coffee shop or a hotel, would be internet service providers;

There is also some further clarity for transit providers:

Where there is a wholesale and a retail provider of internet access, the wholesale provider is outside the definition of an ISP for the purposes of the DEA in that it is not providing its service to a subscriber directly but the downstream provider is likely to be within it and therefore subject to obligations if it fulfils the qualification criteria established by the Code. If the downstream provider is not directly receiving CIRs as a result of the wholesale arrangement, it will be required to ensure that it is able to process those CIRs which relate to its subscribers, possibly by entering into a contract for processing services from its wholesale access provider

Another new point is that Copyright complainants will have to submit a report on their methods for evidence gathering to Ofcom, and have it approved in advanced before being entitled to submit Copyright Infringement Reports. This attempts to addresses a criticism from Consumer Focus that the first draft Code did not comply with the Act by failing to deliver Ofcom’s duty to set out minimum standards for evidence gathering.

Ofcom has also accepted LINX’s recommendation that the Copyright Infringement Report sent by a rightholder to an ISP should also describe the means by which the evidence was gathered:

The Code now states that CIRs must include information which would enable the subscriber to identify the means used to identify the copyright work and to gather evidence obtained.

The Code now requires that all Notices of Infringement to customers shall be sent by First Class post; not by e-mail or other electronic means.

The Code has also restricted the grounds of appeal by removing the right of subscribers to appeal on any grounds they choose. Ofcom states that this is “On the instructions of Government”

This article is being updated with further analysis: please check back later!

The new draft Initial Obligations Codes includes the following changes:

• As under the first draft, ISPs who have more than 400,000 subscribers will be within the scope of the Initial Obligations Code, and everybody else will be exempt.
  • Ofcom is introducing a provision that the 400,000 threshold is calculated on the basis of all the ISPs in a Corporate Group, to cover companies with many subsidiaries.
  • If an ISP meets the threshold, but subsequently falls below it (e.g. due to customer loss, disposal of a subsidiary) it will remain within the scope of the Code for that reporting period (year) and the following one; under the first draft it was unclear whether such an ISP would drop out immediately, or even continue within scope forever.
• Rightsholders will be able to send Copyright Infringement Reports (“CIRs”) to ISPs without first making payment for processing CIRs; however ISPs will not be required to issue the corresponding Notice of Infringement (“Notices”) to customers until payment for all CIRs has been received
• Timings
  • The deadline for issuing a CIR has been raised to one month, up from ten days, from the time of the alleged infringement.
  • Similarly the time for the ISP to issue a Notice has been raised to one month, also up from ten days.
  • Ofcom is introducing a 20 day grace-period to allow subscribers the opportunity to change their behaviour (or secure their connection). Thus once a CIR has triggered a Notice, further CIRs do not give rise to additional Notices until 20 days after the date of issue of the previous Notice.
• ISP Notices to customers will all have to be sent by First Class post, instead of the first two by e-mail and the last by Recorded Delivery. This is likely overall to significantly increase the cost.
• Ofcom is introducing a deadline for appeals of 20 days after the customer receives the Notice.