Ofcom Releases A Revised Version Of The Initial Obligations Code

June 28, 2012 by
Filed under: Announcements & Events, File-Sharing Programs, Networks & Services, Legal P2P News & Issues 

In an attempt to improve their methods of combating piracy, UK’s communications regulator – Ofcom – has released a revised version of the Initial Obligations Code.

The code is seen as a key part of the debated and delayed Digital Economy Act (DEA). The revised version explains how and when ISPs should send warning letters to their customers. According to the IOC, the warning system will only apply to the largest internet providers. For example, one ISP must have more than 400.000 fixed line broadband connections.

Which providers fall under these requirements? Well, BT for starters, then Orange UK, O2, Sky Broadband, TalkTalk and Virgin Media.

This means that Mobile Broadband operators and Wi-Fi providers are not to be included in the Code. An explanation would be that the costs are rather high compared to the expectations of actually reducing piracy by making use of this system. However, this applies only to commercial operators, while libraries and other similar services may have to do the same as big ISPs.

The letter system is based on Copyright Infringement Reports (CIR) from copyright holders. Their goal is to inform subscribers that their accounts are used for unlawful activity. Furthermore, they will only be sent via first class mail. As for copyright owners, they’ll need Ofcom’s approval on the gathered evidence before using this system.

The letters are also to include educational information, promoting legal alternatives of digital content, while also advising on how to protect one’s network from being used for copyright infringement. Rights holders are also expected to put some money into awareness campaigns to educate the consumer about the effect of piracy and to develop attractive online services to offer their content“.

Unlike the three-strikes system, ISPs can send only one letter a month (in any given month). This is good news for internet providers as they can keep their costs at a minimum. However, if one receives 3 or more letters on a period of 12 months, the ISP is then obliged offer anonymous information to copyright owners (when they request it).

Next step is for rights holders to seek a court order which requires the ISP to identify the customer, which may lead to legal action for copyright infringement under the 1988’s Copyright Designs and Patent Act.

“These measures are designed to foster investment and innovation in the UK’s creative industries, while ensuring internet users are treated fairly and given help to access lawful content. 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.

According to Ofcom, broadband customers can challenge any allegations (within 20 days) via an independent appeals body established by the regulator, but they’ll have to pay a £20 Subscriber Appeal Fee.

However, Ofcom – instructed by UK’s Government – revoked subscribers’ rights to appeal on any grounds they want. So, if someone’s having their Wi-Fi network hacked, it’s going to be a hell of a task to prove their innocence.

The DEA also mentions account disconnection, speed restrictions and website blocking. Ofcom was not too fond to website blocking. It said that these measures will “only be considered after the Code has been in force for at least 12 months” and would need further legislation and the Parliament’s approval.

This would also require Ofcom to form an independent appeals process with judicial oversight.

“Digital revenues are going up, the music and film industry are moving in the right direction, yet this cumbersome policy is still lumbering forward. Ofcom are being asked to put lipstick on a pig with this code. The appeals are a joke.

The Government has decided that ‘I didn’t do it’ is not a defence. Some people will almost certainly end up in court having done nothing wrong,” said Jim Killock of the Open Rights Group.

“The Government is proposing that consumers must pay a £20 fee to challenge accusations of copyright infringement under the Digital Economy Act.

Copyright infringement is not to be condoned, but people who are innocent should not have to pay a fee to challenge accusations.

Consumers are innocent until proven guilty. Twenty pounds may sound like a small sum, but it could deter those living on low-incomes from challenging unfair allegations. Ultimately consumers could be subject to “technical measures”, including being cut off from the internet, and the ability to appeal is therefore critical to ensure consumers who have done nothing wrong are not deprived of essential internet access further down the line.

This fee is intended to prevent “vexatious appeals”. But this could be achieved without pricing low income consumers out of their right to appeal, by giving the Appeals Body the power to fine those who have brought frivolous appeals. However, the best way to reduce unnecessary appeals is for Ofcom to require a high standard of evidence from copyright holders, preventing thousands of notifications being sent out on the basis of flimsy evidence,” Chief Executive of Consumer Focus Mike O’Connor said.

The first notifications are expected to be sent at the beginning of 2014. Also, which ISPs should fall under the Code are to be named after the Code has been in operation for six months.

Ofcom will regularly send reports to the Government, informing on the effectiveness of the Code while also forwarding initiatives from copyright owners.

A consultation for Ofcom’s revised draft code will be open until 26th July 2012. Then it will be reviewed by the European Commission. The goal is for the Code to reach the Parliament sometime at the end of this year.

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