Ofcom Posts Revised Code Detailing ISP Anti-Piracy Process

UNITED KINGDOM—Ofcom, the independent regulator in the U.K. for the communications industry, released a draft code for consultation Tuesday that explains the manner in which internet service providers are expected to interact with customers accused of online copyright infringement. The consultation process is still in the early stages. The revised draft code and consultation, which can be found here, closes on July 26. "Subject to further review by the European Commission," Ofcom adds, "it will be laid in Parliament around the end of 2012. ISPs will then prepare to meet their obligations, and Ofcom will appoint an appeals body." The first customer notification letters are expected to be sent out by early 2014. In its announcement, Ofcom noted, "The code, which Ofcom is required to publish under the Digital Economy Act 2010, includes measures to help inform the public and promote lawful access to digital content such as music and films." Generally speaking, according to Ofcom, "When notifying customers of reported infringements, ISPs must explain the steps subscribers can take to protect their networks from being used to infringe copyright and tell them where they can go to find licensed content on the internet." Specifically, the code 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. If a customer receives three letters or more within a 12-month period, anonymous information may be provided on request to copyright owners showing them which infringement reports are linked to that customer’s account. The copyright owner may then seek a court order requiring the ISP to reveal the identity of the customer, with a view to taking legal action for infringement under the Copyright Designs and Patent Act 1988." Needless to say, copyright owners already have the option to take alleged offenders to court, but Ofcom notes that "the Code is designed to enable them to focus legal action on the most persistent alleged infringers," adding that customers will have the right to challenge any allegation of infringement through an independent appeals body. "Ofcom will appoint this body and require it to establish transparent, accessible appeal procedures," the announcement states. "Copyright owners will need Ofcom approval of their procedures for gathering evidence of infringement before they can be used under the scheme." That approval from Ofcom of evidence-gathering procedures is one part of the code that was changed in the revised version posted Tuesday. The announcement included the following list of changes: • Evidence-gathering procedures: copyright owners’ procedures for gathering evidence of infringement must now be approved by Ofcom, rather than by the copyright owners themselves. Ofcom plans to sponsor the development of a publically-available standard to help promote good practice in evidence gathering; • Notification letters: ISPs must now include, in letters to subscribers, the number of copyright infringement reports connected to their account. • Appeals: Ofcom has decided that subscribers should have 20 working days to appeal an allegation of infringement. Following a direction from the government, Ofcom has removed the ability for subscribers to appeal on any grounds they choose; they must now do so on grounds specified in the Digital Economy Act. CNET UK notes that it will cost an individual accused of infringement £20 to appeal.  While the code is intended to provide a workable framework to induce non-infringing behavior in internet users, the U.K. reserves the right to enact further measures, including requiring "ISPs to take steps (such as internet bandwidth reduction, blocking internet access or temporarily suspending accounts) against relevant subscribers in certain circumstances." Such measures could only be used after the code had been in play for at least one year, "and would require further legislation and approval by Parliament. They would also require Ofcom to establish a further independent appeals process with judicial oversight." According to Claudio Pollack, Ofcom’s consumer group director, “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,” he added.