Digital Economy Act 2010: Copyright

The Digital Economy Act 2010 received Royal Assent at the very end of the last Parliament. Sections 3 to 18 of the Act cover online infringement of copyright. Several provisions have proved controversial and have not yet been implemented.

Section 17 grants the Secretary of State a power to bring in regulations for the blocking of infringing websites. The present Government has indicated that it does not intend to use this power. Copyright owners have brought successful court actions against infringing websites under existing laws.

The Government is proceeding with implementation of an “initial obligations code” (allowed for under section 11 of the Act). Under the proposed system, an internet service provider would send a warning letter to a customer detected downloading copyright material for free from the internet. If the infringing activity continued, two follow-up letters would be sent. Once the third letter was dispatched, the customer’s download history could be released to the owners of the copyrighted material, enabling legal action to be initiated against the infringer. However, the copyright owner would first have to gain a court order to determine the identity of the filesharer, as the download history provided would be anonymised. Customers thus accused would be able to file an appeal for £20, which would be refunded if the appeal were successful.

The proposed notification system has survived the challenge of a judicial review instigated by BT and TalkTalk. Ofcom has conducted public consultations on the draft code and on the allocation of costs for administering the regime. On current plans and subject to parliamentary approval, the first customer notification letters would be sent in late 2015.

The Act also envisaged further measures which might be taken against infringers such as blocking their internet access or temporarily suspending their accounts. Such measures could only be considered after the Code has been in force for at least 12 months, and would require further legislation and approval by Parliament