The newly approved Digital Economy Act 2010 (Act) is set to amend Intellectual Property legislation by:
- Reducing online infringement of copyright;
- Increasing to £50,000 fines for all intellectual property offences for online and offline copyright infringement;
- Providing the Secretary of State with powers to request that a court grants website blocking injunctions;
- Amending the definition of “book”, to include audio and e-books; and
- Bringing changes in regulation of internet domain registries and broadcasting.
In relation to online copyright infringement:
The Act by introducing new clauses in the Communications Act 2003:
- Imposes obligations on ISPs to notify their subscribers, if the internet protocol addresses associated with them are reported by copyright owners as infringing copyright;
- Requires ISPs to provide, on an anonymous basis, copyright infringement lists to copyright owners, for those subscribers who have exceeded the threshold of 50 notifications;
- Requires ISPs to create and implement a code of practice to address the above obligations (and also allocate related financial responsibility) and, in the event of no code of practice is set forward, allow Ofcom to make one;
- Obliges Ofcom to provide to the Secretary of State regular reports, about the infringement of copyright, by subscribers to the internet;
- In the event the above measures do not reduce the online infringement of copyright, the Secretary of State has the power to require that, ISPs adopt technical measures against certain subscribers, including limitation of internet connection, speed and suspension of the internet connection. However, the Act requires that, subscribers are also given the opportunity to appeal on certain grounds. The burden of proof of copyright infringement will fall on the copyright owner and the ISP.
In addition, an ISP may be fined up to £250,000 (which may be increased by order of the Secretary of State), in the event it breaches its obligations under the Act.
Internet Service and Website Hosting Providers will have to review their contracts and terms and conditions(with businesses and consumers), to ensure that, they are aligned with the requirements of the above Act, while still complying with all applicable Consumer and Data Protection legislation, in order to not expose themselves to potential claims of breach on their responsibilities, by their subscribers.
Digital Britain initiative aimed at maximising the benefits of digital revolution and addressing the issue of online copyright infringement. We will have to wait to see how successful the Act will be, in achieving the above. However, I cannot help, but wondering if this was not a missed opportunity to address under the Act other acts of online infringement of intellectual property. I am thinking in particular websites, through which fake or counterfeit products are sold and whether some of the measures of the Act could have been expanded, to cover them as well.
For more information on the Digital Economy Act 2010, please go on www.anassutzi/articles.html