Digital Economy Act 2010

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Digital Economy Act 2010

Long title An Act to make provision about the functions of the Office of Communications; to make provision about the online infringement of copyright and about penalties for infringement of copyright and performers’ rights; to make provision about internet domain registries; to make provision about the functions of the Channel Four Television Corporation; to make provision about the regulation of television and radio services; to make provision about the regulation of the use of the electromagnetic spectrum; to amend the Video Recordings Act 1984; to make provision about public lending right in relation to electronic publications; and for connected purposes.
Chapter 2010 c 24
Introduced by Lord Mandelson
Territorial extent England and Wales, Scotland and Northern Ireland
Dates
Royal Assent 8 April 2010 (2010-04-08)
Commencement
  • 8 April 2010 (2010-04-08) (part)
  • 8 June 2010 (2010-06-08) (part)
  • pending (part)
Other legislation
Related legislation Communications Act 2003, Copyright, Designs and Patents Act 1988, Video Recordings Act 1984
Status: Current legislation
Text of statute as originally enacted
Official text of the Digital Economy Act 2010 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database

The Digital Economy Act 2010 (c. 24) is an Act of the Parliament of the United Kingdom. The act addresses media policy issues related to digital media, including copyright infringement, Internet domain names, Channel 4 media content, local radio and video games. Introduced to Parliament by Lord Mandelson on 20 November 2009, it received Royal Assent on April 8, 2010. It came into force two months later, with some exceptions: several sections - 5, 6, 7, 15, 16(1)and 30 to 32 - came into force immediately, whilst others required a Statutory Instrument before they would come into force.[1]

The most controversial part of the Digital Economy Act is that which addresses copyright infringement, and in this regard, it has been challenged in the High Court under a judicial review. Sections 17 and 18 were reviewed by Ofcom and have since been repealed.

Online infringement of copyright provisions[edit]

Section 3 to 16[edit]

As above, the copyright infringement provisions were controversial.[2] These provisions establish a system of notifications to Internet subscribers who are alleged to have downloaded infringing content over peer-to-peer file-sharing systems. The objective was to provide evidence that copyright holders could use in court action against subscribers who repeatedly infringed. A second element of the provisions comprises the ‘technical measures’, where a sanction would be applied directly via a subscriber's Internet provider.

Under DEA Section 3 the allegations are to be transmitted to the Internet Service Providers (ISPs) by the copyright holders. The ISPs are then under an obligation to transmit notifications to their subscribers, informing them of the allegation. DEA Section 4 mandates the ISPs to keep a list of those subscribers who are repeat offenders ("copyright infringement list" ). The list should comprise those subscribers who have reached the a pre-determined threshold in terms of the number of infringemments committeed, and the data should be anonymous. The aim is that copyright holders can identify the subscribers against whom they want to take action, and may obtain a court order to get the personal details from the ISPs.

Initial obligations code[edit]

The act does not specify the implementation detail for the measures. Instead, provides for the implementation to be drafted by Ofcom, in an Initial Obligations Code. Section 5 and Section 6 establish the process for Ofcom to write the code. Section 7 establishes in a very broad way what the code should contain, but leaves all the detail for Ofcom. The code must be approved by Parliament under the annulment procedure before it can come into force.

The decision to use the code of practice instead of specifying the measures in full within the text of the act has itself formed part of the controversy surrounding the measures. For example, the act did not specify the standard of evidence required. It also did not specify the threshold - number of infringements - for entry onto the copyright infringement list.

On May 28, 2010, Ofcom published a draft initial obligations code for consultation.[3] In June 2012, it issued a second consultation document [4]

Obligations to limit Internet access (technical measures)[edit]

After the Initial Obligations Code has been in force for one year, the act provides for a second set of measures to be brought in. The technical measures specified in the act Section 9 are the restriction or limitation of the speed of the broadband connection, restricting access to particular material online, and suspension (disconnection) of the service. The most controversial of them however, was disconnection of the subscriber for a period of time. It would function as an alternative to taking people to court, and in effect an extra-judicial process. Technical measures are to be brought in under another code, known as the code about obligations to limit Internet access Section 11 and Section 12. This Code would be subject to the super-affirmative procedure in the British Parliament.

Appeals[edit]

Section 13 of the act requires the provision of an independent appeals process, so that subscribers who wish to do so, may challenge a notification or (when implemented) a technical measure. Ofcom is required to set up an appeals body. This body will be an administrative body, independent of copyright holders and ISPs. Cases will not be heard in person. If technical measures are implemented, there will be a right to appeal to a First Tier Tribunal.

Obligations on ISPs and copyright holders[edit]

The act amends the Communications Act 2003. In this context, it places obligations on the ISP to apply both of the codes, and it gives Ofcom the responsibility of enforcing those obligations. Ofcom has the power to fine the ISPs up to £250,000 if they fail to meet those oblitations. Section 14

The act also provides for the cost allocation to be determined by a further statutory instrument. Section 15. To date, two draft statutory instruments have been laid before Parliament but neither has been passed into law.

Blocking Internet locations[edit]

This section of the act has been repealed.

Section 17 and 18 would have allowed copyright holders to apply to a court to obtain website blocking injunctions where "a substantial amount of material has been, is being or is likely to be made available in infringement of copyright", or where a location "facilitates" such behaviour. In deciding whether to grant an injunction, the court would have been required to consider:

  • Steps taken by the operator of the location to prevent infringement
  • Steps taken by the copyright owner to facilitate lawful access to the material
  • Any representations made by a Minister of the Crown
  • Whether the injunction would be likely to have a disproportionate effect on any person’s legitimate interests
  • The importance of freedom of expression

Sections 17 and 18 would have had to be brought into force by a statutory instrument. However, following a review by Ofcom, [5] they were repealed on the basis that copyright holders already had the ability to use Section 97 of the Copyright, Designs and Patents Act to take court action against websites.

Other provisions[edit]

Other provisions in the act include

Legislative process[edit]

The Digital Economy Act followed the Digital Britain report of 2009,[9] a policy document which outlined the United Kingdom Government's strategic vision for its digital economy. Lord Carter, Digital Britain minister, spent eight months considering the matter before releasing his final report in June 2009. The Digital Economy Bill was announced in the Queen's Speech on 18 November 2009 to the United Kingdom parliament.[10] The bill went through three readings in the House of Lords, before being presented to the House of Commons for its first reading on March 16, 2010.[11]

Wash-up[edit]

The general election was called on April 6, 2010, which meant that the Digital Economy Act was running out of Parliamentary time, as Parliament was dissolved on 8 April. The Digital Economy Bill went into what is called wash-up.[12] The wash-up is an accelerated parliamentary process used after general elections have been called to rush unopposed legislation through parliament before dissolution. This meant it was not debated at length in the Commons. The bill received its second reading in the House of Commons on the April 6, 2010. There was support for the bill from both the governing Labour party and the opposition Conservatives.[13] It passed third reading on April 7,[14] with Royal Assent granted on April 8. The Act is in force although none of the sections relating to online piracy (ss.3-18) have been implemented.

In return for supporting the Digital Economy Bill in the final wash-up vote the Conservatives demanded the removal of Clause 43 which related to orphan works, copyrighted works for which the copyright owner cannot be located, which had been criticised by photographers. Other clauses that were removed during wash-up included provisions for the funding of regional news consortia.[15]

Politics[edit]

Opposition to the bill[edit]

The provisions relating to copyright infringement and especially technical measures were highly controversial and were criticised by digital rights campaigners. The Open Rights Group, privacy and digital rights organisation, took their concerns to the House of Lords. [16] Concerns were been raised about the impact on businesses offering Internet access to their customers, such as libraries and universities.[17] Jim Killock, executive director of the Open Rights Group called the bill "an utter disgrace. This is an attack on everyone's right to communicate, work and gain an education". He said that "politicians have shown themselves to be incompetent and completely out of touch with an entire generation's values".[15]

38 Degrees, who worked with the Open Rights Group to mobilise opposition to the act, state that over 22,000 people have emailed their MPs through their web site. 38 Degrees have also raised over £20,000 in donations to fund newspaper ads against the bill.[18] More than 35,000 people signed a Number 10 petition,[19] started by Andrew Heaney at ISP TalkTalk, objecting to being disconnected without fair trial. Over 100 people protested outside Parliament on 24 March 2010, including Labour MPs Tom Watson and John Grogan, Liberal Democrat prospective parliamentary candidate Bridget Fox, and writer and activist Cory Doctorow.[20][21]

TalkTalk, Britain's second-largest ISP, has been a vociferous critic of the act. They opposed it from its earliest stages by staging media events,[22] declaring that they would fight against the new laws in court, and commissioning research to demonstrate that music fans would simply transition to other, non-P2P tools (such as "applications which scan thousands of internet radio stations and download the desired tracks").[23] TalkTalk have also argued that the requirement in Ofcom's draft code of conduct that only ISPs with 400,000 customers or more would initially be subject to the Act "could [lead to] huge swathes of customers moving to smaller ISPs to avoid detection". BT said that they felt compelled to act "for our customers who otherwise run the risk of being treated unfairly".[citation needed]

The Pirate Party UK were strongly opposed to it.[24] The Green Party, whose Members of the European Parliament (MEPs) sit with the two Swedish Pirate Party MEPs in the same group, opposed the bill. "The Digital Economy Bill is deeply flawed and illiberal...Any Green MPs will provide a rallying point for opposition to the Digital Economy Bill."[25] The Liberal Democrats opposed the parts that relate to the blocking of people's Internet connections.[26] These parts were later dropped by the Conservative and Liberal Democrat coalition Government (see below).[27]

Industry lobbying[edit]

The Secretary of State Lord Mandelson was widely believed to be responsible for the copyright infringement provisions that would see the disconnection of internet subscribers.In August 2009 Lord Mandelson was accused of caving in to a "big lobbying operation" after ordering for disconnection to be included in the Digital Economy Bill even though the Digital Britain report had rejected this type of punishment. [28] The Independent reported that according their Whitehall sources Lord Mandelson was persuaded that tough law were needed to reduce online copyright infringement following an intensive lobbying campaign by influential people in the music and film industry.[29]

It was also reported that there had been a meeting with DreamWorks co-founder David Geffen at the Rothschild family villa on the Greek island of Corfu. Lord Mandelson's spokesperson claimed that there had been no discussion of internet piracy during the Corfu dinner and suggested that the decision to reverse Lord Carter's findings had been taken in late July before the trip.[30] The Times reported after the Corfu meeting that an unnamed Whitehall source had confirmed that before this trip, Mandelson had shown little personal interest in the Digital Britain agenda, which has been ongoing for several years. According to The Times, Mandelson returned from holiday and effectively issued an edict that the regulation needs to be tougher.[31] At the time Mandelson denied that the two events were linked.[30]

In August 2011 a Freedom of Information (FOI) request showed that Lord Mandelson had decided to approve the inclusion of technical measures, such as the disconnection of internet access, some time before public consultation had finished. Letters from Lord Mandelson's office document talks with Lucian Grainge, CEO of Universal Music Group on the July 2, 2009, and that on the following day Lord Mandelson advised Lord Carter about the "possibility of [the Secretary of State] having a power to direct Ofcom to go directly to introduce technical measures". The government made an announcement that disconnection, was being considered for inclusion in the Digital Economy Bill on 25 August 2009.[32][33]

Support for the bill[edit]

The Design and Artists Copyright Society and the British Association of Picture Libraries and Agencies support the orphan works provision.[34] The Community Media Association supports the Act for the radio clauses stated to bring significant benefits to the community broadcasting sector as FM spectrum becomes available following digital radio switchover.[35] Attitudes of Internet Service Providers (ISPs) towards the copyright infringement provisions in the bill were mixed. In interviews with ISPs by TechRadar, Virgin Media said that they shared the commitment to address copyright infringement, but that persuasion not coercion is the key; a heavy-handed, punitive regime would simply alienate Internet users. Sky, which is both an ISP and a content provider, was supportive of the government's commitment to underpin the fight against illegal file sharing through legislation, but not directly of the "website banning" proposal.[36][37]

Post-legislative developments[edit]

Judicial review[edit]

On July 8, 2010, TalkTalk were joined by BT, Britain's biggest ISP, in seeking a judicial review of the Act on the grounds of it receiving "insufficient scrutiny" and having the potential to "harm citizens and impact both businesses".[38] They questioned whether the provisions were proportionate, respected privacy law, complied with EU law on ISP liability, and suggested that they would hinder a single European market in telecommunications services.[39]

The High Court of Justice granted the review permission on 10 November 2010.[40] Mr Justice Kenneth Parker ruled in favour of the government on 20 April 2011.[41] BT and TalkTalk appealed the ruling, however their appeal was dismissed [42]

Select committee inquiry[edit]

On November 10, 2010, the same day as the judicial review, the Culture, Media and Sport Committee of Parliament announced an inquiry into the act. The inquiry will consider "the implementation, practicality and likely effectiveness of the relevant measures contained in the act", and "the scope for additional and new approaches to ensure that original work is appropriately rewarded in online".[43]

Ofcom review of sections 17 and 18[edit]

Following calls by citizens to repeal all or part of the Digital Economy Act on the Your Freedom website,[44] the government asked Ofcom in February 2011 to review whether sections 17 and 18 of the act on website blocking are technically workable.[45]

Following the review by Ofcom, the government announced on August 3, 2011, that sections 17 and 18 of the act were to be dropped as they were not practically enforceable, and also as the Copyright, Designs and Patents Act 1988 had been successfully used to block access to a website on the grounds of copyright infringement.[27][46]

Cost of implementation[edit]

In response to a Freedom of Information (FOI) request Ofcom disclosed that it had spent £1.8 million in the 2011/12 financial year on the implementation of the online copyright infringement provisions, section 3 to 16 of the Digital Economy Act, and the site blocking provisions, section 17 and 18. Ofcom planned to spend another £4.0 million in 2012/13. These figures include £100,000 spent on reviewing the technical workability of section 17 and 18, a review commissioned by the Government in February 2011. According to Ofcom the Digital Economy Act provides that internet service providers and copyright owners bear the cost of section 3 to 16, including the cost to Ofcom and an appeals body. They are also liable to pay Ofcom's cost incurred prior to actual implementation. However, Ofcom notes that the April 2011 ruling by the High Court on the judicial review of the online copyright infringement provisions provides that internet service providers are not liable to pay towards Ofcom' cost or that of an appeals body.[47]

Academic analysis and reference sources[edit]

See also[edit]

Related international law[edit]

External links[edit]

References[edit]

  1. ^ "Digital Economy Act, section 16: Commencement". UK Government. Retrieved 15 July 2010. 
  2. ^ "Digital Economy Bill on The Guardian". London: The Guardian. Retrieved 2 July 2010. 
  3. ^ [1]
  4. ^ "Online Infringement of Copyright and the Digital Economy Act 2010 Notice of Ofcom’s proposal to make by order a code for regulating the initial obligations". 28 May 2012. 
  5. ^ "Ofcom to review aspects of the Digital Economy Act". February 1, 2011. 
  6. ^ "Digital Economy Act, section 40: Classification of video games etc". UK Government. Retrieved 26 June 2012. 
  7. ^ Paine, Andre (2010-02-10). "Race Against Time For U.K. Digital Bill". Billboard. Retrieved 2010-03-14. 
  8. ^ Barnett, Emma (2009-11-20). "Digital Economy Bill: No date for radio digital switchover". London: The Telegraph. Retrieved 2010-03-14. 
  9. ^ Digital Britain final report
  10. ^ Template:Http://www.publications.parliament.uk/pa/ld200910/ldhansrd/text/91118-0001.htm
  11. ^ http://services.parliament.uk/bills/2009-10/digitaleconomy.html
  12. ^ A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms ZedBooks, pp248-265, uses Hansard to put together an account of the wash-up
  13. ^ Mark Sweney, Digital economy bill gets reluctant Conservative support in The Guardian, 6 April 2010
  14. ^ Arthur, Charles (2010-04-07). "Digital Economy bill: liveblogging the crucial third reading". The Guardian (London). 
  15. ^ a b "Digital Economy Bill Passed by House of Commons". Out-Law Prinsent Masons. 8 April 2010. Retrieved 8 May 2011. 
  16. ^ "ORG briefing to the house of Lords". 
  17. ^ David Meyer (February 26, 2010). "Open Wi-Fi 'outlawed' by Digital Economy Bill". ZDNet UK. 
  18. ^ http://blog.38degrees.org.uk
  19. ^ http://www.dontdisconnect.us
  20. ^ http://www.eweekeurope.co.uk/news/uk-digital-bill-enters-wash-up-despite-protest-6089. Almost 35,000 people have signed a petition calling for the Bill's disconnection provisions to be dropped.
  21. ^ http://www.metro.co.uk/tech/819096-web-blocking-bill-set-to-become-law-without-full-debate
  22. ^ "ISP in file-sharing wi-fi theft". BBC News Online. October 16, 2009. 
  23. ^ "Music fans will sidestep filesharing clampdown says TalkTalk". TalkTalk Group. March 15, 2010. 
  24. ^ Philip Hunt (April 9, 2010). "The Digital Economy Bill has passed". Pirate Party UK. 
  25. ^ "Elect Green MPs to fight the Digital Economy Bill". Green Party UK. April 19, 2010. 
  26. ^ Jeffery, Simon (2010-04-16). "Repeal the digital economy act – Nick Clegg". The Guardian (London). 
  27. ^ a b "Government drops website blocking". BBC News. 3 August 2011. Retrieved 14 November 2011. 
  28. ^ Coates, Sam (August 26, 2009). "Families could lose broadband access as Mandelson takes on web pirates". London: DailyMail.co.uk. Retrieved 21 April 2011. 
  29. ^ "The Net closes in on internet piracy – News, Music". London: The Independent. 16 August 2009. Retrieved 25 November 2009. 
  30. ^ a b Daniel Martin (17 August 2009). "Mandelson launches crackdown on file sharing... just days after meeting with record producer | Mail Online". London: DailyMail.co.uk. Retrieved 25 November 2009. 
  31. ^ Oliver, Jonathan (16 August 2009). "Mandelson targets web pirates after dinner with mogul". London: The Times Online. Retrieved 6 January 2009. 
  32. ^ Wilson, Dean (1 August 2011). "Documents show the Digital Economy Act was a done deal all along". The Inquirer. Retrieved 14 August 2011. 
  33. ^ A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms ZedBooks, pp196-210, on Lord Mandelson's reversal on internet disconnection and analysis of the FOI responses
  34. ^ DACS
  35. ^ Digital Economy Bill Benefits Community Radio
  36. ^ TechRadar interviews with Virgin Media, TalkTalk, Sky
  37. ^ Sky: Everyone must tackle filesharing cable.co.uk, September 30, 2009.
  38. ^ "BT and TalkTalk in legal challenge to Digital Economy Act". BT Group. 8 July 2010. 
  39. ^ "Statement of facts and grounds". TalkTalk Group. 8 July 2010. 
  40. ^ "Digital Economy Act to be reviewed by courts and Parliament". Out-Law.com Prinsent Masons. 10 November 2010. Retrieved 12 November 2010. 
  41. ^ "Digital Economy Act judicial review". Department for Culture Media and Sport. 20 April 2011. Retrieved 16 November 2011. 
  42. ^ Case No: C1/2011/1437, Royal Courts of Justice, Judgement of 6 March 2012
  43. ^ "Committee launches a new inquiry into the Protection of Intellectual Property Rights Online". Parliament of the United Kingdom. 10 November 2010. Retrieved 5 January 2011. 
  44. ^ "Repeal Digital Economy Act". Your Freedom. HM Government. Archived from the original on 24 August 2010. Retrieved 16 November 2011. 
  45. ^ "Ofcom to review aspects of Digital Economy Act". Department for culture, media and sports. 1 February 2011. Retrieved 8 May 2011. 
  46. ^ "Twentieth Century Fox Film Corp & Others v British Telecommunications". Judiciary of England and Wales. Retrieved 16 November 2011. 
  47. ^ Halliday, Josh (17 June 2010). "Digital Economy Act will cost nearly £6 million". London: Guardian.co.uk. Retrieved 19 June 2011.