The Digital Economy Act:

Uncertainty &

Disappointment

Janice McFarlaneHead of Partnerships &

Professional AdvisorNational Library of Scotland

E-Books Conference21 October 2010.

Outline

• From Bill to Act• What was lost?• What remains?• Online infringement provisions• The initial obligations code• Where are we now?

The Bill’s (RAPID) Progress through Parliament

House of Lords• 1st reading 19 Nov 2009-no

debate (HL Bill 1)• 2nd reading 2 Dec 2009• Committee stage: Whole

House-no written evidence allowed: 7 sittings: 6 Jan-8 Feb 2010

• HL Bill 32: 9 Feb 2010• Report stage: 3 sittings: 1-8

Mar 2010. HL Bill 44• 3rd reading: 15 Mar

House of Commons• 1st reading 16 Mar-no debate

(Bill 89)• 2nd reading 6 Apr • Committee stage: only one

sitting: no written evidence allowed.: 7 Apr.

• 3rd reading: 7 Apr• Returned to Lords for

consideration of amendments: 8 Apr

• Royal Assent (2010 c.24) 8 April 2010.

HL BILL 1: 2009/10

• 44 clauses covering 11 topics• Cl. 4-17: Online infringement of copyright

– Cl.17: Power to amend copyright provisions

• Cl. 42-3: Licensing of copyright and performers’ rights– Orphan Works– Extended licensing schemes– Increased penalties for criminal infringement of copyright

• Cl. 44: Public lending right• Other topics related to OFCOM, broadcasting, digital

radio, internet domain registries, etc etc.

What was lost?

• Cl.17: Future changes to CDPA– replaced by provision for ‘injunctions preventing access to

locations on the internet (Act cl.17) and– new cl.18 on consultation and parliamentary scrutiny.

• Cl.42: Orphan works & extended licensing– Thrown out in the ‘wash-up’– Too controversial– Extensive lobbying by photographers and others– Falling back on EU developments

What remains?

• Increase in penalties for criminal liability (Act s.42)– But most individual cases are dealt with under civil

law– Designed to catch ‘professional’ producers of

pirate copies• Extension of PLR (Act s.43)

– Requires Statutory Instrument to bring in to force• Online infringement of copyright (Act s.3-18)

– With some amendments and clarifications

Online infringement-Aims of the Act

• To reduce online copyright infringement, particularly by P2P file sharing, by minimum of 70%.

• 2-stage approach:• Stage 1: implementation of Copyright

Infringement Reports (CIRs) process + education and development of new legal routes to online material.

• Stage 2 (if target not met within 12 months): introduction of ‘technical measures’ by ISPs against persistent offenders.

The Act-in more detail: 1

• Copyright owner may make a CIR to ISP with details and evidence of an apparent infringement, within 1 month of gathering evidence.

• ISP must notify subscriber within 1 month of receipt of CIR with details of alleged infringement, plus information on copyright legislation and lawful access, and the appeals process.

• ISPs must provide rights owners, on application, with anonymous list of ‘relevant’ subscribers who have reached threshold number of notifications.

• Court order required to obtain identity of subscriber.• ISPs face fine of up to £250K for contravention.

The Act-in more detail: 2• Costs of new procedures to be shared between rights owners

and ISPs (and subscriber re appeals costs)• New arrangements do not prevent rights owners taking legal

action against infringing subscribers.• Thresholds and other limits will be defined in an ‘Initial

obligations code’ to be produced by Ofcom or the industry (with Ofcom approval).

• Code will require parliamentary and EU approval before implementation.

• Ofcom to report to Sec of State on impact of new procedures before any move towards introduction of technical measures (quarterly & annual reports).

• A separate code, approved by Parliament, will be required before technical measures can be implemented.

Ofcom Initial Obligations Code-1• Consultation on draft code:28 May-30 July 2010• ‘…covers … the provisioning and handling of …

[CIRs]. … propose which ISPs should initially participate in the code, the process they should use to notify subscribers alleged to have infringed copyright and the threshold for including subscribers on a …[CIL].’

• Quality assurance report re evidence gathering process

• Basic information re subscriber appeals process• Templates for notification letters.

Ofcom Initial Obligations Code-2

• Qualifying Copyright Owner must provide estimate of number of CIRs it intends to make to a Qualifying ISP in notification period + meet obligations re sharing of costs.

• Qualifying ISPs-initially limited to ‘fixed’ access services with more than 400K subscribers.

• Timeframes shortened for sending CIRs to ISPs and notifications to subscribers (10 working days instead of 1 mnth)

• Threshold of 3 notifications within 12 months to subscriber before they can be placed on CIL (a ‘relevant subscriber’).

• Minimum of 1 month between each notification.

Why are libraries concerned?

• Are we ISPs? (‘a person who provides an internet access service’)– If ‘yes’: cost implications of setting up systems to cope with

CIRs, CILs etc

• Are we subscribers? (a person ‘ who receives the service under an agreement between the person and ..[an ISP]; and does not receive it as a communications provider’)– If ‘yes’: potential impact of technical measures on internet

and wifi provision; potential costs of appeals.

Where are we now?

• Initial timetable saw Code in place by December 2010– But

• Delays in consultation process– BIS on cost-sharing. Late response. – Ofcom Initial Obligations Code-still waiting for government

response– Ofcom: Enforcement of the Code and handling of industry disputes.

Should have been published July.– Ofcom: Tariff setting. Due September, dependent on BIS progress.

• Deadline for Initial Code delayed by 3 months• Earliest ‘technical measures’ code: mid-late 2012.• Still no clarity re status of libraries under the Initial Code.• Further clarity unlikely until technical measures code drafted.