Digital Economy Act 2010

8/8/2019 Digital Economy Act 2010

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8.8.0.2.61 Status: Law In Force

Digital Economy Act 2010 c. 24

OFCOM reports

This version in force from: June 8, 2010 to present

(version 1 of 1)

1 OFCOM reports on infrastructure, internet domain names etc

(1) In Chapter 1 of Part 2 of the Communications Act 2003 (electroniccommunications networks and services), after section 134 insert

Reports on infrastructure etc

134A OFCOM reports on infrastructure etc

(1) OFCOM must prepare reports in accordance with subsections (2) and (3)and each report must deal with

(a) the electronic communications networks matters listed in section134B(1), and

(b) the electronic communications services matters listed in section134B(2).

(2) The first report must

(a) relate to the position on a day specified in the report which fallswithin the period of 12 months beginning with the day on which thissection comes into force, and

(b) be sent to the Secretary of State by OFCOM not more than 2 monthsafter the specified day.

(3) A further report must

(a) be prepared for each relevant period, and

(b) be sent to the Secretary of State by OFCOM as soon as practicableafter the end of the relevant period.

(4) Relevant period means

(a) the period of 3 years beginning with the day specified in the first

report, and(b) each subsequent period of 3 years beginning with the end of theprevious period.

(5) Where there is a significant change in connection with a matter listed insection 134B(1) or (2) and OFCOM consider that the change should bebrought to the attention of the Secretary of State, OFCOM must
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(a) prepare a report on the change, and

(b) send it to the Secretary of State as soon as practicable. (6) For thepurposes of subsection (5), a change is significant if OFCOM consider that ithas, or is likely to have, a significant adverse impact on

(a) persons carrying on business in the United Kingdom or a part of theUnited Kingdom, or

(b) the general public in the United Kingdom or a part of the UnitedKingdom.

(7) OFCOM must publish every report under this section

(a) as soon as practicable after they send it to the Secretary of State,and

(b) in such manner as they consider appropriate for bringing it to theattention of persons who, in their opinion, are likely to have an interestin it.

(8) OFCOM may exclude information from a report when it is published undersubsection (7) if they consider that it is information that they could refuse todisclose in response to a request under the Freedom of Information Act2000.

134B Networks and services matters

(1) For the purposes of section 134A, the electronic communicationsnetworks matters are

(a) the different types of electronic communications network provided inthe United Kingdom ( UK networks ),

(b) the geographic coverage of the different UK networks,

(c) the proportion of the population covered by the different UKnetworks,

(d) the extent to which UK networks share infrastructure,

(e) the capacity of the different UK networks,

(f) the extent to which the providers of the different UK networks allowother communications providers to use their networks to provideservices,

(g) the amount of time for which the different UK networks are and arenot available, including the steps that have been or are to be taken tomaintain or improve the level of availability,

(h) the preparations made by providers of UK networks for responding toan emergency, including preparations for restoring normal operation of UK networks disrupted by the emergency, and

(i) the standard of the different UK networks in comparison withelectronic communications networks provided in a range of othercountries, having regard, in particular, to their coverage and capacity.


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(2) For the purposes of section 134A, the electronic communications servicesmatters are

(a) the use of the electromagnetic spectrum for wireless telegraphy inthe United Kingdom, (b) the different types of electronic communicationsservice provided in the United Kingdom ( UK services ),

(c) the geographic coverage of the different UK services,

(d) the proportion of the population covered by the different UK services,

(e) the amount of time for which the different UK services are and arenot available, including the steps that have been or are to be taken tomaintain or improve the level of availability,

(f) the preparations made by providers of UK services for responding toan emergency, including preparations for restoring normal operation of UK services disrupted by the emergency, and

(g) the standard of the different UK services in comparison withelectronic communications services provided in a range of othercountries.

(3) The preparations referred to in subsections (1)(h) and (2)(f) include

(a) the steps taken to assess the risks of different types of emergencyoccurring,

(b) the steps taken to reduce or remove those risks, and

(c) the testing of proposed responses to different types of emergency.

(4) In a report under section 134A, OFCOM are required to include onlyinformation about, and analysis of, such networks, services and providers asthey consider appropriate.

(5) In this section emergency means an event or situation that seriouslydisrupts a UK network or UK service.

Reports on internet domain names

134C OFCOM reports on internet domain names

(1) OFCOM must, if requested to do so by the Secretary of State

(a) prepare a report on matters specified by the Secretary of Staterelating to internet domain names, and

(b) send the report to the Secretary of State as soon as practicable.

(2) The specified matters may, in particular, include matters relating to

(a) the allocation and registration of internet domain names, and

(b) the misuse of internet domain names.


(a) as soon as practicable after they send it to the Secretary of State,and (b) in such manner as they consider appropriate for bringing it to the


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A comparison between UK networks and services and equivalentnetworks and services provided in a range of other countries.

28. Additionally, in relation to UK networks, the reports will coverinfrastructure sharing (for example, where two or more mobile operatorspool their network of masts and both offer services across them), capacity(the amount of data that networks and parts of networks are able to carryand the rate at which they can carry it) and wholesale arrangements (theextent to which one operator can buy capacity on another operator snetwork and then sell it on to retail customers). In relation to services, theywill also cover the use of the electromagnetic spectrum.

29. The clause also inserts a new section 134C into the 2003 Act whichrequires OFCOM to report on matters specified by the Secretary of Staterelating to internet domain names when requested to do so. These mattersmight include the management and distribution of internet domain names byregistries and the misuse of domain names or the use of unfair practices byregistries, end-users of domain names or their agents (known as registrars).

30. The reporting duty would, for example, enable the Secretary of State toask OFCOM to report on the activities of internet domain registries based inthe UK (and their registrars and end-users) in circumstances where theSecretary of State believes that the operation of those registries (or theactivities of their registrars or end users) could adversely affect, or hasalready adversely affected, the reputation or operation of the UK s interneteconomy and/or the interests of consumers or the public in the UK. OFCOMare required to publish these reports.

31. In addition, the clause amends section 135 of the 2003 Act to enableOFCOM to use their existing information gathering powers to require

communications providers and others to supply the information which theywill need to write their reports. Those powers are subject to the restrictionsin section 137 on the imposition of information requirements, which means,in particular, that a demand for information must be proportionate to the usefor which the information is to be put. Penalties for contravention of theinformation requirements may be imposed under section 139 .

Pepper v Hart Note (see General Note: Pepper v Hart ): In Committee on the Billfor this Act in the House of Lords the Parliamentary Under-Secretary of State,Department for Environment, Food and Rural Affairs (Lord Davies of Oldham) said asfollows:

The matters to be covered in the reports are already outlined insubsections (1)(a) and (1)(b), but I want to make clear beyond doubt thatthose specific network and service matters are to be covered in the initialand subsequent biennial reports, to which we have just referred. I amgrateful to the noble Lord, Lord Lucas, for his suggested amendment. Ithelpfully drew to our attention the fact that, as drafted, there was indeedambiguity as to whether each report would cover all the matters insubsections (1)(a) and 1(b). However, we have difficulties with theamendment. I would like to have stood at the Box and accepted it. I am surethat that would have pleased him as much is me. However, his amendment
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clarified the situation only in respect of the initial report, and we feel that it isnecessary to make the clarification in respect of all subsequent reports aswell.

I might add that while we were looking at the drafting of the clause, webecame aware that, as originally drafted, new Section 134A requiressubsequent reports to relate to a relevant period , but does not expresslyrequire there to be a subsequent period for each relevant period. In theory,that could allow gaps to occur in the provision of reports. Because of thatpossible anomaly, we have tabled the two amendments and trust that theywill provide clarity on the extent of each report and that there must be areport every two years. I am extremely grateful to the noble Lord, LordLucas, for having already improved the Bill-or at least having obliged theGovernment to make the necessary improvements. ( Hansard, HL Vol.716, HYPERLINK"http://www.publications.parliament.uk/pa/ld200910/ldhansrd/text/100106-0008.htm"col.187 (January 6, 2010) .)

Pepper v Hart Note (see General Note: Pepper v Hart ): In Committee on the Billfor this Act in the House of Lords the Minister for Postal Affairs and EmploymentRelations (Lord Young of Norwood Green) said as follows:

My Lords, Clause 2 amends the Communications Act by inserting newsections requiring Ofcom to report to the Secretary of State at regularintervals on the UK s communications infrastructure and services. One suchreport is where there is a significant change in connection with the matterslisted in new Section 134B(1) or (2) . It requires that, should Ofcom becomeaware of a marked change which has a significant impact on business or thepublic in any of the reporting areas and which it considers should be broughtto the attention of the Secretary of State, it should write a further report assoon as practicable. We have not been prescriptive as to when these reports

will be prepared. This will ensure that, if there are developing problems orconstraints on the UK s infrastructure, the Government will get advancewarning of this from the regulator and, as appropriate, will be able toconsider whether any action is needed.

Your Lordships will no doubt appreciate that the persons or organisationsfrom which information will be gathered are likely to be very sensitive todisclosure, since much of the information will be commercially confidential,as the noble Lord, Lord Howard, recognised. Disclosure could prejudicenetwork security issues, for example. Because of commercial confidentiality,we believe that the information that Ofcom would obtain will be exemptunder Section 44 of the Freedom of Information Act . This is because it is

information relating to a particular business, which is subject to theprohibitions in Section 393 of the Communications Act 2003 .

For the reasons stated, we do not believe that these reports should bemade available to the public. However, I assure the noble Lord that wepropose to publish an account of the broad information on the overall stateof health of the UK s communications infrastructure, detailed in both theinitial and biennial reports. I mentioned earlier that it is our intention to setout in a note for your Lordships how we expect this reporting process to work
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in practice in a number of areas. I will ensure that that note includes ourexpectation that the conclusions of these reports will be made publicwherever possible. ( Hansard, HL Vol.716 , HYPERLINK "http://www.publications.parliament.uk/pa/ld200910/ldhansrd/text/100106-0009.htm"col.196 (January 6, 2010) .)

2010 Sweet & Maxwell

Status: Law In Force


OFCOM reports


(version 1 of 1)

2 OFCOM reports on media content

After section 264 of the Communications Act 2003 insert

264A OFCOM reports: wider review and reportingobligations

(1) When carrying out a review under section 264 for a period, OFCOM mustalso carry out a review of the extent to which material included in mediaservices during that period (taken together over the period as a whole)contributed towards the fulfilment of the public service objectives.

(2) Every report under section 264 must

(a) include a report on the matters found on the review under thissection,

(b) specify, and comment on, whatever changes appear to OFCOM tohave occurred, during the period to which the report relates, in theextent to which the public service objectives have been fulfilled,

(c) specify, and comment on, whatever changes appear to OFCOM tohave occurred, during that period, in the manner in which thoseobjectives are fulfilled, and

(d) set out OFCOM's conclusions on the current state of material includedin media services.

(3) The public service objectives are the objectives set out in paragraphs(b) to (j) of section 264(6) (as modified by subsection (4)).

(4) Paragraphs (b) to (j) of section 264(6) have effect for the purposes of subsection (3) as if

(a) references to the relevant television services were to media services,and

(b) references to programmes were to material included in such services.
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(5) In this section

material does not include advertisements;

media services means any of the following services that are available tomembers of the public in all or part of the United Kingdom

(a) television and radio services,(b) on-demand programme services, and (c) other services provided bymeans of the internet where there is a person who exercises editorialcontrol over the material included in the service.

(6) The services that are to be taken for the purposes of this section to beavailable to members of the public include any service which

(a) is available for reception by members of the public (within themeaning of section 361); or

(b) is available for use by members of the public (within the meaning of section 368R(4)).

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen s Printer forScotland

Annotation

Section 2

Introduction

The Government s Explanatory Notes to the Bill for this Act (see General Note:Explanatory Notes ) say as follows:

32. Section 264 of the 2003 Act requires OFCOM to report at least everyfive years on the fulfilment of the public service remit for television by publicservice broadcasters, namely the BBC, Channel 4, S4C and providers of Channel 3 and Channel 5. The public service remit involves the provision of abalanced diversity of high quality content, which meets the needs andinterests of different audiences in the United Kingdom. Paragraphs (b) to (j)of section HYPERLINK "http://login.westlaw.co.uk/maf/wluk/ext/app/document?crumb-action=reset&docguid=IA1595B50E45211DA8D70A0E70A78ED65"264(6) of the 2003 Act provide detailed public service objectives underpinning thisremit. According to these objectives, examples of public service mediacontent would include content that reflects, supports and stimulates culturalactivity in the United Kingdom, and content that facilitates fair and wellinformed debates on news and current affairs.

33. This clause extends the scope of OFCOM s reviewing and reportingobligations beyond television. Under new section 264A , OFCOM will berequired to consider the wider delivery of public service media content onother platforms, such as the internet and on-demand programme services,and review the extent to which such content contributes towards thefulfilment of the public service objectives defined in section 264(6)(b) to (j) .
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Online infringement of copyright This version in force from: June 8, 2010 to present

(version 1 of 1)

3 Obligation to notify subscribers of reported infringements

After section 124 of the Communications Act 2003 insert

Online infringement of copyright: obligations of internetservice providers

124A Obligation to notify subscribers of copyrightinfringement reports

(1) This section applies if it appears to a copyright owner that

(a) a subscriber to an internet access service has infringed the owner'scopyright by means of the service; or

(b) a subscriber to an internet access service has allowed another personto use the service, and that other person has infringed the owner'scopyright by means of the service.

(2) The owner may make a copyright infringement report to the internetservice provider who provided the internet access service if a code in forceunder section 124C or 124D (an initial obligations code ) allows the ownerto do so.

(3) A copyright infringement report is a report that

(a) states that there appears to have been an infringement of theowner's copyright;

(b) includes a description of the apparent infringement;

(c) includes evidence of the apparent infringement that shows thesubscriber's IP address and the time at which the evidence wasgathered;

(d) is sent to the internet service provider within the period of 1 monthbeginning with the day on which the evidence was gathered; and

(e) complies with any other requirement of the initial obligations code.

(4) An internet service provider who receives a copyright infringement reportmust notify the subscriber of the report if the initial obligations code requiresthe provider to do so.

(5) A notification under subsection (4) must be sent to the subscriber within
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the period of 1 month beginning with the day on which the provider receivesthe report.

(6) A notification under subsection (4) must include (a) a statementthat the notification is sent under this section in response to a copyrightinfringement report;

(b) the name of the copyright owner who made the report;

(c) a description of the apparent infringement;

(d) evidence of the apparent infringement that shows the subscriber's IPaddress and the time at which the evidence was gathered;

(e) information about subscriber appeals and the grounds on which theymay be made;

(f) information about copyright and its purpose;

(g) advice, or information enabling the subscriber to obtain advice, abouthow to obtain lawful access to copyright works;

(h) advice, or information enabling the subscriber to obtain advice, aboutsteps that a subscriber can take to protect an internet access servicefrom unauthorised use; and

(i) anything else that the initial obligations code requires the notificationto include.

(7) For the purposes of subsection (6)(h) the internet service provider musttake into account the suitability of different protection for subscribers indifferent circumstances.

(8) The things that may be required under subsection (6)(i), whether ingeneral or in a particular case, include in particular

(a) a statement that information about the apparent infringement maybe kept by the internet service provider;

(b) a statement that the copyright owner may require the provider todisclose which copyright infringement reports made by the owner to theprovider relate to the subscriber;

(c) a statement that, following such a disclosure, the copyright ownermay apply to a court to learn the subscriber's identity and may bringproceedings against the subscriber for copyright infringement; and

(d) where the requirement for the provider to send the notification arisespartly because of a report that has already been the subject of a

notification under subsection (4), a statement that the number of copyright infringement reports relating to the subscriber may be takeninto account for the purposes of any technical measures.

(9) In this section notify , in relation to a subscriber, means send anotification to the electronic or postal address held by the internet serviceprovider for the subscriber (and sections 394 to 396 do not apply).



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Annotation

Section 3

Introduction


44. The section of the 2003 Act that is inserted by this clause (section124A) sets out an obligation for ISPs to notify subscribers of copyrightinfringement reports ( CIRs ) received about them from copyright owners. Itdescribes what CIRs and notifications to subscribers must contain, theprocedures that copyright owners must comply with when making CIRs, andthe procedures that ISPs must follow when sending subscriber notifications.

45. Copyright owners are currently able to go on-line, look for material towhich they hold the copyright and identify unauthorised sources for that

material. They can then seek to download a copy of that material and indoing so capture information about the source including the IP address alongwith a date and time stamp. However, at present they do not have the abilityto match this information to the broadband subscriber to whom that IPaddress was allocated at that precise time. This information is only held bythe subscriber s ISP. Therefore, the copyright owner relies on the ISP sability to match the IP address to the name and address of the subscriberconcerned.

46. However, the ISP is unable to pass this information on to the copyrightowner without a court order. To do so would breach data protection andprivacy law. To help ensure that the subscriber is made aware that their

account appears to have been used to breach copyright, section 124Aimposes an initial obligation on the ISP, in relevant cases, to notify thesubscriber if the ISP receives a CIR from a copyright owner. There aremaximum time limits of one month between when an infringement isdetected and a CIR sent to an ISP, and between when a CIR is received andwhen a notification is sent to the subscriber.

47. The notification from the ISP must inform the subscriber that theaccount appears to have been used to infringe copyright, give the name of the copyright owner who has provided the report, provide evidence of theapparent infringement, direct the consumer towards legal sources of content,include information about subscriber appeals and the grounds on which theymay be made, and provide other information. It also requires ISPs to makeavailable advice on protecting internet access services from unauthoriseduse, taking into account that different protection will be suitable for differentsubscribers such as, for example, domestic subscribers, libraries, and smalland medium business. The code may require the notification to include othermaterial as well, such as a statement that information about the apparentinfringement may be kept and disclosed to the copyright owner in certaincircumstances. Further apparent infringements using the subscriber saccount may result in additional notifications.
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My Lords, Clause 4 sets out the requirements that must be met to producea copyright infringement report. These reports are the mechanism by whichthe copyright owner brings specific apparent infringements of their copyrightvia a particular IP address-and I stress apparent -at a particular point intime to the attention of the relevant internet service provider.

Some of these amendments seek to change the name of these reports fromcopyright infringement reports to copyright infringement allegation reports.Others propose a change of the wording to require the trigger leading to thecreation of a CIR to be that in the reasonable opinion of the copyrightholder an infringement of their rights has occurred on that internet account,rather than it merely appearing to them that an infringement hasoccurred.

I recognise that the apparent infringements are not tested and proved tocourt standards. It will not be possible at the time the copyright infringementreport is made to be able to declare with legal certainty that an infringementhas occurred or that the IP address in the reports was responsible. Giventhis, clearly it is of the utmost importance that the standards of evidencesurrounding the identification of both the infringement and the IP address of the infringing account should be as high as possible. I certainly concur withthe points that the noble Lord, Lord Clement-Jones, made in relation to thestandard of evidence and not presuming this is an open-and-shut case; andindeed with the point that the noble Lord, Lord De Mauley, made aboutspeculative allegations-in other words, what is important is the standard of proof and evidence.

New subsection (3) in Clause 4 already expressly recognises that theinfringement described in a copyright infringement report is, as the nobleLord, Lord De Mauley, reminds us, only apparent . Equally I think that thecopyright infringement reports amount to more than mere allegation. ( Hansard, HL Vol.716, col.441 (January 12, 2010) .)

Pepper v Hart Note (see General Note: Pepper v Hart ): Introducing the SecondReading of the Bill for this Act in the House of Commons the Secretary of State forCulture, Media and Sport (Mr Ben Bradshaw) said as follows:

The Bill introduces obligations on internet service providers-the ISPs-tosend letters to subscribers who are linked to an alleged infringement, and torecord the number of notifications with which each subscriber is associated.Copyright owners will be able to apply for a court order to access the namesand addresses of alleged serious infringers and take targeted legal action.We expect that those initial measures will be effective and anticipate that, onreceipt of such letters, the vast majority of subscribers will seek legalalternatives. There is research and real-world experience to back that up. ( Hansard, HL Vol.508, col.839 HYPERLINK "http://www.publications.parliament.uk/pa/cm200910/cmhansrd/cm100406/debtext/100406-0007.htm"(April 6, 2010) .)
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Online infringement of copyright This version in force from: June 8, 2010 to present

(version 1 of 1)

4 Obligation to provide infringement lists to copyright owners

After section 124A of the Communications Act 2003 insert

124B Obligation to provide copyright infringement liststo copyright owners

(1) An internet service provider must provide a copyright owner with acopyright infringement list for a period if

(a) the owner requests the list for that period; and

(b) an initial obligations code requires the internet service provider toprovide it.

(2) A copyright infringement list is a list that

(a) sets out, in relation to each relevant subscriber, which of thecopyright infringement reports made by the owner to the provider relateto the subscriber, but

(b) does not enable any subscriber to be identified.

(3) A subscriber is a relevant subscriber in relation to a copyright ownerand an internet service provider if copyright infringement reports made bythe owner to the provider in relation to the subscriber have reached thethreshold set in the initial obligations code.


Annotation

Section 4

Introduction The Government s Explanatory Notes to the Bill for this Act (see General Note:Explanatory Notes ) say as follows:

48. ISPs will have to keep a record of the number of CIRs linked to eachsubscriber along with a record of which copyright owner sent the report.Under section 124B of the 2003 Act , inserted by clause 5, an ISP may berequired to provide a copyright owner with relevant parts of those records on
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request ( copyright infringement lists ), but in an anonymised form so as toensure compliance with data protection legislation. The code must set thethreshold for determining who is a relevant subscriber who may be thesubject of a copyright infringement list that the ISP provides to a copyrightowner. The threshold may be set by reference to any matter, including thenumber of CIRs made (see clause 8).

49. A copyright infringement report represents a single breach of copyrightat a moment in time. At present, a copyright owner has no way of knowingwhether the subscriber behind that CIR habitually infringes copyright onlineor whether the CIR represents a curious individual trying file-sharing for thefirst and only time. Because of this, the high costs involved in legal actiondeter copyright owners from enforcing their rights. By allowing copyrightowners to target only the most serious repeat infringers, copyrightinfringement lists provided by ISPs are intended to make legal action a moreattractive and effective tool for copyright owners to use in respect of theircopyright.

50. The lists would be made available to copyright owners on request in ananonymised form. For example, while a list might (for example) identifysubscriber 936 as being linked to the most CIRs, it would not include anypersonal information about subscriber 936. In order to get this personaldata, the copyright owner would need a court order. However, the list wouldallow the copyright owner to identify subscriber 936 as someone againstwhom legal action may be appropriate.

Pepper v Hart Note (see General Note: Pepper v Hart ): Introducing the SecondReading of the Bill for this Act in the House of Commons the Secretary of State forCulture, Media and Sport (Mr Ben Bradshaw) said as follows:

The Bill introduces obligations on internet service providers-the ISPs-tosend letters to subscribers who are linked to an alleged infringement, and torecord the number of notifications with which each subscriber is associated.Copyright owners will be able to apply for a court order to access the namesand addresses of alleged serious infringers and take targeted legal action.We expect that those initial measures will be effective and anticipate that, onreceipt of such letters, the vast majority of subscribers will seek legalalternatives. There is research and real-world experience to back that up. ( Hansard, HL Vol.508, col.839 HYPERLINK "http://www.publications.parliament.uk/pa/cm200910/cmhansrd/cm100406/debtext/100406-0007.htm"(April 6, 2010) .)




Online infringement of copyright

This version in force from: April 8, 2010 to present

(version 1 of 1)
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5 Approval of code about the initial obligations

After section 124B of the Communications Act 2003 insert

124C Approval of code about the initial obligations

(1) The obligations of internet service providers under sections 124A and124B are the initial obligations .

(2) If it appears to OFCOM

(a) that a code has been made by any person for the purpose of regulating the initial obligations; and

(b) that it would be appropriate for them to approve the code for thatpurpose,

they may by order approve it, with effect from the date given in the order.

(3) The provision that may be contained in a code and approved under thissection includes provision that

(a) specifies conditions that must be met for rights and obligations underthe copyright infringement provisions or the code to apply in a particularcase;

(b) requires copyright owners or internet service providers to provideany information or assistance that is reasonably required to determinewhether a condition under paragraph (a) is met.

(4) The provision mentioned in subsection (3)(a) may, in particular, specifythat a right or obligation does not apply in relation to a copyright ownerunless the owner has made arrangements with an internet service providerregarding

(a) the number of copyright infringement reports that the owner maymake to the provider within a particular period; and

(b) payment in advance of a contribution towards meeting costs incurredby the provider.

(5) The provision mentioned in subsection (3)(a) may also, in particular,provide that

(a) except as provided by the code, rights and obligations do not apply inrelation to an internet service provider unless the number of copyrightinfringement reports the provider receives within a particular periodreaches a threshold set in the code; and

(b) if the threshold is reached, rights or obligations apply with effect from thedate when it is reached or from a later time. (6) OFCOM must not approve acode under this section unless satisfied that it meets the criteria set out insection 124E.

(7) Not more than one approved code may have effect at a time.

(8) OFCOM must keep an approved code under review.

(9) OFCOM may by order, at any time, for the purpose mentioned in
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subsection (2)

(a) approve modifications that have been made to an approved code; or

(b) withdraw their approval from an approved code,

with effect from the date given in the order, and must do so if the code

ceases to meet the criteria set out in section 124E.(10) The consent of the Secretary of State is required for the approval of acode or the modification of an approved code.

(11) An order made by OFCOM under this section approving a code ormodification must set out the code or modification.

(12) Section 403 applies to the power of OFCOM to make an order under thissection.

(13) A statutory instrument containing an order made by OFCOM under thissection is subject to annulment in pursuance of a resolution of either Houseof Parliament.


Annotation

Section 5

Introduction


51. The obligations provided for in new sections 124A and 124B would nothave effect until there was a complementary code in force that had beenapproved or made by OFCOM .

52. Clause 6 inserts new section 124C in the 2003 Act . This section sets outthe requirements for OFCOM s approval of a code regulating matters inconnection with the initial obligations. The process by which infringementsare detected, the standard of evidence that the copyright owner must meetbefore an ISP must send a notification, the format of CIRs, and the routes of appeal for consumers are all issues of detail that section 124C would requirethe code to deal with. The government hopes that all stakeholders (ISPs,copyright owners and consumers) will contribute to the development of an

industry code. Other criteria that an approved industry code may specifyinclude setting in advance the number of CIRs the ISPs will be expected toprocess in a given period (say, six months).

53. Without these criteria, there would be no obligation for copyrightowners to provide infringement information in a standard format and noprotection for ISPs in the event that copyright owners set extremely highlevels of expected CIRs.
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54. The government also envisages that any approved code would also setout the time a copyright owner has to submit a CIR (so that a CIR mustrelate to a recent infringement) and the time the ISP has to act on the CIRand send a notification to the subscriber (for example, 5 working days)within the outer limits of one month set by the legislation.

55. The government s intention is for the obligations to fall on all ISPsexcept those who are demonstrated to have a very low level of onlineinfringement. This is on the basis that it would be disproportionate (in costterms) to require an ISP to incur significant costs to counter a problem thatdoes not exist to any significant degree on its network. The proposal istherefore for the code to set out qualifying threshold criteria, based on thenumber of CIRs an ISP receives in a set period of time. The governmentanticipates that most small and medium ( SME ) ISPs and, possibly, themobile networks would fall under the threshold. However, this exemptionwould not be a one-off exercise and the qualifying period would be a rollingone (for example, x number of CIRs received in a rolling 3 month period).ISPs would need to ensure online infringement of copyright remained at alow level or else face the prospect of passing the qualifying threshold. Oncein scope, ISPs would have to comply with the obligations and to continue todo so even if the number of CIRs later fell below the threshold.

56. In order to ensure that the code covered all the necessary areas and toa sufficient standard, OFCOM s approval would be needed before it couldcome into force and the Secretary of State would need to consent to theapproval.

57. Before approving a code, OFCOM would have to carry out consultation.Under section 124C and section 124E (which is inserted by clause 8), OFCOMwould also need to satisfy themselves that the code was objectively

justifiable, proportionate and transparent.






(version 1 of 1)

6 Initial obligations code by OFCOM in the absence of anapproved code

After section 124C of the Communications Act 2003 insert

124D Initial obligations code by OFCOM in the absenceof an approved code

(1) For any period when sections 124A and 124B are in force but for which
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there is no approved initial obligations code under OFCOM must by ordermake a code for the purpose of regulating the initial obligations.

(2) OFCOM may but need not make a code under subsection (1) for a timebefore the end of

(a) the period of six months beginning with the day on which sections124A and 124B come into force, or

(b) such longer period as the Secretary of State may specify by notice toOFCOM.

(3) The Secretary of State may give a notice under subsection (2)(b) only if it appears to the Secretary of State that it is not practicable for OFCOM tomake a code with effect from the end of the period mentioned in subsection(2)(a) or any longer period for the time being specified under subsection (2)(b).

(4) A code under this section may do any of the things mentioned in section124C(3) to (5).

(5) A code under this section may also

(a) confer jurisdiction with respect to any matter (other than jurisdictionto determine appeals by subscribers) on OFCOM themselves;

(b) provide for OFCOM, in exercising such jurisdiction, to make awards of compensation, to direct the reimbursement of costs, or to do both;

(c) provide for OFCOM to enforce, or to participate in the enforcement of,any awards or directions made under the code;

(d) make other provision for the enforcement of such awards anddirections;

(e) establish a body corporate, with the capacity to make its own rulesand establish its own procedures, for the purpose of determiningsubscriber appeals;

(f) provide for a person with the function of determining subscriberappeals to enforce, or to participate in the enforcement of, any awards ordirections made by the person; (g) make other provision for theenforcement of such awards and directions; and

(h) make other provision for the purpose of regulating the initialobligations.

(6) OFCOM must not make a code under this section unless they are satisfiedthat it meets the criteria set out in section 124E.

(7) OFCOM must

(a) keep a code under this section under review; and

(b) by order make any amendment of it that is necessary to ensure thatwhile it is in force it continues to meet the criteria set out in section124E.

(8) The consent of the Secretary of State is required for the making or


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amendment by OFCOM of a code under this section.

(9) Section 403 applies to the power of OFCOM to make an order under thissection.

(10) A statutory instrument containing an order made by OFCOM under thissection is subject to annulment in pursuance of a resolution of either Houseof Parliament.


Annotation

Section 6

Introduction


58. Clause 7 inserts new section 124D in the 2003 Act . The new sectionprovides for the making by OFCOM of a code regulating the initial obligationsif there is no industry code. The government hopes industry can devise asatisfactory code which OFCOM approves. However, if that does not happen,OFCOM must develop a code themselves for adoption by order. It is possiblethat stakeholders may be able to reach agreement on parts of the code,which OFCOM can then consider, and, if appropriate, include as part of OFCOM s code. Again, the consent of the Secretary of State would berequired for the making of the code.






(version 1 of 1)

7 Contents of initial obligations code

After section 124D of the Communications Act 2003 insert

124E Contents of initial obligations code

(1) The criteria referred to in sections 124C(6) and 124D(6) are

(a) that the code makes the required provision about copyrightinfringement reports (see subsection (2));

(b) that it makes the required provision about the notification of subscribers (see subsections (3) and (4));
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(c) that it sets the threshold applying for the purposes of determiningwho is a relevant subscriber within the meaning of section 124B(3) (seesubsections (5) and (6));

(d) that it makes provision about how internet service providers are tokeep information about subscribers;

(e) that it limits the time for which they may keep that information;

(f) that it makes any provision about contributions towards meeting coststhat is required to be included by an order under section 124M;

(g) that the requirements concerning administration and enforcement aremet in relation to the code (see subsections (7) and (8));

(h) that the requirements concerning subscriber appeals are met inrelation to the code (see section 124K);

(i) that the provisions of the code are objectively justifiable in relation tothe matters to which it relates;

(j) that those provisions are not such as to discriminate unduly againstparticular persons or against a particular description of persons;

(k) that those provisions are proportionate to what they are intended toachieve; and

(l) that, in relation to what those provisions are intended to achieve, theyare transparent.

(2) The required provision about copyright infringement reports isprovision that specifies (a) requirements as to the means of obtainingevidence of infringement of copyright for inclusion in a report;

(b) the standard of evidence that must be included; and

(c) the required form of the report.

(3) The required provision about the notification of subscribers is provisionthat specifies, in relation to a subscriber in relation to whom an internetservice provider receives one or more copyright infringement reports

(a) requirements as to the means by which the provider identifies thesubscriber;

(b) which of the reports the provider must notify the subscriber of; and

(c) requirements as to the form, contents and means of the notificationin each case.

(4) The provision mentioned in subsection (3) must not permit any copyrightinfringement report received by an internet service provider more than 12months before the date of a notification of a subscriber to be taken intoaccount for the purposes of the notification.

(5) The threshold applying in accordance with subsection (1)(c) may, subjectto subsection (6), be set by reference to any matter, including in particularone or more of


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(a) the number of copyright infringement reports;

(b) the time within which the reports are made; and

(c) the time of the apparent infringements to which they relate.

(6) The threshold applying in accordance with subsection (1)(c) must operate

in such a way that a copyright infringement report received by an internetservice provider more than 12 months before a particular date does notaffect whether the threshold is met on that date; and a copyrightinfringement list provided under section 124B must not take into account anysuch report.

(7) The requirements concerning administration and enforcement are

(a) that OFCOM have, under the code, the functions of administering andenforcing it, including the function of resolving owner-provider disputes;

(b) that there are adequate arrangements under the code for OFCOM toobtain any information or assistance from internet service providers orcopyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code; and

(c) that there are adequate arrangements under the code for the costsincurred by OFCOM in administering and enforcing the code to be met byinternet service providers and copyright owners.

(8) The provision mentioned in subsection (7) may include, in particular

(a) provision for the payment, to a person specified in the code, of apenalty not exceeding the maximum penalty for the time being specifiedin section 124L(2);

(b) provision requiring a copyright owner to indemnify an internet serviceprovider for any loss or damage resulting from the owner's failure tocomply with the code or the copyright infringement provisions.

(9) In this section owner-provider dispute means a dispute that

(a) is between persons who are copyright owners or internet serviceproviders; and

(b) relates to an act or omission in relation to an initial obligation or aninitial obligations code.


Annotation Section 7

Introduction

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59. Clause 8 inserts new section 124E in the 2003 Act . This sets out whatthe code underpinning the initial obligations (whether an industry code orOFCOM s own code) must contain. The reason for including the underpinningmaterial in a code, rather than directly in the 2003 Act , is that it is likely tobe detailed and to have to be adapted and refined over time.

60. The code must set out the process by which the initial obligations willoperate and the procedures that copyright owners and ISPs must follow inrelation to them. It must set out the criteria, evidence and standards of evidence required in a CIR and the required format and content of anotification letter sent to a subscriber. It must not permit any CIR more than12 months old to be taken into account for the purposes of a notification.

61. The code must also set the threshold applying for the purposes of determining who is a relevant subscriber under section 124B (and maytherefore be the subject of a copyright infringement list). CIRs which aremore than 12 months old must not be taken into account to determinewhether the threshold is met and a copyright infringement list under s134B

must not take into account any such CIR.

62. The code must also take into account circumstances wherebyinjunctions as specified under clause 18 may be brought. It must provide forOFCOM to administer the code and to enforce it in the event of a failure tocomply with the code, and it must meet the requirements concerningsubscriber appeals (as set out in new section 124K of the 2003 Act , insertedby clause 14).






(version 1 of 1)

9 Obligations to limit internet access: assessment andpreparation

After section 124F of the Communications Act 2003 insert

124G Obligations to limit internet access: assessmentand preparation

(1) The Secretary of State may direct OFCOM to

(a) assess whether one or more technical obligations should be imposedon internet service providers;

(b) take steps to prepare for the obligations;
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(c) provide a report on the assessment or steps to the Secretary of State.

(2) A technical obligation , in relation to an internet service provider, is anobligation for the provider to take a technical measure against some or allrelevant subscribers to its service for the purpose of preventing or reducinginfringement of copyright by means of the internet.

(3) A technical measure is a measure that

(a) limits the speed or other capacity of the service provided to asubscriber;

(b) prevents a subscriber from using the service to gain access toparticular material, or limits such use;

(c) suspends the service provided to a subscriber; or

(d) limits the service provided to a subscriber in another way.

(4) A subscriber to an internet access service is relevant if the subscriber

is a relevant subscriber, within the meaning of section 124B(3), in relation tothe provider of the service and one or more copyright owners.

(5) The assessment and steps that the Secretary of State may direct OFCOMto carry out or take under subsection (1) include, in particular

(a) consultation of copyright owners, internet service providers,subscribers or any other person;

(b) an assessment of the likely efficacy of a technical measure in relationto a particular type of internet access service; and

(c) steps to prepare a proposed technical obligations code. (6) Internetservice providers and copyright owners must give OFCOM any assistance

that OFCOM reasonably require for the purposes of complying with anydirection under this section.

(7) The Secretary of State must lay before Parliament any direction underthis section.


(a) as soon as practicable after they send it to the Secretary of State,and

(b) in such manner as they consider appropriate for bringing it to theattention of persons who, in their opinion, are likely to have an interestin it.

(9) OFCOM may exclude information from a report when it is published undersubsection (8) if they consider that it is information that they could refuse todisclose in response to a request under the Freedom of Information Act2000.


Annotation


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Section 9

Introduction


65. New section 124G of the 2003 Act , inserted by clause 10, confers apower on the Secretary of State to direct OFCOM to assess whether ISPsshould be obliged to take technical measures against certain subscribers, ordirect OFCOM to take steps to prepare for technical obligations. In particular,OFCOM may be required to carry out a consultation or assess the likelyefficacy of different kinds of technical measure, and to report back to theSecretary of State. Technology used for the purposes of online infringementof copyright is changing fast and it is not possible at this stage to knowwhich technical measures would be effective. OFCOM will have to publishtheir reports under this section but may exclude information they considerthey could refuse to disclose under the Freedom of Information Act

HYPERLINK "http://login.westlaw.co.uk/maf/wluk/ext/app/document?crumb-action=reset&docguid=I5FACCF40E42311DAA7CF8F68F6EE57AB"2000 .

66. The government s aim is for the initial obligations in new sections 124Aand 124B to significantly reduce online infringement of copyright. However,in case the initial obligations prove not as effective as expected, new section124H gives the Secretary of State the power to introduce further obligations,should that prove appropriate.

67. OFCOM would be required to set out supporting provision in a technicalobligations code under section 124I (which is inserted by clause 12).

Pepper v Hart Note (see General Note: Pepper v Hart ): In Committee on the Billfor this Act in the House of Lords Lord Faulkner of Worcester said as follows:

It might be helpful if I start by saying why we have included the possibilityof technical obligations in the Bill. As my noble friends on the governmentFront Bench have said many times in our consideration of the Bill thus far,the Government believe that the initial obligations set out in Clauses 4 to 8should result in a significant reduction in online copyright infringement. Webelieve that they are reasonable and proportionate steps to take and thatmost people will respond positively when they become aware that theiractions are not only unlawful but also visible to those who can take steps toseek redress.

However, we also recognise the strength of the argument that has been putto us that these initial obligations may not be sufficient. Those industries thathave suffered at the hands of mass online copyright infringement are rightlyanxious that we should be sure that the Bill gives us all the tools required tosolve the problem. Therefore we have in Clauses 10 to 13 a reserve power tointroduce technical obligations, should it be necessary to do so, to stem theflood of online copyright infringement if the initial obligations do not work.Clause 10 gives the Secretary of State the power to require Ofcom to assessthe need for technical obligations and to make preparations for the
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imposition of those obligations such as preparing a technical obligationscode. ( Hansard, HL Vol.716, col.1068 (January 20, 2010) .)


My Lords, Clause 10 allows the Secretary of State to require Ofcom toprepare in advance against the need for technical obligations, to requireOfcom to assess the need for technical obligations generally and the likelyefficacy of particular technical obligations on particular types of networks,and to require Ofcom to develop a code of practice to underpin any suchtechnical obligations.

It may well be desirable for those powers to be used one at a time ratherthan in parallel. The Secretary of State might want an assessment of whether any measure is needed and, if so, which is the right one beforeasking for a code to be drawn up. This would make sense since the detail of

the code is likely to be heavily influenced by the nature of the measure. Thissuggests that it is not sensible to make all of paragraphs (a) to (c) arequirement in relation to every direction that the Secretary of State mightmake under new subsection (1) of new Section 124G of the Communications Act 2003 in Clause 10.

Imposing technical obligations is something a Secretary of State woulddecide only if he were sure it was the only way to deal with the problem of online copyright infringement and if the initial obligations have failed todeliver the expected results. I stress that because we are all committed toensuring that the initial obligations have an opportunity to deliver theexpected results before we think about technical measures. An assessmentof whether technical obligations should be imposed will be informed byconsultation of relevant groups, including consumers-there is an explicitassurance on that-which in this context includes subscribers. ( Hansard, HL Vol.716, col.1302 (January 26, 2010) .)






(version 1 of 1)

10 Obligations to limit internet access

After section 124G of the Communications Act 2003 insert

124H Obligations to limit internet access
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(1) The Secretary of State may by order impose a technical obligation oninternet service providers if

(a) OFCOM have assessed whether one or more technical obligationsshould be imposed on internet service providers; and

(b) taking into account that assessment, reports prepared by OFCOMunder section 124F, and any other matter that appears to the Secretaryof State to be relevant, the Secretary of State considers it appropriate tomake the order.

(2) No order may be made under this section within the period of 12 monthsbeginning with the first day on which there is an initial obligations code inforce.

(3) An order under this section must specify the date from which thetechnical obligation is to have effect, or provide for it to be specified.

(4) The order may also specify

(a) the criteria for taking the technical measure concerned against asubscriber;

(b) the steps to be taken as part of the measure and when they are to betaken.

(5) No order is to be made under this section unless

(a) the Secretary of State has complied with subsections (6) to (10), and

(b) a draft of the order has been laid before Parliament and approved bya resolution of each House.

(6) If the Secretary of State proposes to make an order under this section,the Secretary of State must lay before Parliament a document that

(a) explains the proposal, and

(b) sets it out in the form of a draft order.

(7) During the period of 60 days beginning with the day on which thedocument was laid under subsection (6) ( the 60-day period ), theSecretary of State may not lay before Parliament a draft order to give effectto the proposal (with or without modifications).

(8) In preparing a draft order under this section to give effect to theproposal, the Secretary of State must have regard to any of the followingthat are made with regard to the draft order during the 60-day period

(a) any representations, and(b) any recommendations of a committee of either House of Parliamentcharged with reporting on the draft order.

(9) When laying before Parliament a draft order to give effect to the proposal(with or without modifications), the Secretary of State must also lay adocument that explains any changes made to the proposal contained in thedocument laid before Parliament under subsection (6).


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(10) In calculating the 60-day period, no account is to be taken of any timeduring which Parliament is dissolved or prorogued or during which eitherHouse is adjourned for more than 4 days.


Annotation Section 10

Introduction


68. New section 124H of the 2003 Act is inserted by clause 11 and givesthe Secretary of State power to order ISPs to impose technical measures oninternet access service subscribers meeting certain criteria. This power can

only be used if the initial obligations code has been in force for at least 12months, and OFCOM have assessed whether technical obligations should beimposed on ISPs. The order would be subject to the draft affirmativeprocedure.

69. A technical measure may only be applied against a relevantsubscriber , that is a subscriber who has been linked to sufficient CIRs tomake them eligible for inclusion in a copyright infringement list.






(version 1 of 1)

11 Code by OFCOM about obligations to limit internet access

After section 124H of the Communications Act 2003 insert

124I Code by OFCOM about obligations to limit internetaccess

(1) For any period during which there are one or more technical obligationsin force under section 124H, OFCOM must by order make a technicalobligations code for the purpose of regulating those obligations.

(2) The code may be made separately from, or in combination with, anyinitial obligations code under section 124D.
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(version 1 of 1)

12 Contents of code about obligations to limit internet access

After section 124I of the Communications Act 2003 insert

124J Contents of code about obligations to limitinternet access

(1) The criteria referred to in section 124I(4) are

(a) that the requirements concerning enforcement and related mattersare met in relation to the code (see subsections (2) and (3));

(b) that the requirements concerning subscriber appeals are met inrelation to the code (see section 124K);

(c) that it makes any provision about contributions towards meetingcosts that is required to be included by an order under section 124M;

(d) that it makes any other provision that the Secretary of State requiresit to make;

(e) that the provisions of the code are objectively justifiable in relation tothe matters to which it relates;

(f) that those provisions are not such as to discriminate unduly against

particular persons or against a particular description of persons;(g) that those provisions are proportionate to what they are intended toachieve; and

(h) that, in relation to what those provisions are intended to achieve,they are transparent.

(2) The requirements concerning enforcement and related matters are

(a) that OFCOM have, under the code, the functions of administering andenforcing it, including the function of resolving owner-provider disputes;

(b) that there are adequate arrangements under the code for OFCOM toobtain any information or assistance from internet service providers orcopyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code; and

(c) that there are adequate arrangements under the code for the costsincurred by OFCOM in administering and enforcing the code to be met byinternet service providers and copyright owners. (3) The provision madeconcerning enforcement and related matters may also (unless the Secretaryof State requires otherwise) include, in particular
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(a) provision for the payment, to a person specified in the code, of apenalty not exceeding the maximum penalty for the time being specifiedin section 124L(2);

(b) provision requiring a copyright owner to indemnify an internet serviceprovider for any loss or damage resulting from the owner's infringementor error in relation to the code or the copyright infringement provisions.

(4) In this section owner-provider dispute means a dispute that

(a) is between persons who are copyright owners or internet serviceproviders; and

(b) relates to an act or omission in relation to a technical obligation or atechnical obligations code.


Annotation

Section 12

Introduction


72. Clause 13 inserts new section 124J in the 2003 Act . Section 124J setsout a list of matters which are to be included in the technical obligationscode. Thus the code must, for example, include provision in relation toenforcement and meet the requirements concerning subscriber appeals (as

set out in new section 124K, inserted by clause 14). The person hearingappeals from subscribers must be independent, and OFCOM may set up abody for that purpose.

73. The government envisages that the code would also set out the processby which a technical measure would be taken, and the information thatwould have to be sent to a subscriber facing such a measure. It would alsoaddress how any costs might be apportioned, and set out the disputemechanism in the event of disagreement between an ISP and a copyrightowner.





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Digital Economy Act 2010