UK Digital Economy Act 2010 survives judicial review

Today judgment was handed down in the judicial review proceedings brought by ISPs BT and TalkTalk, seeking to strike down the UK's Digital Economy Act 2010. The hearing took place over four days, finishing on 28 March. The judge, Mr Justice Kenneth Parker, has shown admirable industry in completing his 71 page judgment, which is really a tour de force, so swiftly. 

The judge works his way through the claimants' various complaints, dismissing them in a largely convincing fashion. In relation to the draft Costs Order, which would impose on ISPs and right holders the costs of OFCOM and the proposed appeals body, the judge held that the proposed order was incompatible with Art. 12 of the Authorisation Directive. Otherwise the Act survived, the judge rejecting arguments that it was disproportionate and contravened the Electronic Commerce, Privacy and Electronic Communications and Authorisation Directives. It gratifying to see convincingly squashed the bogus arguments about data privacy that have for so long been trotted out by ISPs. 

TalkTalk's spokesman today claimed magnificently that they would "continue fighting to defend our customers' rights against this ill-judged legislation". If you read TalkTalk's submission to the Hargreaves IP Review, one could be forgiven for suspecting that their real concern is the price they have to pay for music.

Unless there is to be an appeal, the various stakeholders must return to the dull business of trying to thrash out workable arrangements to put into effect what the legislature overwhelmingly approved.

New Zealand passes robust Graduated Response legislation

Yesterday, 13 April 2011, the Copyright (Infringing File Sharing) Amendment Bill was approved by the New Zealand Parliament (video here), amending the 1994 Copyright Act. Although the Government was bitterly criticised by the Green Party during the debate, the main parties supported the Bill, resulting in 111 votes in favour and only 11 opposed. At Third Reading the Government introduced certain amendments, including the pushing back of commencement to 1 September 2011.

Under the amended Copyright Act, right holders will be entitled to require ISPs to notify subscribers of detected infringements. After 3 notices, the right holder will be able to bring the subscriber before the Copyright Tribunal, claiming payment of a penalty of up to $NZ 15,000. 

The Act also makes provision enabling the right holder to sue in the District Court for an order requiring the subscriber's ISP to suspend his Internet access for up to 6 months. However, the Government has to some extent deferred to activist and ISP opposition by agreeing to suspend implementation until the effectiveness of the Copyright Tribunal system has been established. The relevant provisions can be brought into effect by Order in Council.

As a result of review in Committee, the Act adopts a more limited definition of file-sharing than that originally proposed. It now applies only to cases where "material is uploaded via, or downloaded from, the Internet using an application or network that enables the simultaneous sharing of material between multiple users; and ... uploading and downloading may, but need not, occur at the same time." This would seem effectively to cover peer-to-peer infringement, but not the rapidly growing problem of cyberlockers, such as Rapidshare or Megaupload. These services, hugely used for piracy, are one-to-one user-server applications. As they do not enable sharing "between" multiple users, they seem to fall outside the definition.

This robust scheme seems likely to provide a testbed for GR under a common law system, as the UK's Digital Economy Act limps on towards an unknown destiny ...

Graduated Response à la belge

In January a Bill was presented in the Chamber of Representatives (Lower House) containing provisions to enhance copyright protection on the Internet, including a graduated response system. Bill 53/1120/01, sponsored by members of the French-speaking Liberal Party (Mouvement Réformateur).  If it passes, Belgium would become the third European country to pass GR legislation. However, the Bill has provoked a strong campaign by the so-called Net Users’ Rights Protection Association (NURPA). Anti-copyright blog EDRI claimed on 23 March 2011 that the Bill’s sponsors have agreed to suspend their proposal for an indefinite period.

The Bill proposes that ISPs would be required in their contracts with subscriber to state that creative works are protected by copyright, to warn of the negative cultural and economic effects of piracy and to describe the GR provisions of the Bill (Art. 5). The contract would also advise the subscriber as to the need for securing his Internet access against intrusion and point the subscriber to a web site, to be set up under the Bill by a newly-formed Council for the Protection of Copyright on the Internet, listing sources of licensed content. The Bill appears to impose extended collective licensing for the communication to the public of works online, on the model of cable retransmission right (Art. 8).

The key provision on GR is Art. 14, which prohibits subscribers from using their Internet access for the purposes of up- and downloading of protected works or services without licence. It is envisaged that investigative officers authorised by the State will detect infringements and require disclosure of name and address details from service providers. On the first infringement, the officer sends a warning letter to the subscriber. In case of a second infringement within 6 months, the officer sends a second letter offering the subscriber the opportunity to pay a fine to conclude the case (Art. 17). The subscriber can appeal to the Minister – so this is an administrative, rather than a judicial process.

In the event of a third infringement within 2 years, the officer reports the matter to the Public Prosecutor, who may take such action as he thinks fit. The court may impose a fine of 100 to 1,000 Euros, and, depending on the circumstances of the case, can impose a limitation on the subscriber’s Internet access. It appears that what is contemplated is that the ISP would be required to reduce the subscriber’s bandwidth to a level that would render file-sharing difficult. If the subscriber moves to another ISP, the new ISP must respect the limitation imposed. If there is yet another infringement within a period of 3 years, the maximum fine is doubled and Internet access may be suspended altogether (but leaving intact any telephony or television services). Failure by an ISP to respect the terms of a limitation or suspension of access may be visited with a fine of up to 2,000 euros.

The Council for the Protection of Copyright on the Internet would seem essentially to be an advisory body, receiving reports of cases and providing advice to Government – a much lighter structure than the French Haute Autorité.

Even if the blog reports are right, it is hard to imagine that we have heard the last of the Réponse graduée à la belge…