Ofcom issues first consultation on three strikes implementation

Ofcom, the UK body which exercises supervision of the nation's communications sector, has now published Online Infringement of Copyright and the Digital Economy Act 2010: Draft Initial Obligations Code. The full print version of this document is a formidable 74 pages in length (you can read it here) and is only the first step in a consultation dialogue which will end with all interested parties having a say in what sort of rope internet service providers (ISPs) are expected to hang online copyright infringers with.

The Act itself requires ISPs to notify their subscribers if their internet protocol addresses are reported by copyright owners, in a copyright infringement report (CIR), as being used for the purpose of infringing copyright. ISPs will also have to furnish copyright owners with anonymised copyright infringement lists concerning subscribers whose CIRs exceed the threshold of illicit permissibility. Initially Ofcom's code is proposed to cover only the seven fixed-line ISPs with over 400,000 subscribers (BT, Talk Talk, Virgin Media, Sky, Orange, O2 and -- perhaps a surprise for some readers -- the Post Office).

Ofcom proposes that notifications be sent to subscribers on receipt of the first CIR, on receipt of a second CIR a month or more later, then on receipt of a third CIR received a month or more after the second (the 'three strikes'). Any subscriber would be included in a CIL if he or she receives three notifications within a year and the copyright owner requesting the CIL has sent at least one CIR relating to that subscriber within that year. Any subscriber facing cut-off will be able to appeal to an independent body, which Ofcom is required to establish, and which must adopt "specific measures to protect subscribers during the hearing of appeals, including a right to anonymity".

According to the draft code's Executive Summary, what Ofcom proposes is

"a system of quality assurance reporting to ensure that where allegations are made against subscribers they are based upon credible evidence, gathered in a robust manner".

The code has to be up and running by 8 January 2011 unless the Secretary of State extends the timetable [or the Act is subject to a new Statutory Scrappage scheme?]. Variable factors such as the need to pass subordinate legislation, notification of the code to the European Commission and Parliamentary approval may slow things down.

Two further consultation exercises are planned. These will cover (i) enforcement of the code and the handling of industry disputes, which is expected next month, and (ii) tariff setting – i.e. sharing costs - from implementing and fulfilling requirements in the code (possibly as early as September, depending on the progress of the government's cost-sharing plans).

Responses to this consultation are invited by 30 July 2010. To respond, click here. To see if anyone else has responded yet, click here.