Digital Economy Act 2010
Encyclopedia
The Digital Economy Act 2010 (c. 24) is an Act
of the Parliament of the United Kingdom
regulating digital media. Introduced by Peter Mandelson, Lord Mandelson
, it received Royal Assent
on 8 April 2010, and came into force on 8 June 2010 (with the exception of certain sections that came into force on 8 April; and certain other sections that will be brought into force by statutory instrument
).
The act has been subject to judicial, parliamentary and regulatory review since coming into force.
proved controversial. It establishes a system of law which aims to first increase the ease of tracking down and suing persistent infringers, and after a minimum of one year permit the introduction of "technical measures" to reduce the quality of, or potentially terminate, those infringers' Internet connections. It also creates a new ex-judicial process to handle appeals.
The new process, which will come into force when Ofcom
's regulatory code is approved by Parliament, begins with rightsholders gathering lists of Internet Protocol
addresses which they believe have infringed their copyrights. (This data could be gathered most easily by a rightsholder connecting to a Peer-to-Peer
download of a work they own, and noting the other IP addresses to which their computer connects.) They would then send each IP number to the appropriate Internet Service Provider
(newly-defined in the Act as a provider of IP addresses) along with a "copyright infringement report".
The ISP must then send a notification to the subscriber in question. The conditions under which this is required (i.e. the standard of evidence required) are not specified in the Act, but left to Ofcom's regulatory code. The receipt of the infringement report and its recipient are noted by the ISP, if valid, but no further action is taken.
The next stage in proceedings involves the rightsholder requesting a "copyright infringement list" from the ISP. This contains an anonymous list of all subscribers who have "reached the threshold set in the [Ofcom] code" with regard to infringement reports for their works. The rightsholder can then approach a judge to gain a court order
to identify some or all of the subscribers on the list, and with that information launch standard copyright infringement litigation against them.
Most operational details of the copyright infringement provisions are not defined in the Act, but left to a series of regulatory codes produced by Ofcom
. The Act defines only the utmost limits within which these codes can work. On May 28, 2010 Ofcom published a draft initial obligations code for consultation.
According to the Act Ofcom must produce "progress reports" once every three months on the levels of copyright infringement in the country, with a larger report coming once every 12 months.
After Ofcom's code has been in force for one year, the Secretary of State
becomes able to lay down an order for ISPs to impose "technical measures" on subscribers who meet the copyright infringement report threshold (see above). These measures may limit Internet access in any way, including suspending it entirely. Unlike other areas of the Act Ofcom do not produce a code that defines what the measures are (though they are responsible for enforcing them): instead the Secretary of State decides all specifics, needing only to "take into account" Ofcom's recommendations.
The Act requires the provision of an independent appeal
s process, covering the grounds on which infringement reports are made. Cases are heard by a body set up by Ofcom
, or if a technical measure has been applied a First-tier Tribunal
.
Unlike in judicial appeals, the subscriber is innocent until proven guilty: the Act states that "an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or internet service provider shows that a) the apparent infringement was an infringement of copyright, and b) the report relates to the subscriber’s IP address at the time of that infringement". An appeal will also succeed if the subscriber can show that the rightsholder or ISP broke Ofcom's regulatory code in any way.
The Act gives Ofcom the responsibility of enforcing ISPs' obligations. A fine of up to £250,000 can be levied on ISPs in contravention; that limit can be raised by the Secretary of State with Parliament's consent.
The Act also allows the Secretary of State to define, with the consent of Parliament, the "sharing of costs" incurred from the Act's legal processes. The order can require reimbursements to be made by rightsholders and/or ISPs, and in the case of appeals, subscribers.
, upper
and lower houses of Parliament and a court of law - to block access to a location on the Internet "from which a substantial amount of material has been, is being or is likely to be made available in infringement of copyright", or a location which "facilitates" such behaviour.
In deciding whether to grant an injunction, the court is required to consider:
The Secretary of State must be satisfied before making the request that the location is "having a serious adverse effect on businesses or consumers", that the injunction "is a proportionate way to address that effect", and that "making the regulations would not prejudice national security or the prevention or detection of crime".
to increase the criminal liability for "making or dealing with infringing articles" and "making, dealing with or using illicit recordings" to a maximum of £50,000, so long as it is done during the course of a business.
Regulation of content is also in the Act, which adopts the Pan European Game Information
(PEGI) standard for video game ratings. The UK government is also able directly to intervene to control the use of the UK's domain name space, currently overseen by the independent body Nominet.
The Act also includes changes to DAB radio in the United Kingdom
including the reorganisation and merging of some of the local DAB ensemble
s and a requirement for a digital switchover of terrestrial radio in the United Kingdom.
Further measures included:
report of 2009, a policy document which outlined the United Kingdom Government's strategic vision for its digital economy. Lord Carter, the former Digital Britain minister and Downing Street special adviser spent eight months considering the matter along with 25 civil servants for the report, released in June 2009. However, the proposed bill reversed Lord Carter's recommendation against cutting off internet access for alleged copyright infringement. The Digital Economy Bill was announced in the 2009 Queen's Speech
before the United Kingdom parliament. The first reading of the bill was presented to the House of Commons of the United Kingdom on 16 March 2010. The bill received its second reading on the 6 April 2010 in a Commons debate and was given support by the Conservative
front bench and as expected was not debated at length in the Commons, and was instead pushed through in the wash-up period
. It passed third reading on 7 April with Royal Assent
granted on 8 April. As of 12 June 2010, the Act is now in force.
reported that according their Whitehall sources First Secretary of State Peter 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. The paper also reported that this included 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. 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. At the time Mandelson denied that the two events were linked.
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, at least two months before public consultation had finished, and that he had shown little interest in the consultation. Letters from Lord Mandelson's office document talks with Lucian Grainge
, CEO of Universal Music Group
on the 2 June 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". Mandelson made the formal announcement that technical measures, including disconnection, were to be included in the Digital Economy Bill two months later on the 7 August 2009.
. The wash-up is an accelerated parliamentary process used after general elections have been called to rush unopposed legislation through parliament before dissolution. During the wash-up Conservative and Liberal Democrats introduced Clause 17 on website blocking for copyright infringement into the bill. Clause 17 was initially proposed by Liberal Democrats in the House of Lords
, however Liberal Democrat parliamentarians subsequently tried to retract the amendment. Clause 17 was further amended in wash-up and became law as Sections 17 and 18 of the Act. Website blocking was not part of the approach proposed in the Digital Britain
Report. 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.
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".
The Open Rights Group, privacy and consumer rights organisations criticised the online copyright infringement provisions of the bill, now section 3 to 18 of the Act, due partly to its proposal of a graduated response
scheme, which may (if regulators and parliament feel the Act is not having enough impact) eventually reach as far as disconnecting Internet accounts used for persistent copyright infringement
. The Group took their concerns to the House of Lords. Concerns have also been raised about the impact on businesses offering Internet access to their customers, such as libraries and universities.
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. More than 35,000 people signed a Number 10 petition, 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
.
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, 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"). 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".
were strongly opposed to it. 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."
The Liberal Democrats
pledged before the 2010 General Election to repeal the bill, stating that they oppose the parts that relate to the blocking of people's Internet connections, and that the Lib Dems would "take [disconnection] off the statute book and replace it with something better".
However, there was no reference to the Act in the Conservative – Liberal Democrat Coalition Agreement
written after the election.
and the British Association of Picture Libraries and Agencies
support the orphan works provision. 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. Attitudes of Internet Service Provider
s (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.
, 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". 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.
The High Court of Justice
granted the review permission on November 10, 2010. Mr Justice Kenneth Parker ruled in favour of the government on 20 April 2011. BT and TalkTalk sought permission to appeal the ruling, but were denied.
in February 2011 to review whether sections 17 and 18 of the Act on website blocking are technically workable.
Following the review by Ofcom, the Government announced on the 3rd of August 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.
finds that the Digital Economy Act as written, gets the balance between copyright enforcement and innovation wrong. It finds that overall, peer-to-peer technology has many legitimate benefits and therefore, should be encouraged to promote new innovative applications. Also, its research shows that not only is the amount of revenue estimated to be lost due to illegal file sharing to be “wishful thinking” but the approach put forward in the Bill as being both an expensive and ineffective way to control rights for the now out-of-date business models that lobby for it. Rather, it suggests that “hassle-free” gateways to legal music downloading is more effective way of protecting copyrights. At the same time, preserving file sharing will encourage rather than discourage innovation in the music industry rather than stifle it in the way that the unaltered Act would, which the very opposite of what this Bill claims to encourage.
, announced by Prime Minister David Cameron
in November 2010 and published in May 2011, noted that in relation to specifically copyright policy "there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes". According to the review lobbying by different interest groups is a feature of all political systems, and can bring benefits by informing the debate, though in relation to the Digital Economy Act the review makes the following observation:
According to the review much of the research on copyright is undertaken by private entities and is published chiefly in the form of "evidence" supporting the arguments of lobbyists, something the review terms "lobbynomics". The review notes that during the call for evidence it did not "find a single UK survey that is demonstrably statistically robust" on the levels of online copyright infringement in the UK. It noted that the significant differences in levels of online copyright infringement found by different surveys "confirm the impression of unstable research conditions". The review team examined more than 20 studies on the level of online copyright infringement and its impact on the UK economy, saying that where the methodology was available for examination, problems had been found in all cases. Consequently the review team has "not found either a figure for the prevalence and impact of piracy worldwide or for the UK in which we can place our confidence".
According to the review the existing economic research indicates that stronger enforcement of copyright alone is not adequate to address the issue of copyright infringement
. The review recommends that the UK government adopts a combination of four approaches to address copyright infringement, involving the modernisation of copyright law, education, enforcement, and by encouraging "open and competitive markets in licensed digital content, which will result in more legitimate digital content at prices which appeal to consumers". In relation to the online copyright infringement provisions of the Digital Economy Act the review recommends that the implementation of these measures "should be carefully monitored so that the approach can be adjusted in the light of evidence." According to the review it is especially important that the impact of education and enforcement is carefully monitored and their impact properly understood. Otherwise "resource will be wasted and further harm may be done to the interests of everyone concerned".
(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.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
regulating digital media. Introduced by Peter Mandelson, Lord Mandelson
Peter Mandelson
Peter Benjamin Mandelson, Baron Mandelson, PC is a British Labour Party politician, who was the Member of Parliament for Hartlepool from 1992 to 2004, served in a number of Cabinet positions under both Tony Blair and Gordon Brown, and was a European Commissioner...
, it received Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 8 April 2010, and came into force on 8 June 2010 (with the exception of certain sections that came into force on 8 April; and certain other sections that will be brought into force by statutory instrument
Statutory Instrument
A Statutory Instrument is the principal form in which delegated or secondary legislation is made in Great Britain.Statutory Instruments are governed by the Statutory Instruments Act 1946. They replaced Statutory Rules and Orders, made under the Rules Publication Act 1893, in 1948.Most delegated...
).
The act has been subject to judicial, parliamentary and regulatory review since coming into force.
Section 3 to 16
The Act's provisions against the act of copyright infringementCopyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
proved controversial. It establishes a system of law which aims to first increase the ease of tracking down and suing persistent infringers, and after a minimum of one year permit the introduction of "technical measures" to reduce the quality of, or potentially terminate, those infringers' Internet connections. It also creates a new ex-judicial process to handle appeals.
The new process, which will come into force when Ofcom
Ofcom
Ofcom is the government-approved regulatory authority for the broadcasting and telecommunications industries in the United Kingdom. Ofcom was initially established by the Office of Communications Act 2002. It received its full authority from the Communications Act 2003...
's regulatory code is approved by Parliament, begins with rightsholders gathering lists of Internet Protocol
Internet Protocol
The Internet Protocol is the principal communications protocol used for relaying datagrams across an internetwork using the Internet Protocol Suite...
addresses which they believe have infringed their copyrights. (This data could be gathered most easily by a rightsholder connecting to a Peer-to-Peer
Peer-to-peer
Peer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
download of a work they own, and noting the other IP addresses to which their computer connects.) They would then send each IP number to the appropriate Internet Service Provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
(newly-defined in the Act as a provider of IP addresses) along with a "copyright infringement report".
The ISP must then send a notification to the subscriber in question. The conditions under which this is required (i.e. the standard of evidence required) are not specified in the Act, but left to Ofcom's regulatory code. The receipt of the infringement report and its recipient are noted by the ISP, if valid, but no further action is taken.
The next stage in proceedings involves the rightsholder requesting a "copyright infringement list" from the ISP. This contains an anonymous list of all subscribers who have "reached the threshold set in the [Ofcom] code" with regard to infringement reports for their works. The rightsholder can then approach a judge to gain a court order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
to identify some or all of the subscribers on the list, and with that information launch standard copyright infringement litigation against them.
Ofcom's code
Most operational details of the copyright infringement provisions are not defined in the Act, but left to a series of regulatory codes produced by Ofcom
Ofcom
Ofcom is the government-approved regulatory authority for the broadcasting and telecommunications industries in the United Kingdom. Ofcom was initially established by the Office of Communications Act 2002. It received its full authority from the Communications Act 2003...
. The Act defines only the utmost limits within which these codes can work. On May 28, 2010 Ofcom published a draft initial obligations code for consultation.
According to the Act Ofcom must produce "progress reports" once every three months on the levels of copyright infringement in the country, with a larger report coming once every 12 months.
Technical measures
After Ofcom's code has been in force for one year, the Secretary of State
Secretary of State (United Kingdom)
In the United Kingdom, a Secretary of State is a Cabinet Minister in charge of a Government Department ....
becomes able to lay down an order for ISPs to impose "technical measures" on subscribers who meet the copyright infringement report threshold (see above). These measures may limit Internet access in any way, including suspending it entirely. Unlike other areas of the Act Ofcom do not produce a code that defines what the measures are (though they are responsible for enforcing them): instead the Secretary of State decides all specifics, needing only to "take into account" Ofcom's recommendations.
Appeals
The Act requires the provision of an independent appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
s process, covering the grounds on which infringement reports are made. Cases are heard by a body set up by Ofcom
Ofcom
Ofcom is the government-approved regulatory authority for the broadcasting and telecommunications industries in the United Kingdom. Ofcom was initially established by the Office of Communications Act 2002. It received its full authority from the Communications Act 2003...
, or if a technical measure has been applied a First-tier Tribunal
First-tier Tribunal
The First-tier Tribunal is part of the administrative justice system of the United Kingdom. It was created in 2008 as part of a programme, set out in the Tribunals, Courts and Enforcement Act 2007, to rationalise the tribunal system, and has since taken on the functions of twenty previously...
.
Unlike in judicial appeals, the subscriber is innocent until proven guilty: the Act states that "an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or internet service provider shows that a) the apparent infringement was an infringement of copyright, and b) the report relates to the subscriber’s IP address at the time of that infringement". An appeal will also succeed if the subscriber can show that the rightsholder or ISP broke Ofcom's regulatory code in any way.
Obligations on ISPs and copyright holders
The Act gives Ofcom the responsibility of enforcing ISPs' obligations. A fine of up to £250,000 can be levied on ISPs in contravention; that limit can be raised by the Secretary of State with Parliament's consent.
The Act also allows the Secretary of State to define, with the consent of Parliament, the "sharing of costs" incurred from the Act's legal processes. The order can require reimbursements to be made by rightsholders and/or ISPs, and in the case of appeals, subscribers.
Section 17 and 18 - Blocking Internet locations
The Act allows the Secretary of State - with the consent of the Lord ChancellorLord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, upper
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
and lower houses of Parliament and a court of law - to block access to a location on the Internet "from which a substantial amount of material has been, is being or is likely to be made available in infringement of copyright", or a location which "facilitates" such behaviour.
In deciding whether to grant an injunction, the court is 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
The Secretary of State must be satisfied before making the request that the location is "having a serious adverse effect on businesses or consumers", that the injunction "is a proportionate way to address that effect", and that "making the regulations would not prejudice national security or the prevention or detection of crime".
Other provisions
Other provisions in the Act include an amendment to the Copyright, Designs and Patents Act 1988Copyright, Designs and Patents Act 1988
The Copyright, Designs and Patents Act 1988 , also known as the CDPA, is an Act of the Parliament of the United Kingdom which received Royal Assent on 15 November 1988. It reformulates almost completely the statutory basis of copyright law in the United Kingdom, which had, until then, been...
to increase the criminal liability for "making or dealing with infringing articles" and "making, dealing with or using illicit recordings" to a maximum of £50,000, so long as it is done during the course of a business.
Regulation of content is also in the Act, which adopts the Pan European Game Information
Pan European Game Information
Pan European Game Information is a European video game content rating system established to help European parents make informed decisions on buying computer games with logos on games boxes. It was developed by the Interactive Software Federation of Europe and came into use in April 2003; it...
(PEGI) standard for video game ratings. The UK government is also able directly to intervene to control the use of the UK's domain name space, currently overseen by the independent body Nominet.
The Act also includes changes to DAB radio in the United Kingdom
Digital radio in the United Kingdom
In the United Kingdom, the roll-out of digital radio is proceeding since test transmissions were started by the BBC in 1990. The UK currently has the world's biggest digital radio network, with 103 transmitters, two national DAB ensembles and 48 local and regional DAB ensembles...
including the reorganisation and merging of some of the local DAB ensemble
DAB ensemble
DAB ensembles are groups of Digital audio broadcasting broadcasters transmitting multiple digital radio channels on a single radio transmission....
s and a requirement for a digital switchover of terrestrial radio in the United Kingdom.
Further measures included:
- The management of
.ukInternet domain registries.uk.uk is the Internet country code top-level domain for the United Kingdom. , it is the fourth most popular top-level domain worldwide , with over 9.5 million registrations.... - The functions of the Channel Four Television Corporation
- The regulation of television and radio services
- The regulation of the use of the electromagnetic spectrum
- The Video Recordings Act 1984Video Recordings Act 1984The Video Recordings Act 1984 is an Act of the Parliament of the United Kingdom that was passed in 1984. It states that commercial video recordings offered for sale or for hire within the UK must carry a classification that has been agreed upon by an authority designated by the Home Office...
- Public lending right in relation to electronic publications (Authors receive a 10p royalty for physical books lent from UK libraries but not ebooks. This act extends that royalty to cover some ebooks and audio books lent by libraries electronically. However the appropriate legislation has not yet been amended for this to take place. http://www.plr.uk.com/registrationservice/faq.htm#sound )
History
The Digital Economy Act followed the Digital BritainDigital Britain
The Digital Britain report was a policy document published in 2009, which outlined the United Kingdom Government's strategic vision for ensuring that the country is at the leading edge of the global digital economy....
report of 2009, a policy document which outlined the United Kingdom Government's strategic vision for its digital economy. Lord Carter, the former Digital Britain minister and Downing Street special adviser spent eight months considering the matter along with 25 civil servants for the report, released in June 2009. However, the proposed bill reversed Lord Carter's recommendation against cutting off internet access for alleged copyright infringement. The Digital Economy Bill was announced in the 2009 Queen's Speech
Speech from the Throne
A speech from the throne is an event in certain monarchies in which the reigning sovereign reads a prepared speech to a complete session of parliament, outlining the government's agenda for the coming session...
before the United Kingdom parliament. The first reading of the bill was presented to the House of Commons of the United Kingdom on 16 March 2010. The bill received its second reading on the 6 April 2010 in a Commons debate and was given support by the Conservative
Conservative Party (UK)
The Conservative Party, formally the Conservative and Unionist Party, is a centre-right political party in the United Kingdom that adheres to the philosophies of conservatism and British unionism. It is the largest political party in the UK, and is currently the largest single party in the House...
front bench and as expected was not debated at length in the Commons, and was instead pushed through in the wash-up period
Wash-up period
The wash-up period is the last few days while a Parliament of the United Kingdom continues to sit after the Prime Minister has announced the date when Parliament will be dissolved so a general election can be held but before Parliament has been formally adjourned, prorogued or...
. It passed third reading on 7 April with Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
granted on 8 April. As of 12 June 2010, the Act is now in force.
Decision to include technical measures in the bill
In August 2009 Lord Mandelson has been accused of caving into 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. The IndependentThe Independent
The Independent is a British national morning newspaper published in London by Independent Print Limited, owned by Alexander Lebedev since 2010. It is nicknamed the Indy, while the Sunday edition, The Independent on Sunday, is the Sindy. Launched in 1986, it is one of the youngest UK national daily...
reported that according their Whitehall sources First Secretary of State Peter 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. The paper also reported that this included a meeting with DreamWorks
DreamWorks
DreamWorks Pictures, also known as DreamWorks, LLC, DreamWorks SKG, DreamWorks II Distribution Co., LLC, DreamWorks Studios or DW Studios, LLC, is an American film studio which develops, produces, and distributes films, video games and television programming...
co-founder David Geffen
David Geffen
David Geffen is an American record executive, film producer, theatrical producer and philanthropist. Geffen is noted for creating Asylum Records in 1970, Geffen Records in 1980, and DGC Records in 1990...
at the Rothschild
Rothschild
Rothschild is a common German surname. It is a habitational name from a house distinguished with a red shield , the earliest recorded example dating from the 13th century...
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. The Times
The Times
The Times is a British daily national newspaper, first published in London in 1785 under the title The Daily Universal Register . The Times and its sister paper The Sunday Times are published by Times Newspapers Limited, a subsidiary since 1981 of News International...
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
Digital Britain
The Digital Britain report was a policy document published in 2009, which outlined the United Kingdom Government's strategic vision for ensuring that the country is at the leading edge of the global digital economy....
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. At the time Mandelson denied that the two events were linked.
In August 2011 a Freedom of Information
Freedom of information
Freedom of information refers to the protection of the right to freedom of expression with regards to the Internet and information technology . Freedom of information may also concern censorship in an information technology context, i.e...
(FOI) request showed that Lord Mandelson had decided to approve the inclusion of technical measures, such as the disconnection of internet access, at least two months before public consultation had finished, and that he had shown little interest in the consultation. Letters from Lord Mandelson's office document talks with Lucian Grainge
Lucian Grainge
Lucian Grainge, CBE is a British music industry executive who is the current Chairman and CEO of the Universal Music Group.-Career:Lucian Grainge grew up in northern London. In 1982 he became the director of RCA Music Publishing. Two years later he became an A&R director for MCA Records...
, CEO of Universal Music Group
Universal Music Group
Universal Music Group is an American music group, the largest of the "big four" record companies by its commanding market share and its multitude of global operations...
on the 2 June 2009, and that on the following day Lord Mandelson advised Lord Carter
Lord Carter
Lord Carter may refer to* Denis Carter, Baron Carter of Devizes * Patrick Carter, Baron Carter of Coles * Stephen Carter, Baron Carter of Barnes See also* Mark Bonham Carter, Baron Bonham-Carter...
about the "possibility of [the Secretary of State] having a power to direct Ofcom to go directly to introduce technical measures". Mandelson made the formal announcement that technical measures, including disconnection, were to be included in the Digital Economy Bill two months later on the 7 August 2009.
Wash-up
After the general election had been called, and before the dissolution of parliament the Digital Economy Bill entered what is called wash-upWash-up period
The wash-up period is the last few days while a Parliament of the United Kingdom continues to sit after the Prime Minister has announced the date when Parliament will be dissolved so a general election can be held but before Parliament has been formally adjourned, prorogued or...
. The wash-up is an accelerated parliamentary process used after general elections have been called to rush unopposed legislation through parliament before dissolution. During the wash-up Conservative and Liberal Democrats introduced Clause 17 on website blocking for copyright infringement into the bill. Clause 17 was initially proposed by Liberal Democrats in the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, however Liberal Democrat parliamentarians subsequently tried to retract the amendment. Clause 17 was further amended in wash-up and became law as Sections 17 and 18 of the Act. Website blocking was not part of the approach proposed in the Digital Britain
Digital Britain
The Digital Britain report was a policy document published in 2009, which outlined the United Kingdom Government's strategic vision for ensuring that the country is at the leading edge of the global digital economy....
Report. 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.
Criticism of copyright infringement provisions
The Secretary of State Lord Mandelson was widely believed to be responsible for the copyright infringement provisions that would see the disconnection of internet connections associated with copyright infringement by copyright owners. The provision of the bill which gives the Secretary of State the power to introduce such technical measures were highly controversial and were criticised by digital rights campaigners. Jim Killock, executive director of the Open Rights GroupOpen Rights Group
The Open Rights Group is a UK-based organisation that works to preserve digital rights and freedoms by campaigning on digital rights issues, acting as a media clearinghouse service putting journalists in touch with experts, and by fostering a community of grassroots activists...
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".
The Open Rights Group, privacy and consumer rights organisations criticised the online copyright infringement provisions of the bill, now section 3 to 18 of the Act, due partly to its proposal of a graduated response
Graduated response
Graduated response, also known as three strikes, is an approach, adopted in several countries, aimed at addressing online copyright infringement....
scheme, which may (if regulators and parliament feel the Act is not having enough impact) eventually reach as far as disconnecting Internet accounts used for persistent copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
. The Group took their concerns to the House of Lords. Concerns have also been raised about the impact on businesses offering Internet access to their customers, such as libraries and universities.
38 Degrees
38 Degrees
38 Degrees is a UK non-profit, progressive, political activism organisation that campaigns on a diverse range of issues, such as protecting the environment and tackling climate change, democratic media ownership, child poverty and political reform...
, who worked with the Open Rights Group
Open Rights Group
The Open Rights Group is a UK-based organisation that works to preserve digital rights and freedoms by campaigning on digital rights issues, acting as a media clearinghouse service putting journalists in touch with experts, and by fostering a community of grassroots activists...
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. More than 35,000 people signed a Number 10 petition, started by Andrew Heaney at ISP TalkTalk
TalkTalk
TalkTalk is a pay television, telecommunications and internet service provider company headquartered in London, United Kingdom...
, objecting to being disconnected without fair trial. Over 100 people protested outside Parliament on 24 March 2010, including Labour MPs Tom Watson
Tom Watson (politician)
Thomas Anthony Watson is a British Labour Party politician, who has been the Member of Parliament for West Bromwich East since 2001. Watson was a Parliamentary Secretary for the Cabinet Office from 2008 to 2009...
and John Grogan, Liberal Democrat
Liberal Democrats
The Liberal Democrats are a social liberal political party in the United Kingdom which supports constitutional and electoral reform, progressive taxation, wealth taxation, human rights laws, cultural liberalism, banking reform and civil liberties .The party was formed in 1988 by a merger of the...
prospective parliamentary candidate
Prospective parliamentary candidate
Prospective parliamentary candidate is a term used in British politics to refer to candidates selected by political parties to fight individual constituencies in advance of a general election. This terminology was motivated by the strict limits on the amount of expenses incurred by an actual...
Bridget Fox, and writer and activist Cory Doctorow
Cory Doctorow
Cory Efram Doctorow is a Canadian-British blogger, journalist, and science fiction author who serves as co-editor of the blog Boing Boing. He is an activist in favour of liberalising copyright laws and a proponent of the Creative Commons organization, using some of their licences for his books...
.
TalkTalk
TalkTalk
TalkTalk is a pay television, telecommunications and internet service provider company headquartered in London, United Kingdom...
, Britain's second-largest ISP, has been a vociferous critic of the Act. They opposed it from its earliest stages by staging media events, 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"). 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".
Political opposition
The UK's three major parties played a part in the passing of the bill into law, the Pirate Party UKPirate Party UK
Pirate Party UK is a political party in the United Kingdom. The Pirate Party's core policies are to bring about reform to Copyright and Patent laws, support privacy and reduce surveillance from government and businesses, and guarantee genuine freedom of speech for everyone.The Pirate Party UK...
were strongly opposed to it. The Green Party
Green Party of England and Wales
The Green Party of England and Wales is a political party in England and Wales which follows the traditions of Green politics and maintains a strong commitment to social progressivism. It is the largest Green party in the United Kingdom, containing within it various regional divisions including...
, 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."
The Liberal Democrats
Liberal Democrats
The Liberal Democrats are a social liberal political party in the United Kingdom which supports constitutional and electoral reform, progressive taxation, wealth taxation, human rights laws, cultural liberalism, banking reform and civil liberties .The party was formed in 1988 by a merger of the...
pledged before the 2010 General Election to repeal the bill, stating that they oppose the parts that relate to the blocking of people's Internet connections, and that the Lib Dems would "take [disconnection] off the statute book and replace it with something better".
However, there was no reference to the Act in the Conservative – Liberal Democrat Coalition Agreement
Conservative – Liberal Democrat Coalition Agreement
The Conservative – Liberal Democrat Coalition Agreement was a policy document drawn up following the 2010 general election in the United Kingdom...
written after the election.
Support
The Design and Artists Copyright SocietyDesign and Artists Copyright Society
The Design and Artists Copyright Society is a UK not-for-profit rights management organisation that exists to collect and distribute royalties to visual artists....
and the British Association of Picture Libraries and Agencies
British Association of Picture Libraries and Agencies
BAPLA is the trade association of UK based photographic image suppliers, commercial picture libraries and agencies.-History:The association was formed in 1975 with founding members: Getty Images, Robert Harding World Imagery, Aspect Picture Library, FLPA - Images of Nature, Camera Press, BBC Photo...
support the orphan works provision. The Community Media Association
Community Media Association
The Community Media Association is the UK membership association for community broadcasting. Founded in 1983, the CMA is a non-profit making organisation, supporting Community Radio and Television and community-based Internet projects...
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. Attitudes of Internet Service Provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
s (ISPs) towards the copyright infringement provisions in the bill were mixed. In interviews with ISPs by TechRadar, Virgin Media
Virgin Media
Virgin Media Inc. is a company which provides fixed and mobile telephone, television and broadband internet services to businesses and consumers in the United Kingdom...
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
British Sky Broadcasting
British Sky Broadcasting Group plc is a satellite broadcasting, broadband and telephony services company headquartered in London, United Kingdom, with operations in the United Kingdom and the Ireland....
, 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.
Judicial review
On July 8, 2010 TalkTalk were joined by BTBT Group
BT Group plc is a global telecommunications services company headquartered in London, United Kingdom. It is one of the largest telecommunications services companies in the world and has operations in more than 170 countries. Through its BT Global Services division it is a major supplier of...
, Britain's biggest ISP, in seeking a judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of the Act on the grounds of it receiving "insufficient scrutiny" and having the potential to "harm citizens and impact both businesses". 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.
The High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
granted the review permission on November 10, 2010. Mr Justice Kenneth Parker ruled in favour of the government on 20 April 2011. BT and TalkTalk sought permission to appeal the ruling, but were denied.
Parliamentary inquiry
On 10 November 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".Ofcom review of sections 17 and 18
Following calls by citizens to repeal all or part of the Digital Economy Act on the Your Freedom website, the government asked OfcomOfcom
Ofcom is the government-approved regulatory authority for the broadcasting and telecommunications industries in the United Kingdom. Ofcom was initially established by the Office of Communications Act 2002. It received its full authority from the Communications Act 2003...
in February 2011 to review whether sections 17 and 18 of the Act on website blocking are technically workable.
Following the review by Ofcom, the Government announced on the 3rd of August 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
Copyright, Designs and Patents Act 1988
The Copyright, Designs and Patents Act 1988 , also known as the CDPA, is an Act of the Parliament of the United Kingdom which received Royal Assent on 15 November 1988. It reformulates almost completely the statutory basis of copyright law in the United Kingdom, which had, until then, been...
had been successfully used to block access to a website on the grounds of copyright infringement.
LSE report
A report by the London School of Economics and Political ScienceLondon School of Economics
The London School of Economics and Political Science is a public research university specialised in the social sciences located in London, United Kingdom, and a constituent college of the federal University of London...
finds that the Digital Economy Act as written, gets the balance between copyright enforcement and innovation wrong. It finds that overall, peer-to-peer technology has many legitimate benefits and therefore, should be encouraged to promote new innovative applications. Also, its research shows that not only is the amount of revenue estimated to be lost due to illegal file sharing to be “wishful thinking” but the approach put forward in the Bill as being both an expensive and ineffective way to control rights for the now out-of-date business models that lobby for it. Rather, it suggests that “hassle-free” gateways to legal music downloading is more effective way of protecting copyrights. At the same time, preserving file sharing will encourage rather than discourage innovation in the music industry rather than stifle it in the way that the unaltered Act would, which the very opposite of what this Bill claims to encourage.
Hargreaves Review of Intellectual Property and Growth
The Hargreaves Review of Intellectual Property and GrowthHargreaves Review of Intellectual Property and Growth
The Hargreaves Review of Intellectual Property and Growth, or Digital Opportunity - A review of Intellectual Property and Growth, was an independent review of the United Kingdom's intellectual property system, focusing on UK copyright law...
, announced by Prime Minister David Cameron
David Cameron
David William Donald Cameron is the current Prime Minister of the United Kingdom, First Lord of the Treasury, Minister for the Civil Service and Leader of the Conservative Party. Cameron represents Witney as its Member of Parliament ....
in November 2010 and published in May 2011, noted that in relation to specifically copyright policy "there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes". According to the review lobbying by different interest groups is a feature of all political systems, and can bring benefits by informing the debate, though in relation to the Digital Economy Act the review makes the following observation:
"The passage of the Digital Economy Act 2010 exemplifies the environment in which copyright policy is made. Very significant parts of the Digital Economy Bill, which was introduced to Parliament towards the end of the previous Government’s term, were lost or amended during its passage into law. This was partly a matter of unfortunate timing: a Government facing an imminent general election is ill placed to withstand pressures to amend legislation to get it through. The fact that the DEA’s legality was subsequently contested in court by two large UK companies, BT and TalkTalk, indicates the absence of business consensus. Lord Puttnam, a major figure in the UK creative industries, commented at the time: “We have been subjected to an extraordinary degree of lobbying... The lobbying process that has gone into this Bill has been quite destructive and has done none of us very much help at all”."
According to the review much of the research on copyright is undertaken by private entities and is published chiefly in the form of "evidence" supporting the arguments of lobbyists, something the review terms "lobbynomics". The review notes that during the call for evidence it did not "find a single UK survey that is demonstrably statistically robust" on the levels of online copyright infringement in the UK. It noted that the significant differences in levels of online copyright infringement found by different surveys "confirm the impression of unstable research conditions". The review team examined more than 20 studies on the level of online copyright infringement and its impact on the UK economy, saying that where the methodology was available for examination, problems had been found in all cases. Consequently the review team has "not found either a figure for the prevalence and impact of piracy worldwide or for the UK in which we can place our confidence".
According to the review the existing economic research indicates that stronger enforcement of copyright alone is not adequate to address the issue of copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
. The review recommends that the UK government adopts a combination of four approaches to address copyright infringement, involving the modernisation of copyright law, education, enforcement, and by encouraging "open and competitive markets in licensed digital content, which will result in more legitimate digital content at prices which appeal to consumers". In relation to the online copyright infringement provisions of the Digital Economy Act the review recommends that the implementation of these measures "should be carefully monitored so that the approach can be adjusted in the light of evidence." According to the review it is especially important that the impact of education and enforcement is carefully monitored and their impact properly understood. Otherwise "resource will be wasted and further harm may be done to the interests of everyone concerned".
Cost of implementation
In response to a Freedom of InformationFreedom of information
Freedom of information refers to the protection of the right to freedom of expression with regards to the Internet and information technology . Freedom of information may also concern censorship in an information technology context, i.e...
(FOI) request Ofcom
Ofcom
Ofcom is the government-approved regulatory authority for the broadcasting and telecommunications industries in the United Kingdom. Ofcom was initially established by the Office of Communications Act 2002. It received its full authority from the Communications Act 2003...
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.
See also
- Internet censorship in the United KingdomInternet censorship in the United KingdomInternet censorship in the United Kingdom takes various forms, including blocking access to sites, and laws that criminalise publication or possession of certain material, particularly child pornography, within the United Kingdom.The U.K...
- British Phonographic IndustryBritish Phonographic IndustryThe British Phonographic Industry is the British record industry's trade association.-Structure:Its membership comprises hundreds of music companies including all four "major" record companies , associate members such as manufacturers and distributors, and hundreds of independent music companies...
(BPI) - International Federation of the Phonographic Industry (IFPI)
Related international law
- EU Copyright DirectiveCopyright DirectiveThe Copyright Directive , is a directive of the European Union enacted to implement the WIPO...
(European UnionEuropean UnionThe European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
) - DADVSIDADVSIDADVSI is the abbreviation of the French Loi sur le Droit d’Auteur et les Droits Voisins dans la Société de l’Information...
& HADOPI lawHADOPI lawThe French HADOPI law or Creation and Internet law was introduced during 2009 as a means to control and regulate internet access and encourage compliance with copyright laws...
(FranceFranceThe French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
) - Digital Millennium Copyright ActDigital Millennium Copyright ActThe Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
(USA)
External links
- Telecommunications Plc & Anor, R (on the application of) v The Secretary of State for Business, Innovation and Skills [2011] EWHC 1021 (Admin) (20 April 2011)