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Digital Economy Act

Passed in 2010, the Digital Economy Act is intended to tackle copyright infringement. It proposes to do this through letters and sanctions against alleged individual infringers and by blocking access to websites. But it is so badly conceived that it threatens to disconnect innocent people from the internet if they are accused of infringement, and could undermine the availability of public WiFi. Following a review by Ofcom, the government announced on 3 August 2011 that it is impracticable to enforce the sections (17 and 18) that cover web blocking, and these are consequently being dropped as of February 2014. Websites can still be blocked under the Copyright, Designs, and Patents Act 1988.

On 6 March 2012, after two years of legal challenges brought by BT and TalkTalk, two of Britain's largest ISPs, the Court of Appeal opened the way for the government to implement the DEA. By the end of 2013, Ofcom had drafted the initial obligations code to implement the DEA's enforcement requirements. However, implementation was stalled by the Treasury, which said that the planned distribution of costs will not work and needs to be rethought (as predicted by TalkTalk's Andrew Heaney).

Background

The DEA is one of the most controversial pieces of legislation to have passed in recent years, both because of its provisions and because of the undemocratic way it was enacted (in haste, without debate, during the "wash-up" before Parliament disbanded for the 2010 general election). The gathering of data on subscribers' internet use is viewed as invasive and contrary to human rights by the Article 29 Working Party. Disconnection from the internet for those accused of infringing copyright represents a profound disruption of every part of their lives, from interactions with government to socialising with friends, and would affect everyone else sharing the same Internet connection.

The DEA specifies implementation of its copyright enforcement measures in two stages. In the first, known as "three strikes" or "graduated response", ISPs will be required to match their customer data against data gathered by rightsholders about those believed to be sharing unauthorised copies of music, TV shows, and movies and send warning letters to the subscribers who are so identified. After a set number of letters – generally expected to be three – subscribers will be taken to court for copyright infringement.

Implementation moves on to the second stage if the Secretary of State believes, after a year or more, that the amount of online copyright infringement is not decreasing as intended. In the second stage, subscribers will be subject to technical measures ranging from slowed-down internet access to complete disconnection. Subscribers have the right to appeal against letters and technical measure, but may only argue that they did not commit the infringement and had taken reasonable steps to prevent others from infringing using their service. Until or unless they are taken to court, subscribers cannot argue that the material they're accused of sharing was not copyright or that they were not the guilty parties.

A significant technical difficulty is that the identification of internet users is shaky: rightsholders rely on the numbered identifier known as an "IP address" (for Internet Protocol) that is assigned to each device that accesses the internet. Often that device is a single computer, but in many cases the device is a router behind which dozens of machines may operate. Any network can be broken into, and open wireless networks can be used by anyone. In either case, a network owner can be wrongly made liable. The upshot is that there will be misidentifications and errors, and the undesirable knock-on effect will be deterring the operation of open wifi connections.

The policies underlying the DEA were published as the Digital Britain report in 2009, which recommended against technical measures to block copyright infringement such as "three strikes" and website blocking. Nonetheless, "three strikes" disconnection provisions were included in the final bill, which was still awaiting passage when the 2010 general election was called. The DEA was passed in two hours during this period, known as the "wash-up" when unopposed legislation is passed quickly before Parliament is dissolved. At the last minute, clauses introducing website blocking for copyright infringement were added. Fewer than one-tenth of MPs voted the DEA into law.

Once in power, the coalition government dropped the website blocking clauses after Ofcom reported they were unworkable. However, website blocking remains legally possible under the Copyright, Designs, and Patents Act 1988. In May 2011, the Hargreaves Review of Intellectual Property and Growth cited the passage of the DEA as an example of the distortion of public policy by questionable evidence.

In July 2010, BT and TalkTalk requested a judicial review, arguing that the DEA disproportionately conflicted with internet users' basic rights and freedoms under EU law, that it was insufficiently scrutinised in Parliament before its hasty passage, and that ISPs should not have to bear the costs of enforcement. In April 2011, the judicial review found in favour of the government. On 6 March 2012, the ISPs' appeal failed on all but one ground, that of costs. ISPs will be required to pay their allocated 25 percent share of Ofcom's costs of setting up an appeals body, but will not be required to pay 25 percent of the costs of sending out letters to subscribers.

 

ORG's view

The Open Rights Group has consistently opposed this flawed law and would like to see it repealed and replaced with proportionate, evidence-based policies fit for the digital age. ORG believes that freedom of expression, creativity, and innovation are important goals, but that aggressive enforcement of today's outdated and inflexible copyright laws, like the measures included in the DEA, undermine our privacy and freedom of expression and shut off the economic benefits of innovative uses of new technology. Since the DEA was passed, at a hearing on the Hargreaves Report on intellectual property and copyright, civil servant Adrian Brazier, the head of the DEA implementation team, has admitted that the government's impact assessment was not based on new or independent evidence or research, and that rightsholders did not allow detailed inspection of the methodology and workings of the evidence they offered.

When it published its revised initial obligations code in June 2012, Ofcom accepted some of ORG's concerns, ORG continues to advocate for changes that would address our remaining concerns: the impact on open WiFi,  the standard of evidence rightsholders must meet and transparency of the means by which it is collected, the definition of "internet service provider", and the limitations on appeals by accused infringers.

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