The Digital Economy Act is a law passed in 2010 that is designed to tackle copyright infringement. It proposes to do this through letters and sanctions against alleged individual infringers and the blocking of access to websites. But it is so badly conceived that it threatens to lead to people who are innocent being accused of infringement, could lead to their internet account being disconnected, and could undermine the availability of public WiFi. ORG has consistently opposed this flawed law and would like to see it repealed and replaced with proportionate, evidence-based policies fit for the digital age.
After two years of legal challenges brought by two of Britain's largest ISPs, BT and TalkTalk, on 6 March 2012 the Court of Appeal opened the way for the government to implement the controversial Digital Economy Act 2010. Barring a further appeal to the Supreme Court, the government is now free to proceed with a copyright enforcement regime that may see thousands of British internet users disconnected without ever having been convicted of a crime. The next step will be the release of Ofcom's initial obligations code outlining the actions ISPs must take.
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 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.
Much depends on the contents of the so far unpublished obligations code, which will contain the substantive details of how the letter writing scheme will work and how rightsholders will gather evidence of infringement. The concerns to date (March 2012) are that Ofcom did not set a standard of evidence rightsholders had to meet, that accused infringers will have to pay a £20 appeals fee, and that the wording of these letters may include advice that misleads consumers about the consequences. How the code will treat public bodies, schools, cafes, and libraries offering open wifi is unknown.
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. 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 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 in the DEA.
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.
The Open Rights Group believes that freedom of expression, creativity, and innovation, 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.
What you can do: