The Digital Economy Bill continues to create waves as its controversial provisions aimed at reducing online copyright infringement are revealed.
The draft Bill, published at the end of 2009 and due to become law by the summer of 2010 has receiving mixed reviews regarding its content. While the aims of the Government to reduce illegal file sharing have been generally welcomed, the provisions in their current draft form are facing some fierce criticism both in and out of Parliament. The criticism includes opposition to aspects of the Bill coming from Yahoo, eBay and Google.
Controversial New Power for Secretary of State
Following publication of the Bill the end of November, objections were raised by the Conservative and the Liberal Democrat parties regarding Clause 17 of the Bill which gives the Secretary of State the power to amend the Copyright, Designs and Patents Act 1977 for the purposes of preventing or reducing online infringements. However this right is restricted to circumstances where it is appropriate to do so due to "technical developments". More worryingly for the Government however, are the complaints that have also been received from internet giants Google, Yahoo and eBay regarding the controversial provision.
The criticism for the provision is that it allows the Secretary of State to change the law without the change being subject to the same level of Parliamentary scrutiny as would otherwise be the case for an ordinary amendment to primary legislation.
It is now thought that following the extent of the opposition to the provision, the clause may now need to be "watered down". At present it is unclear how far any revision would go, or whether the provision will be removed altogether.
Fighting Online Copyright Infringement
Among provisions of the Bill which have been more positively received include an obligation on Internet Service Providers (ISPs) to take action against internet users who infringe copyright on a regular basis.
The Bill introduces two primary obligations on ISPs:-
- ISPs must send a notification to their users who persistently use websites which have been reported by copyright owners as being used primarily to infringe copyright. Such a notification would be sent to an infringing user once they pass a threshold of visits to certain blacklisted sites. The notification sent to the user will be in the form of a "Copyright Infringement Report" which must contain key elements, such as advice on how to download music legally from the internet.
- Secondly, ISPs must compile lists of its users who pass the threshold of visits to the blacklisted sites. Such lists could then be passed to copyright holders on an anonymous basis on request. This information could be used to by the copyright owners to firstly apply to the courts for disclosure of the names and addresses of those individuals on the list. Following disclosure, copyright owners would then be free to bring legal proceedings against those individuals for copyright infringement.
The government hopes that the measures will vastly reduce online copyright infringement due to users receiving direct warnings from their internet providers regarding their illegal online activity. However, in the event that further action is needed, the Bill contains a reserve power for the Secretary of State to introduce further provisions to tackle the problem.
The reserve power can be used by the Secretary of State to direct Ofcom to assess whether ISP's should be subject to further "technical obligations" should the problem of illegal file sharing not be reduced by a target of 70% by April 2011.
In the event that this milestone is not reached (which is thought to be probable) the "technical obligations" which Ofcom could introduce include the possibility that internet users could be cut off completely from using the internet. Persistent infringers could also see their internet access restricted or their connection speed reduced depending on the seriousness and frequency of the infringements.
To add another twist, the further measures that could be introduced by the reserve power have been criticised for possibly infringing users human rights. It has been suggested that monitoring and restricting users online activity, as contemplated by the Bill, could amount to a breach of individual's privacy and right to private life, protected by Article 8 of the European Convention on Human Rights. It is yet to be seen whether such objections will amount to a revision of the provision or whether a direct challenge will be mounted once the Bill becomes law.
Domain Name Registrations
Among other changes that the Bill introduces, is a provision to give the Government the ability to intervene in domain name registration disputes and registrations. The new power would allow the Secretary of State to intervene in ".uk" domain name registrations where there has been a misuse of domain name registration procedures and the registry has failed to deal adequately with the abuse.
Presently ".uk" domain registrations and disputes are handled and resolved by Nominet, making the industry self-regulating. And while the Government has said that is keen to continue self-regulation of the industry, it has also expressed the desire to ensure that regulation of the industry is maintained at a high level of scrutiny and consistency.
In accordance with these aims, the Bill introduces a provision which will enable the Secretary of State to intervene in cases where the registry has been unable to satisfactorily resolve a domain name registration dispute or where further measures are deemed to necessary for the wider public benefit.
Such abuses in which the Secretary of State may intervene are thought to include cybersquating, misleading domain names or spamming.
Conclusion
The Government faces a difficult task to balance the competing rights associated with online copyright infringement and other technological advancements. While it must be seen to be acting upon the ever-growing problem of illegal file sharing and keep the law in the sector flexible, this flexibility may come at heavy price to users online freedom.
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