Ofcom publishes second draft code for Digital Economy Act

The regulator is sticking to its 'three strikes' policy for dealing with illegal file-sharers

The communications regulator Ofcom has published a second draft code of practice for the implementation of the controversial Digital Economy Act, reinforcing its support for a 'three strikes' policy for illegal downloaders.

The revised code is largely unchanged from the original draft, published in 2010. Essentially, it requires internet service providers (ISPs) to send letters to customers, informing them when their account has been connected to reports of suspected online copyright infringement.

If a customer receives three letters in a year, anonymous information may be provided to copyright owners, showing them which infringement reports are linked to that customer's account. The copyright owner can then seek to take legal action for infringement under the Copyright Designs and Patent Act 1988.

One revision to the code states that copyright owners' procedures for gathering evidence of infringement must now be approved by Ofcom, rather than by the copyright owners themselves. Ofcom plans to sponsor the development of a publicly-available standard to help promote good practice in evidence gathering.

Ofcom has also decided that subscribers should have 20 working days to appeal an allegation of infringement. Following a direction from the government, Ofcom has removed the ability for subscribers to appeal on any grounds they choose. They must now do so on grounds specified in the Digital Economy Act.

Responding to the news, Jim Killock, executive director of the Open Rights Group - a long term opponent of the Digital Economy Act - branded the appeals process "a joke".

"Digital revenues are going up, the music and film industry are moving in the right direction, yet this cumbersome policy is still lumbering forward," said Killock. "Ofcom are being asked to put lipstick on a pig with this code."

"The government has decided that 'I didn't do it' is not a defence. Some people will almost certainly end up in court having done nothing wrong."

Ofcom said that copyright owners are expected to invest in awareness campaigns to help educate consumers about the impact of copyright infringement, and direct them to licensed content on the internet. They must also work to develop attractive online services to offer their content.

"These measures are designed to foster investment and innovation in the UK's creative industries, while ensuring internet users are treated fairly and given help to access lawful content," said Claudio Pollack, Ofcom's consumer group director.

"Ofcom will oversee a fair appeals process, and also ensure that rights holders' investigations under the code are rigorous and transparent."

The regulator will now consult on the revised draft code for one month. It will then be submitted to the European Union for approval - which involves a three-month consultation - before the Act can be passed and become law.

Ofcom expects the code to be laid in Parliament around the end of 2012, and the first customer notification letters to be sent in early 2014. The criteria for applying the code to ISPs will be reviewed once the obligations have been up and running for six months, it said.

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