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Ofcom gives details of three-strikes process in draft code

Ofcom proposes the first steps towards a practical implementation of the Digital Economy Act and dealing with downloaders

Ofcom has published a draft code for the first stages of the Digital Economy Act's implementation, describing how copyright holders and ISPs will identify suspected unlawful file-sharers.

The draft initial obligations code was revealed on Friday and is open to consultation until 30 July. It confirms early reports that suggested ISPs with fewer than 400,000 customers, as well as mobile operators, would not have to participate in the copyright crackdown for now. The draft also confirms that three notifications will be sent to suspected file-sharers before their details are passed back to rights holders for further action, and it also provides some clarity around the issue of operating open Wi-Fi networks.

The initial obligations code will not cover the penalties for unlawful file-sharing, which might include bandwidth throttling or account suspension — these sanctions will be a matter for the business secretary to establish, once infringement notifications have been tried out for a year.

According to the draft code, rights holders will send ISPs copyright infringement reports (CIR), indicating the levels of infringement on their networks and listing the details of those thought to be responsible. These details, including the relevant IP address, port number and the start and end of the relevant session, would have to be sent to the ISP within 10 working days of the evidence being gathered.

CIRs would have to be accompanied by a report detailing the processes and systems used by the rights holder to gather evidence, and Ofcom says it may require these processes and systems to be audited by "an appropriate independent party".

ISPs will have to notify subscribers whose details have been mentioned in a CIR. The second notification would be triggered by the first CIR to be received at least a month after the date of the notification, with the same gap being necessary between the second and third notifications. "This time-based notification approach essentially provides a means to make subscribers aware of reported infringements and to allow escalation if they continue to be identified engaging in online copyright infringement," Ofcom said.

If a subscriber is notified three times within a year, they can be included on a copyright-infringement list — this anonymised list can be requested by any copyright holder who has made at least one infringement report about the relevant subscriber. Once they have received the list, the copyright holder would have to apply to a court to obtain specific subscribers' identities.

"In order that the identification process is sufficient to ensure that subscribers receiving notifications have been reliably identified, we propose that ISPs should have in place effective technical systems to match IP address allocation to subscribers," Ofcom said.

Mobile networks are being excluded for now, because of the low levels of infringement believed to take place on them, and because operators would have to install expensive new systems just to be able to identify who is downloading what over their networks.

The initial obligations code will also exclude ISPs with fewer than 400,000 subscribers because, in Ofcom's words...

...doing so "focuses the obligations on the major ISPs who provide internet access to more than 96 percent of the UK market; it is consistent with the government's intentions and, based on evidence received from copyright owners, the vast majority of alleged infringement is amongst subscribers of those ISPs".

Only seven ISPs have more than 400,000 subscribers: BT, O2, Orange, the Post Office, Sky, TalkTalk and Virgin Media.

The draft code also tackles the issue of public Wi-Fi and the fear that those operating open wireless networks on business premises would have to stop doing so, or become liable for their customers' or clients' actions.

According to the code, those operating Wi-Fi networks that involve an agreement with the user — even an oral or implicit agreement — would fall under the definition of an ISP. As they would fall well below the threshold of subscriber numbers, they would then be exempt from having to participate in the notifications process.

Ofcom's draft code is another extremely rushed process, forced by the Digital Economy Act's absurd timetables.

– Jim Killock, Open Rights Group

"Where a Wi-Fi network is provided in conjunction with other goods or services to a customer, such as a coffee shop or a hotel, our presumption is that the provider is within the definition of internet service provider," Ofcom said.

However, in cases where there is no agreement in place, "the person making open access Wi-Fi available would themselves be a subscriber", Ofcom said. This would make the provider of the access liable for what is done on their networks.

Once the terms of the initial obligations code have been settled, the government will still have to order how the costs of the notifications system will be split between ISPs and rights holders. Ofcom said in the draft that it has to have made the code by 8 January, 2011, and it currently anticipates meeting that timetable, subject to the code's approval by the European Commission and parliament.

Ofcom will carry out two other consultations regarding the Digital Economy Act this summer. In July, it will examine enforcement of the code and handling of industry disputes; in September, it will look at the sharing of costs.

The Digital Economy Act was made law in April, following a fast-tracked process in the dying days of the last government. On Friday, Jim Killock, the executive director of the Open Rights Group, said in a statement that Ofcom's draft code was "another extremely rushed process, forced by the Digital Economy Act's absurd timetables".

"There are huge unanswered questions, not least whether innocent people will have to pay to appeal," Killock said. "Both Jeremy Hunt — the culture secretary — and the Liberal Democrats recognised the likely flaws of the act during the debates. It is Mandelson's act, and they should not feel obliged to do his dirty work."

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