Internet Piracy Legislation

April 1, 2010

Legislation to tackle Internet Piracy and Copyright Infringement moves closer

The communications sector is vital to Northern Ireland’s economy and society. Rapid advances in digital technology is transforming how both businesses and people operate. And this digital revolution offers great opportunities.

With these rapid advancements in the digital economy comes the growth in illegal downloads and copyright infringement. Economics firm TERA Consultants on behalf of the International Chamber of Commerce, recently carried out a study which found that the UK’s creative industries experienced losses of 1.4bn euros in 2008 because of piracy.

The impact of illegal downloads was recently highlighted by a statement from Sony Pictures Entertainment in the Los Angeles Times in which the company threatened to cease its DVD distribution in Spain because of the high levels of illegal downloads. The UK government is taking steps to address the issue through the Digital Economy Bill.

The House of Lords recently passed the Digital Economy Bill. The Digital Economy Bill is now expected to be rushed through the Commons before the general election. The Bill covers a variety of topics, including: new areas of responsibility for regulator OFCOM; online copyright infringement; internet domain names; broadcasting Channels 3, 4 and 5; radio station licensing; mobile phone networks’ use of electromagnetic spectrum; and video game age ratings.

The most controversial topic in the Digital Economy Bill is online copyright infringement. It is being debated whether internet users who breach copyright by illegal file sharing could ultimately face limits to download speed, limits to internet use and/or suspension of service altogether.

It is proposed that the test for which users will be reported for copyright infringements will be set by each ISP under a code that it will draw up. However, the codes will be subject to approval from OFCOM. It is possible that OFCOM rules may later specify that the codes contain a provision for ISPs to issue warning letters before reporting copyright infringements. The Bill does however provide a process for users to appeal.

Also being debated are the obligations on Internet Service Providers (ISPs) to report copyright infringements, restrict the internet access of file sharing users, and block websites with pirated content.

The Bill will require ISPs to provide copyright infringement lists to copyright owners, listing internet users who have infringed copyright beyond the level set by that ISP’s OFCOM-approved code (see above). This has caused a number of privacy concerns.

ISPs who fail to meet their reporting obligations, or fail to impose restrictions on users when ordered to, face a fine of up to £250,000.

The new law will allow the High Court, on the application of a copyright holder, to issue an injunction requiring ISPs to block access to websites which have a “substantial proportion” of copyright infringing material.

The court must, however, have regard to a number of factors before issuing an injunction, including: the steps the site operator has taken to stop copyright-infringing material being accessed; the steps the ISP may already have taken to limit access to the website; and whether the copyright holder has taken steps to make the material legally available.

The Bill creates a number of onerous obligations for ISPs. Furthermore, websites that allow users to post their own links, videos, photographs and pictures such as Facebook, YouTube and others will have great difficulty in policing the material posted on their websites and may fall foul of the Bill. What is certain is that ISPs will have to carefully review their policies and practices to limit the copyright infringement or face the consequences.

The Bill has just completed its third reading in the House of Lords, completing the scrutiny from the Upper House. The next stage is the Bill’s second reading in the House of Commons on 6 April.

Please note: The content of this article is for information purposes only and further advice should be sought from a professional advisor before any action is taken.

Cleaver Fulton Rankin, 50 Bedford Street, Belfast, BT2 7FW
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A legal alliance Matheson Ormsby Prentice, Dublin & Cleaver Fulton Rankin, Belfast