Digital Economy Bill gets tough on file-sharers

People who unlawfully download copyrighted material could be disconnected from their internet accounts as part of the Digital Economy Bill, a major overhaul to the UK's technology legislation.

The bill, unveiled on Friday, will oblige ISPs to send notifications to customers who are suspected of infringing copyright. ISPs will also be forced to record the number of notifications a user has received and send this data to rights holders, such as record companies, so they can apply for a court order for the user's name and address.

The rights holder can then launch civil proceedings against the infringer. The minister for Digital Britain, Stephen Timms, said at a Friday morning briefing that unlawful file-sharing would definitely not be made a criminal offence associated with a potential jail term.

Timms said there was "a pretty broad measure of recognition" in the ISP industry that the file-sharing issue "needs to be resolved", and said 99 percent of ISPs were "broadly supportive" of the government's proposals. Under a clause in the bill, ISPs who fail to hand over customer data to rights holders will face a fine of up to £250,000.

The precise process by which an internet user might be disconnected is not included in the bill. A Department for Culture, Media and Sport (DCMS) spokesman said at the briefing that to call the process 'three strikes' — a term that derives from France's Hadopi law, but that has been widely used to describe such processes — "misunderstands the basic nature" of the government's proposals.

Timms explained the government plan for the disconnection policy: "When a content rights holder identifies that somebody is doing things they shouldn't be doing, their ISP will send them a letter telling them they shouldn't be doing it. If that process proves to be insufficient, then we have the ability to put in place these technical measures. Among the technical measures, temporary account suspension is a possible temporary measure."

According to a BIS (Department for Business Innovation & Skills) spokesman, different ISPs' customers might be addressed with "different technical measures", which would "depend on the extent of the problem on the network".

The rights holder identifies infringements when they "go to a peer-to-peer hosting site, discover that someone is offering one of their works, and therefore that person must have downloaded it", the spokesman said.

The BIS spokesman said the cost of the notification process would be shared between the telecoms regulator, Ofcom, and the ISP. "Ofcom will decide on a fixed charge for written notifications if a rights holder and the ISP will charge the rights holder this fixed amount," the spokesman said.

Also as part of the bill, people who download copyrighted material so they can distribute it for commercial gain will face a maximum fine of £50,000.

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Another provision in the bill is the granting to the business secretary, Lord Mandelson, of the power to amend the Copyright Designs and Patents Act 1988, "for the purpose of preventing or reducing online copyright infringement". This power will provide the government with "a flexible approach to dealing with other online copyright infringement issues", according to a summary of the bill.

Timms declined to specify what that flexible approach might entail, but said the sending of notification letters to suspected unlawful file-sharers "will do the trick in reducing the scale for illegal activity". He said these further measures would only be introduced if there is not a 70 percent reduction in unlawful file-sharing a year after the notifications procedure is introduced.

Ofcom will produce a report on how effective the notifications have been, and the business secretary will then decide on what technical measures should be taken, after being advised on this matter by Ofcom.

Other features of the bill include a provision for the legal use of so-called 'orphan works', pieces of content whose owners cannot be identified or found. Licence-collecting societies will also be granted limited powers to collect fees on behalf of rights holders who have not signed up to that society.

The government will also gain powers to intervene if UK-based internet domain-name-use is being abused. This is currently in the remit of the .uk registry, Nominet, but the DCMS spokesman said internal conflict on the Nominet board could necessitate government intervention.

"Nominet's got some rules which work perfectly well for the moment," he said. "We saw some argument going on in the organisation as to exactly what direction it should go in, so it seemed to us it wasn't a safe thing to leave without [the ability] to intervene."

A notable absence from the bill was that of the 50p-per-month levy on copper line connections, which Lord Carter's Digital Britain report proposed as a way of funding the rollout of fibre-based next-generation broadband to areas of the country that are not commercially viable for operators without subsidy.

"That's a measure for the Finance Bill," Timms said, adding: "I'm also the minister responsible for the Finance Bill, conveniently."

Update: An earlier version of this story stated incorrectly that individual file-sharers would face a maximum fine of £50,000. In fact, this figure applies to those committing online copyright infringements for commercial gain. It remains unclear what the maximum penalty might be in a civil suit against an individual file-sharer.