Frequently Asked Questions - The Digital Economy Act Unplugged

The Digital Economy Act (DEA) was passed into UK law in April 2010. A key aspect of the Act was designed to promote growth and jobs in the creative industries, by tackling online copyright infringement of content on the internet. Despite significant public discussion about the measures and the debate surrounding them, there is widespread confusion as to what the legislation passed by parliament will actually do. Below are some frequently asked questions designed to address common misconceptions about the DEA.

 

About the DEA

1.    What is the DEA?
The Digital Economy Act is a major step forward by the UK government in promoting growth in the creative industries. The government is attempting to significantly reduce the unlicensed uploading and downloading of creative work. The provisions aim to change consumer behaviour to reduce activities which were already criminal offence, but to do so in a proportionate and educational way. In short, the Act enshrines in law new obligations for internet service providers (ISPs) to work with rights holders to tackle online copyright theft. It is simplest to see the Act’s copyright provisions in three parts:

1. First, ISPs are required to send notices to customers if they infringe copyright, and to maintain a list of the addresses used and the number of infringements notified to the ISP against such addresses.
2. The second creates reserve measures to restrict people's internet access in the event that the sending of notices – for an initial year – doesn’t succeed in reducing this type of copyright theft
3. And third, the government has the power to introduce new regulations on how courts can order ISPs to block certain websites. This is commonly referred to as ‘site-blocking.’ The creative industries are those industries which have their origin in individual creativity, skill and talent. In the UK the creative industries’ economic output accounts for at least £60 billion per year, or 8% of UK GDP. The creative industries employ two million people across film, TV, music, sport and publishing, and generate more output for the UK than the financial services, construction and tourism sectors. 

 

A wide number of organisations and companies have been vocal throughout the debate. These range from trade unions that represent workers in the creative industries to organisations in the music, film, TV, publishing and sports sectors. The Creative Coalition Campaign (CCC) was established in August 2009 to makes these arguments on behalf of rights holders and trade unions. Click here for a full list of the members of the creative coalition campaign.

 

2.    Why was there such a focus on online copyright infringement, when the legislation was designed to look at other issues such as video games ratings, the future of Channel 4, digital radio rollout and so on?
During the Digital Economy Bill process there was significant debate around online copyright infringement. Rights holders and other groups affected by persistent illegal file sharing have been campaigning for this issue to be regulated for many years. The complexity of the debate and proposed measures meant that there were significant misunderstandings about the remedies provided for in the legislation and their potential impact on consumers. 

 

Information for consumers on the DEA

1.    What will happen if I am illegally filesharing films, music, books magazine articles or other copyright content (officially referred to as online copyright infringement of)?
There are three initial phases set out in the Digital Economy Act to combat filesharing:

 

1. Initially notices will be sent by ISPs to customers of IP addresses which have been used for online copyright infringement. If someone is sent more than two notices they will be added to an anonymous repeat infringers list. This will be kept by the ISP
2. If infringing continues, despite a customer having received warning notices, they may face legal action by rights holders. This will only be possible after the rights holder has obtained a court order to obtain the personal details of a relevant customer from the ISP.
3. If this overall process doesn’t work in reducing infringement, there are powers for ministers and Ofcom to direct ISPs to restrict the internet access of the most prolific repeat offenders. This includes measures to bandwidth shape, or as a last resort, temporarily suspend the most persistent infringers’ internet accounts.

 

2.    Am I likely to get sued by one of the big film or music or publishing companies?
Serious, repeat infringers may be subject to court action by rights holders. You should immediately stop online copyright infringement and ensure your internet account is not used for this purpose following your first notice from your ISP. If you do not, you run the risk of further action being taken against you.

3.    Where can I go to get information about what’s legal and what’s not?
There are various websites that give information about where you can legally download films and music such as www.pro-music.org,  www.findanyfilm.com and www.whymusicmatters.org. In addition rights holders are committed to developing and implementing consumer education programmes. to raise awareness of the consequences of online copyright infringement.

4.    Why are so few films and albums available at realistic prices?
One of the expectations in the Digital Economy Act is that rights holders will continue to ensure their content is made available online at affordable prices. In fact the cost to the consumer of legal online content such as music and film has continuously declined. There are now more than 400 legitimate music services available worldwide (including almost 60 in the UK) with over 11 million tracks licensed for consumption. These include free streaming services such as Spotify and We7 that allow music fans to listen to music for free.

iTunes and Tesco Entertainment customers can purchase single tracks for as little as 29p and albums for under £4.  You can also purchase films from these sites and easily watch your favourite films and TV shows through video-on-demand (VOD) services on most broadband platforms.

Furthermore it has been reported that there are plans to launch a UK/ European version of HULU - the joint venture in the US owned by NBC Universal, News Corporation and Disney, which provides free consumer access through an advertiser funded Site.

As the Act is implemented and the market for digital content develops, consumers will see a continued increase in legal online services.
Will I get cut off from the internet, even if I did not intentionally do it?
No.  The entire process outlined in the Act will be accompanied by a fast and effective appeals process which you will be able to access if you are accused of online copyright infringement. If you are falsely accused it will be important to take immediate steps to ensure that your internet connection is adequately secured.  Technical measures would only be applied to internet account holders who have clearly and repeatedly infringed copyright. This will only be imposed if: the first phase doesn’t reduce online copyright infringement by the re; ministers agree it; and all appeals are exhausted.

5.    What happens if someone hi-jacks my internet connection? Will I get punished? How can I appeal against this?
You will be able to appeal against each copyright infringement report about you. If you believe someone hi-jacked your internet connection, you will have an opportunity to state your case to an appeals body organised by Ofcom.  The notifications will contain robust advice about securing wi-fi connections.

6.    I need the internet to live – isn’t it a human right nowadays?
There is no ‘human right’ to access the internet enshrined in law. Furthermore, the UK Parliament Joint Committee on Human Rights accepts that no individual has a fundamental right to access the internet per se.

7.    Can I just sign up to another ISP if I do get cut off?
You won’t be “cut off”, and in any event you would be subject to the normal contractual terms and conditions of your ISP. 

8.    What popular sites be blocked or shut down by the DEA? Will I still be able to view and share its content? And what about YouTube, Facebook and Twitter, are they affected?
There are provisions within the Act for government to set out new rules on blocking access to websites that make illegal content available. A substantial proportion (50% by some estimates) of illegal online copyright infringement is through websites acting illegally.

There are existing provisions in copyright law for rights holders to have websites that make illegal content available blocked. Social networks such as YouTube will continue to function as usual. Only sites such as Pirate Bay, which are predominantly set up to provide illegal access to content, will be subject to blocking. Sharing content that others own is already an infringement, quite apart from the DEA. Likewise on Facebook and Twitter, you should only share / make public pictures or video that you own the rights to.

Section 17 of the DEA was designed to clarify this process. Further legislation in the next year or two will be required by both Houses of Parliament to enact this section of the DEA.

9.    I am a parent. How am I expected to monitor all of my child’s activity on the internet?
The notice-sending process that will begin in the first year means there will be ample time for parents to configure their home computers to stop their children breaking the law online. Your ISP can advise on how to secure your internet connection and limit your children’s access to the internet. It is anticipated that parental guidance will help to affect behaviour change.
But the overall principle is that internet account holders are accountable for what happens through their internet connections. Your internet services provider can assist with this. Alternatively there are various consumer websites that provide an easy step guide to securing your connection as well as your own ISP. 

10.    I am a student and share a house with 5 others – why should I be responsible for what others do with my internet connection?
As explained above the notice-sending aspect of the DEA allows for sufficient time for everyone to secure their home computers and internet connection. Should you be the subject of an infringement report, there is a process of appeal through a new body being set up by Ofcom. Once technical measures are introduced there will be an opportunity to appeal to a court.
To avoid these stages it is highly recommended that you secure your wireless connection. As stated above your internet service provider can assist with this.

11.    Is this legislation just aimed at making more money for the creative industry?
This legislation is aimed at reducing the substantive annual losses the industry sustains each year, and protecting the workers in the creative industries who rely on the success of this sector for their jobs and livelihoods.

 

Information for policy-makers on the DEA

1.    What is the next stage in this process?
There are currently a number of ongoing consultations that will determine the next steps for the process.  The Department for Business Innovation and Skills (BIS) consultation entitled: Online Infringement of Copyright (initial Obligations) Cost-sharing has recently closed.  The government is due to respond to this within the coming months.
In addition, Ofcom is currently consulting on the draft Code of Practice, setting out details of the processes around identifying infringers and sending out notices.

2.    What secondary legislation needs to be passed?
Orders setting out the details around costs and the code of practice will both need to be passed in Parliament – by affirmative resolution.  This will need to take place by the end of the year, to allow for notice sending to begin in Q1 of 2010.

3.    How can policy-makers be planning to force ISPs to block access to website without a court ordering them to do so?
There are existing provisions in UK law for rights holders to apply for court orders to prevent their material being made available. Section 17 of the Digital Economy Act gives rights holders a more specific remedy.

4.    And if rights holders make hundreds of millions of pounds out of this, surely they should bear the brunt of the cost of implementing it?
A rights holder can be anyone from a small-time independent production company, a script writer or individual musician or artist through to a major film studio, book publishers or music company.

Rights holders already incur large costs through detecting infringers and funding consumer education programmes. At the same time ISPs have substantially benefited over the last decade from consumers accessing online content through their networks. There has been no attempt by ISPs to limit or restrict customers from practising this illegal online copyright infringement.
If these costs are not split fairly then rights holders will not use the system that has been put in place. And the government’s policy objective of reducing online piracy will not be achieved.


The ultimate aim of the Act is to promote growth in the creative sector, and help people and companies secure a return on their investment. Without this protection there will be a loss of jobs in the sector. In turn it will prevent future investment in content. This is the very issue that the legislation aims to deal with. It is important to note that a recent EU-wide study by TERA Consultants found that by 2015, the cost of online copyright infringement to the UK economy could amount to 254,000 jobs and €7.8 billion (£36.6 billion) in retail revenue. This is if measures in the Digital Economy Act are not implemented.


5.    I have heard that this Act might be repealed now that the Liberal Democrats are in government. Is this likely to happen?
It is important to remember that the Conservatives supported this Act. The Liberal Democrats were also supportive of the vast bulk of the legislation until the last moment. Furthermore Ed Vaizey, the minster for the creative industries, has recently indicated that the government has: “no plans to repeal any provisions in the Digital Economy Act 2010” (written answer 22nd June 2010).

6.    What are the legal obligations for the internet service providers (ISPs)?
In phase one, there are two:

 

1. to send notices to their customers when informed by a rights holder that an infringement has taken place and it is satisfied that the information is correct and correctly presented.
2. to maintain a record of the number of infringements notified against each customer, so that rights holders can more easily target legal action against the most serious repeat offenders. ISPs are already obliged to comply with existing laws and regulations – they will therefore be obliged to hand over the repeat infringer list if ordered by a court to do so.

7.    What is Ofcom’s role?
In addition to developing the code of practice, Ofcom will have to provide a report every three months and then at 12 months on the extent of unlawful copyright infringement and of the effectiveness of the measures taken to address it. This will set out the extent to which copyright owners are making content legally available and how the education campaigns are being implemented. It must also assess the volume of copyright infringement reports and report on the effectiveness of this system to the Secretary of State.

8.    Several ISPs are refusing to take any action unless court orders are produced for each individual case. This is going to be very labour intensive and expensive. How will this be managed?
The law is very clear on the requirements of ISPs and they will need to ensure that they meet the terms of the Digital Economy Act. If they fail to comply with these obligations they can be fined up to £250,000.