New UK Code Pulls ISPs into the Anti-Piracy Battle

New UK Code Pulls ISPs into the Anti-Piracy Battle

The UK will likely be implementing new anti-piracy measures through the publication of a new code this month.

In 2010, the passing of the Digital Economy Act (DEA) mandated that communication regulator Ofcom publish a code of practice procedure for Internet service providers (ISPs) aiming to combat illegal file sharing. After numerous delays, the UK government has announced that the code is expected to be passed before the end of June. The code would require ISPs to send notifications to users engaging in copyright infringement. Further, ISPs would have to maintain a record of infringing users. Copyright holders will be able to access this list and pursue legal action against infringers. Individuals accused of infringement will be able to appeal their notification letter to an independent appeal body.

The delay in the code’s publication is at least partially due to opposition by ISPs. ISPs claimed that the code would violate EU laws on privacy and data protection; however, the Court of Appeal ultimately rejected these claims.

The Ofcom code illustrates the need for a broad, multi-faceted approach to copyright infringement and online piracy. Just as new technologies have created new avenues for piracy, the law must respond in new ways. This inevitably means exploring new anti-piracy measures that would not have been considered and likely did not exist in the past. ISPs, as intermediaries, would ordinarily not be subject to anti-piracy measures; however, the communal nature of the Internet has changed many aspects of the traditional copyright approach.

An approach that aims to address the involvement of ISPs is only one aspect of a successful anti-piracy strategy. There is no single method broad enough to target all elements of Internet piracy. While the Ofcom code’s involvement of ISPs is one way to target intermediaries, other factors contributing to or affecting piracy must also be considered. For example, online advertising has been targeted to prevent the appearance of advertisements promoting pirating sites. Furthermore, cooperation with payment facilitators such as Visa and Mastercard has been cited as a means of terminating payment to illegal websites.

A key issue for intermediaries that is highly relevant to ISPs is that of knowledge. It is essential that ISPs have in place measures to assist in the identification of Internet piracy when it occurs. This is reflected in the Ofcom code through the requirement that ISPs make note of the alleged infringements and the notifications that are sent. Awareness of the occurrence of piracy allows ISPs and other intermediaries to develop better strategies that can subsequently work in conjunction with various approaches to create a multifaceted piracy policy.

Nora Sleeth is a JD candidate at Osgoode Hall Law School.