OFCOM Publishes Consultation Paper on Dealing with Online Copyright Infringement

by Rory Campbell

The Digital Economy Act 2010 gave Ofcom the responsibility of managing the controversial process of tackling copyright infringement via the internet.


The Act envisaged Ofcom having power to require ISPs to send warnings to subscribers infringing copyright. Failure to comply with a specific number of warnings would result in the identity of an infringing user being made available to copyright owners, who would then be able to take legal action against the infringing user.


The Act required Ofcom to draw up and enforce a code of practice describing how the system would operate, with the code being published by 8th January 2011. Ofcom published a draft code as a consultation on 1st June 2010, inviting responses by 30th July 2010. A copy of the code can be found here.


The consultation proposals include the following:

• Ofcom proposes that the code only covers larger ISPs, which Ofcom defines as fixed ISPs with more than 400,000 subscribers. This would include BT, Talk Talk, Virgin Media, Sky, Orange, O2 and Post Office. Small and medium sized ISPs would escape the remit of the code unless Ofcom receives evidence that subscribers to any such ISP are persistently infringing copyright.

• Ofcom acknowledges that it needs to create a proper system to check that any allegation against an alleged infringer is based on “credible evidence, gathered in a robust manner”. Any person accused of infringement will be able to appeal to an independent body, and Ofcom’s consultation proposes that any such person should be granted anonymity.

• The consultation proposes that once an ISP receives a copyright infringement report from a copyright owner, the ISP notifies the alleged infringer. The alleged infringer is given an easy to understand explanation of the allegations, and of the steps the subscriber can take to challenge the allegation – and to protect their network from being hijacked for the purposes of infringement.

• If an alleged infringer receives three notifications, their identity may be included in a copyright infringement list requested by the copyright owner. The copyright owner can then commence legal action against the alleged infringer.


Ofcom is clearly aware of the high temperature of the debate over the fairness of the Digital Economy Act: and it creates a future breathing space for itself by pointing out that enforcement under the Act needs to be one component in a broader approach to digital copyright infringement: “we note that [enforcement measures under the Act] were always expected to be complemented by a wider set of activity…including consumer education, the promotion of lawful alternative services and targeted legal action against serious offenders” (Ofcom consultation paragraph 1.9).


If you want legal advice on how the Digital Economy Act may affect you or your business, feel free to contact us at rory@fordelaw.com or on 028 44 33 00 23.

Forde Campbell LLP is a Northern Irish commercial law firm specializing in Media, IP and IT.