Date 26 April 2010
The Digital Economy Act, which received Royal Assent on 8 April 2010, has already been the subject of controversy. The Act follows the Digital Britain report of 2009, and is intended to boost the digital economy and combat piracy. There has been considerable discussion of the abortive broadband tax, the switch off of analogue radio and changes to the classification of video games.
However, perhaps the biggest talking point is the power given to the Secretary of State to make regulations in relation to blocking internet connections used for copyright infringement.
Widespread concern has been voiced in the press that this could mean that households or public access areas such as cafes or coffee shops are disconnected from the web due to charges of file-sharing, and that internet service providers (ISP) are forced to block access to websites that are deemed likely to infringe copyright.
ISP have also expressed their unease about the new legislation. A major problem is that copyright holders can connect IP addresses to piracy, and in turn these IP addresses can be linked to household internet accounts. However there could be many legitimate users on the one account, such as relatives or friends, quite apart from illegitimate users. There is concern that people who are determined pirates will be able to use other people's internet connections and will be competent enough to cover their tracks when doing so.
However, the Act does provide for a number of safeguards. Prior notification must be given to the ISP and the website operator before action is taken. The court must also take into account any measures taken by the ISP or the website operator to prevent infringement, and it will also consider evidence of measures taken by the copyright owner or licensee to give people lawful access to the material. The ISP will not have to bear the costs of disconnection.
The court will also need to consider proportionality when exercising the new powers. For example, it will need to look at whether blocking the location will have a disproportionate effect on a person's legitimate interests. In practice this would probably mean it is less likely that popular sites such as 'YouTube' would be blocked. Freedom of expression will be considered by the courts.
It is still unclear how far these safeguards will protect the innocent user, so there is scope for concern. Perhaps the Act should have focussed on more recent technological advances, such as encrypted ‘cyberlocking' facilities, virtual private networks and the use of proxy servers to hide the true location of file-sharers.
However, any discussion of the precise circumstances in which access to the internet will be blocked is premature, given that the regulations which will give them effect have not yet been drafted. Thereafter, they will face parliamentary scrutiny in what could be a febrile political environment. What emerges will depend as much on this process as the Act itself.
Thus for all their importance, not only for copyright holder, but also for all users of the internet, it remains to be seen how these new provisions will be implemented in practice. We will have to wait a while longer before we see the new powers in action.
If you would like more information or advice relating to a specific matter concerning the Digital Economy Act, please contact Nat Young on 01727 798098 or by email at nathanael.young@salaw.com.
© SA LAW 2010
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