As Europe Bats Around ACTA, UK Proposes Rules For ISPs Policing Copyright Breaches

With Europe preparing for a big vote next week on ACTA, the sweeping online copyright and counterfeit trade treaty, today the UK regulator Ofcom set out a proposal for how large ISPs in this country (ie more than 400,000) should tell their users when they’ve been found to be infringing on copyright — illegal activity that the government estimates costs the industry up to £400 million per year in the UK ($625 million). This has been a long-running story, with the initial proposals causing not a little controversy; this is Ofcom’s second stab at the concept. Some initial takeaways: the measures look expensive to implement; and they appear to be a further extension into how users are monitored by their service providers, and how that monitoring can be used against them.

On the positive side, it looks like users will have a slightly wider berth in terms of appealing and defending themselves against infringement allegations.

The new rules are the first major revisions that Ofcom has made since first laying out their copyright infringement procedure in 2010, as part of the Digital Economy Act, and in many ways they are similar to those that preceded it. The new proposals are only for large ISPs with more than 400,000 fixed broadband subscribers — BT, Everything Everywhere, O2, Sky, TalkTalk and Virgin Media, who together account for 93 percent of all broadband used in the UK.

Ofcom says ISPs will need to send letters informing users of their breaches, and these letters need to be spaced one month apart. One new area will be that users will now be able to see exactly what they’ve done to cause the infringement.

Three letters within a year, and then that users’ “anonymous” information could get passed on to copyright owners. Then the copyright owner could seek a court order requesting that users’ identity for legal action. Ofcom notes content owners have already been able to do this but the change is to make it more difficult to get those identities, and now they will need Ofcom approval as well — the idea being that the added work means they’ll only go after the worst offenders.

For their part, customers will be given a chance to appeal any infringement claim: also a new development. Ofcom says they will now have 20 days to appeal allegations, which they will need to do specifically in relation to the Digital Economy Act (so no “freedom of speech” claims, it seems). Those appeals will cost £20 to make (and probably more if you really get stuck in).

There is also a good dose of puff in them: ISPs will be required to explain how subscribers can find legal content online (presumably by promoting their own OTT services), and protect their networks from being used to consume illegal content. Similarly, content holders are expected to “invest in awareness campaigns to help educate consumers about the impact of copyright infringement,” Ofcom notes in its announcement.

Ofcom says that other measures that have been proposed — such as blocking bandwidth or suspending accounts — will only be put in place after the new code detailed here is in place for one year.

Ofcom is treading a fine line here, because up to now its measures have met with lots of opposition from rights groups, some of whose concerns have now been incorporated into these new measures. The regulator is defensive about these new proposals sticking:

“These measures are designed to foster investment and innovation in the UK’s creative industries, while ensuring internet users are treated fairly and given help to access lawful content,” Claudio Pollack, Ofcom’s Consumer Group Director, said in a statement. “Ofcom will oversee a fair appeals process, and also ensure that rights holders’ investigations under the code are rigorous and transparent.”

There is also the question of cost of implementing this. Based on the number of infringement notes, Ofcom estimates that the costs to content owners for a large ISP sending out Copyright Infringement reports can range between £14.4 million and £15.2 million (they would bear not only all of Ofcom’s costs but also 75% of the ISPs’ costs in administering this, Ofcom says). The cost per report ranges between £17 and £7.20, with those costs being much higher where smaller ISPs are concerned:

What happens next? Ofcom now enters another consultation period (which closes September 18) before the proposals see further review by the European Commission and then a hearing in Parliament at the end of 2012. Ofcom doesn’t expect the code to come into effect until March 2014, if everything goes as planned.