The Digital Economy Act 2010 (c. 24) is an act of the Parliament of the United Kingdom. The act addresses media policy issues related to digital media, including copyright infringement, Internet domain names, Channel 4 media content, local radio and video games. Introduced to Parliament by Peter Mandelson on 20 November 2009, it received royal assent on 8 April 2010. It came into force two months later, with some exceptions: several sections – 5, 6, 7, 15, 16(1)and 30 to 32 – came into force immediately, whilst others required a statutory instrument before they would come into force. However some provisions have never come into force since the required statutory instruments were never passed by Parliament and considered to be "shelved" by 2014, and other sections were repealed.
Provisions
Online infringement of copyright provisions (sections 3–16) Sections 3 to 16 contained copyright infringement provisions, which were controversial. These provisions established a "code" to be created which would define a system of procedures covering notifications to Internet service providers to notify their customers when an allegation was made of downloading copyright-infringing content online, subscriber appeals, conditions under which subscribers could be identified to third parties, and conditions for disconnecting persistent infringers. The objective was to provide evidence that copyright holders could use in court action against subscribers who repeatedly infringed. A second element of the provisions comprises the ‘technical measures’, where a sanction would be applied directly via a subscriber's Internet provider.
Under section 3 the allegations were to be transmitted to the Internet service providers (ISPs) by the copyright holders. The ISPs would then be obliged to transmit notifications to their subscribers, informing them of the allegation. Section 4 mandated the ISPs to keep a list of repeat offenders (a "copyright infringement list" ) who had reached a pre-determined threshold in terms of the number of infringements committed, and the data should be anonymous. The aim is that copyright holders could later seek a court order to identify subscribers against whom they want to take action.
Code not passed into law The act provided for this in the form of an Enabling Act, which required Ofcom (the communications regulator for the UK) to produce a draft code that would then be passed by Parliament and come into force as a statutory instrument. However, by 2013, when the draft code was produced, the political climate had changed and a substantial controversy existed over the practicalities of the proposed code. The draft code was never passed into law or pursued after that date, and was "shelved" by 2014.
Outline of code provisions The code had comprised the following components:
Initial obligations code The act does not specify the implementation detail for the measures. Instead, provides for the implementation to be drafted by Ofcom, in an Initial Obligations Code. Section 5 and Section 6 establish the process for Ofcom to write the code. Section 7 establishes in a very broad way what the code should contain, but leaves all the detail for Ofcom. The code must be approved by Parliament under the annulment procedure before it can come into force.
The decision to use the code of practice instead of specifying the measures in full within the text of the act has itself formed part of the controversy surrounding the measures. For example, the act did not specify the standard of evidence required. It also did not specify the threshold – number of infringements – for entry onto the copyright infringement list.
On 28 May 2010 Ofcom published a draft initial obligations code for consultation. In June 2012, it issued a second consultation document.
Obligations to limit Internet access (technical measures) After the Initial Obligations Code has been in force for one year, the act provides for a second set of measures to be brought in. The technical measures specified in the act Section 9 are the restriction or limitation of the speed of the broadband connection, restricting access to particular material online, and suspension (disconnection) of the service. The most controversial of them however, was disconnection of the subscriber for a period of time. It would function as an alternative to taking people to court, and in effect an extrajudicial process.
Technical measures are to be brought in under another code, known as the code about obligations to limit Internet access Section 11 and Section 12. This Code would be subject to the super-affirmative procedure in the British Parliament.
Appeals Section 13 of the act requires the provision of an independent appeals process, so that subscribers who wish to do so, may challenge a notification or (when implemented) a technical measure. Ofcom is required to set up an appeals body. This body will be an administrative body, independent of copyright holders and ISPs. Cases will not be heard in person. If technical measures are implemented, there will be a right to appeal to a First Tier Tribunal.
Obligations on ISPs and copyright holders The act amends the Communications Act 2003. In this context, it places obligations on the ISP to apply both of the codes, and it gives Ofcom the responsibility of enforcing those obligations. Ofcom has the power to fine the ISPs up to £250,000 if they fail to meet those obligations. Section 14
The act also provides for the cost allocation to be determined by a further statutory instrument. Section 15. To date, two draft statutory instruments have been laid before Parliament but neither has been passed into law.
Blocking Internet locations (sections 17–18)
Section 17 and 18 would have allowed copyright holders to apply to a court to obtain website blocking injunctions where "a substantial amount of material has been, is being or is likely to be made available in infringement of copyright", or where a location "facilitates" such behaviour.
In deciding whether to grant an injunction, the court would have been required to consider: Steps taken by the operator of the location to prevent infringement Steps taken by the copyright owner to facilitate lawful access to the material Any representations made by a minister of the Crown Whether the injunction would be likely to have a disproportionate effect on any person's legitimate interests The importance of freedom of expression
Sections 17 and 18 would have had to be brought into force by a statutory instrument. However, following a review by Ofcom, they were repealed on the basis that copyright holders already had the ability to use section 97 of the Copyright, Designs and Patents Act 1988 to take court action against websites.
Other provisions Other provisions in the act include Section 42 an amendment to the Copyright, Designs and Patents Act 1988 to increase the penalty in connection with criminal liability for copyright and performing rights to a maximum of £50,000. Age classification of content is also in the act, which adopts the Pan European Game Information (PEGI) standard for video game ratings, and transferring content rating from the British Board of Film Classification to the Video Standards Council.
Changes to DAB radio in the United Kingdom including the reorganisation and merging of some of the local DAB ensembles and a requirement for a digital switchover of terrestrial radio in the United Kingdom. The management of .uk Internet domain registries The functions of the Channel Four Television Corporation The regulation of television and radio services The regulation of the use of the electromagnetic spectrum The Video Recordings Act 1984 Public lending right in relation to electronic publications. (Authors receive a 10p royalty for physical books lent from UK libraries but not ebooks. This act extends that royalty to cover some ebooks and audio books lent by libraries electronically. However the appropriate legislation has not yet been amended for this to take place.)
Legislative process The Digital Economy Act 2010 followed the Digital Britain report of 2009,Digital Britain final report a policy document which outlined the United Kingdom Government's strategic vision for its digital economy. Lord Carter, Digital Britain minister, spent eight months considering the matter before releasing his final report in June 2009. The Digital Economy Bill was announced in the Queen's Speech on 18 November 2009 to the United Kingdom Parliament. The bill went through three readings in the House of Lords, before being presented to the House of Commons for its first reading on 16 March 2010.
Wash-up The general election was called on 6 April 2010, which meant that the Digital Economy Bill was running out of parliamentary time, as Parliament was dissolved on 8 April. The Digital Economy Bill went into what is called wash-up. The wash-up is an accelerated parliamentary process used after general elections have been called to rush unopposed legislation through parliament before dissolution. This meant it was not debated at length in the Commons. In return for supporting the Digital Economy Bill in the final wash-up vote the Conservatives demanded the removal of clause 43 which related to orphan works, copyrighted works for which the copyright owner cannot be located, which had been criticised by photographers. Other clauses that were removed during wash-up included provisions for the funding of regional news consortia. The bill received its second reading in the House of Commons on 6 April 2010.
There was support for the bill from both the governing Labour party and the opposition Conservatives. It passed third reading on 7 April, with royal assent granted on 8 April. The act is in force, however the requirements for the sections relating to online piracy (ss.3–18) to have legal effect were never implemented.
Initial controversies arising from the proposed act
Controversial aspects Aspects of the proposed act which were strongly criticised included: The Digital Economy Bill incorporated a graduated response policy despite the alleged file sharer not necessarily having to be convicted of copyright offences.Digital Economy Bill The bill also introduced fines of up to £50,000 for criminal offences relating to copyright infringement – for example if music is downloaded with intent to sell. The high penalty is considered to be proportionate to the harm caused to UK industries. An appeals process exists whereby the accused can contest the case however, the concern has been expressed that this process will be costly and that, in requiring the individual to prove their innocence, the bill reverses the core principles of natural justice. Critics saw serious repercussions and perceived the concepts as ill-considered and likely to prove "disastrous". While the British Phonographic Institute claimed the bill was vital for the future of creative works in the UK. The Conservative party spokesman for Culture and Media stated that those downloading should be given a criminal record. Conversely, the Liberal Democrat party spokesman for Culture and Media claimed the bill was reckless and dangerous stating that children could unwittingly be file sharing causing an entire family to lose their internet connection. In addition to this, there was concern that hackers may access internet connections to download files and leave the bill payer responsible.