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The UK Government consults on revised proposals for legislation on illicit file-sharing
October 2009

Recent proposals may lead to duties being imposed on Ofcom and on internet service providers (ISPs) to police illicit file-sharing, in order to enhance online copyright protection.

Issued on 16 June 2009 to coincide with the publication of the final Digital Britain report, the government's consultation paper proposed five measures which, if implemented, would lead to Ofcom requiring ISPs to notify account-holders in an agreed format that their accounts appear to have been used to infringe copyright, and to maintain and make available anonymised data to enable the minority of serious repeat infringers to be identified.  This would permit rights-owners to issue proceedings against persistent copyright offenders.  The government’s proposal introduced technical measures which Ofcom could require an ISP to impose on a persistent infringer’s account.

After receiving considerable stakeholder feedback that these technical measures were not strong enough to deter and penalize infringers, the government issued a further statement in September 2009 which indicated it was considering empowering Ofcom to require an ISP to disconnect a user’s account as a last resort.  However, the new proposal generated significant controversy and public debate which culminated in another statement on 25 September 2009 from the Featured Artists’ Coalition (a coalition which includes a number of prominent British recording artists), which supported measures other than total disconnection of user accounts.  The statement advocates a three-strike policy, under which alleged infringers would receive two warning letters before being subjected to significant service limitations on their account, such as slower speeds and blocked addresses.  These measures would inhibit downloading or uploading files while leaving basic email and web access functional, thereby providing a viable alternative sanction to total disconnection.

The UK's policy on file-sharing is due to be announced in November, at which point it will become clear whether internet cut-off is to be introduced as a sanction. Until recently, the European Parliament were reticent to countenance allowing ISPs to cut-off piracy offenders: it had been proposing an amendment to its upcoming telecoms legislation package which would have made it difficult to take such steps without court authority. This month, however, it dropped its proposed amendment to its forthcoming telecoms legislation requiring such safeguards, paving the way for member states to enact laws to allow disconnection as they see fit. The French government has just approved plans which could see offenders cut-off from the internet for up to a year, and the UK government may choose to adopt similar measures.