In the US, the Copyright Alert System is expected to start within days. This is a graduated response scheme agreed between the major ISPs and rightsholders and aimed at copyright infringing internet users. If a rightsholder detects an infringing IP, the ISPs will notify and warn the account holder to stop infringement. The warning is graduated through six notifications, increasing in severity from a simple notification which ‘will also direct the subscriber to educational resources’, to ‘mitigation measures’ which may include “temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures that the ISP may deem necessary to help resolve the matter.”
The system being adopted in the UK is statutory rather than voluntary and based on the Digital Economy Act. This one is based on three strikes rather than six strikes. Although the act is already in force, the graduated response against infringers is not expected to start in earnest until 2014, and the UK communications regulator (OFCOM) has to prepare the ground. One thing he has to do a ‘define’ a baseline so that the future effectiveness of the scheme can be monitored. Part of this process was the release of survey findings into current UK copyright infringement earlier this week. OFCOM polled 4,400 users aged 12 and upwards.
The findings should not surprise anyone since they merely reinforce the conclusions of other surveys and research: copyright pirates spend more money on buying copyrighted material than do non-infringers. “Those who consumed a mixture of legal and illegal content claimed to spend more on that type of content over the 3-month period than those who consumed 100% legally or 100% illegally,” states the report. Other findings suggest that a large number of all internet users (44%) simply don’t know whether what they download is legal or illegal; and that cheaper material, available material, and legal clarity would be the factors most likely to prevent infringement in the future.
Only 22% of the respondents said that a warning letter from the ISP threatening account suspension would put them off further infringement. Suspension is the ultimate sanction, and the most problematic issue of the Digital Economy Act. Internet access is now considered a human right by the United Nations, and both researchers and some courts question the reliability of IP-based evidence – which could lead to innocent people having their access terminated. It is further complicated by users who may technically be subscribers, but who unknowingly provide service to infringers: such as internet cafes and public service providers.
The Out-Law legal blog reported yesterday that it has seen a speech by Justin Le Patourel, head of copyright at OFCOM, to an audience at the Westminster Media Forum, that will provide some comfort to such service providers. “We’ve already said that we believe that an individual who receives an internet service primarily for the purpose of using it, but who happens also to make it available to others by opening a Wi-Fi connection, is a subscriber, and can therefore legitimately receive notifications," he said. But, he added, “That’s different to a library or a cafe which can demonstrate that it receives an internet service predominantly for the purpose of making it available to customers. Our interpretation of the definitions is that this body is likely to act as an ISP or a Communications Provider and therefore cannot legitimately receive notifications, even where the owner also uses the service for his own needs.” OFCOM suggests that in the first instance it is up to the ISP to differentiate between the two.