The communications regulator today published severely-delayed measures under the Digital Economy Act, which was originally passed by Parliament in 2010.
An Ofcom spokesman said regulators would consult on the proposals for the shortest time possible and warned unlawful downloaders who may have believed the laws would never come into force that the regime will be in place in early 2014.
The “initial obligations code” has been tweaked slightly to reflect the result of BT and TalkTalk’s High Court attempt to block it, which tied Ofcom’s hands until now. The broadband firms lost their case except in relation to who should bear the costs of enforcing it, which meant a portion had to be rewritten.
The regime will work almost entirely as originally envisaged. Entertainment industry lobbies, such as BPI for the record industry and the MPA for the film industry, will monitor file sharing networks and gather the IP addresses of those sharing copyright material.
The top six broadband providers – BT, Virgin Media, TalkTalk, Sky, O2 and Everything Everywhere – who each have more than 400,000 customers and control 93 per cent of the domestic market, will be required to check those IP addresses against their records. When a match is found they will send a warning letter that also suggests lawful alternatives.
Any customer who receives three warning letters within a year would be added to a blacklist and could be identified by copyright holders via a court order, to face a civil claim under the Copyright, Designs and Patents Act.
“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,” said Claudio Pollack, directo of Ofcom’s consumer group.
Controversial provisions of the Digital Economy Act that could require broadband providers to punish persistent unlawful downloaders by slashing their access speed or temporarily cutting them off will be considered after the initial obligations code has been in force for a year.
Ofcom has made some marginal changes to the regime since it was last published, however. The organisations that gather evidence of copyright infringement will have to submit their procedures to regulators for approval, and broadband providers must tell customers in warning letters how many times they have been observed allegedly infringing copyright.
They will have 20 days to appeal against accusations, to a panel appointed by Ofcom, at a cost of £20 and only on grounds specified in the Digital Economy Act, such as if someone else used their Wifi network despite "reasonable steps to prevent" unauthorised access. A general right to appeal on "any reasonable grounds" was removed from the initial obligations code on Government orders.
“Ofcom will oversee a fair appeals process, and also ensure that rights holders’ investigations under the code are rigorous and transparent,” said Mr Pollack.
Opponents of the Digital Economy Act claimed the appeals process was "a joke".
"Digital revenues are going up, the music and film industry are moving in the right direction, yet this cumbersome policy is still lumbering forward," said Jim Killock of the Open Rights Group.
"Ofcom are being asked to put lipstick on a pig with this code.
"The appeals are a joke. The Government has decided that 'I didn't do it' is not a defence. Some people will almost certainly end up in court having done nothing wrong."
While waiting for the Digital Economy Act to come into force, entertainment bodies have adopted a successful new legal strategy against websites involved in piracy. Using existing laws they have forced Britain's major broadband providers to restrict access to The Pirate Bay, which is among the most popular file sharing websites.
