Infringement & the DEA

Schools should be aware of how the Digital Economy Act copyright infringement measures work and should minimise their risks by continuing to adopt good practice in network management, use of AUP and the provision of education for 'digital literacy'.

This article published 20th September 2012 - update to implementation schedule April 2013.

Details of how the UK's Digital Economy Act 2010 (DEA) helps copyright owners target infringement through internet use were published by Ofcom in June 2012. Known as the [revised draft] Initial Obligations Code (IOC or 'the Code') it sets out obligations for for ISPs to:

  • notify their subscribers that they have received allegations of copyright  infringement associated with their internet account; and
  • provide to copyright owners on request anonymous details of those accounts against which at least three allegations of infringement have been made. Copyright owners can then apply for a court order to force ISPs to reveal the identities of these serial infringers.

Following delays to Parliamentary approval for the Costs Order, which determines how the DEA letter-writing scheme should be funded, it is expected that Ofcom's Initial Obligations Code measures will not come into force before 2014 and first notification letters would not be sent until 2015.

The DEA is targetted at illegal mass downloading via the internet and in its initial phase will only involve the largest ISPs - BT, Everything Everywhere, O2, Sky, TalkTalk and Virgin Media. While these obligations to notify subscribers do not at present fall upon schools (and are unlikely to do so for the foreseeable future), where they are acting as "subscribers" schools may still be eligible  to receive "notification letters" that their accounts have been associated with copyright infringement. They should therefore take steps to minimise the likelihood of their networks being used to infringe, in particular by securing their networks.”

Headline Guidance for Schools

At this stage, before the DEA has not been fully worked through in practice, schools are advised to follow best practice by ensuring:

 awareness of 'Copyright' issues amongst their community

 provision of advice to their workforce

 implementation of Acceptable Use Policies and compliance measures

 effective network management

 monitoring for large scale up/downloading

 a programme of copyright education for pupils

 measures taken by the school to provide or direct users to licensed or copyright usable materials

 being able to provide evidence of all of the above being in operation

Many schools already adopt good practice in many of these areas in respect of e-safeguarding and teaching, learning and administration for young people. Improving existing measures and policies to include the scope of the DEA is probably a more effective way forward than initiating a separate approach for the DEA and 'the Code'.

Other organisations providing internet access in the education and learning sectors, including libraries, universities and colleges, are receiving similar advice. (see links at the foot of the page)

 

THE DETAILS

Q: How will it all work?  A: In two parts.

1. The Initial Obligations Code (IOC or the Code) is a process to inform alleged copyright infringers that they have been identified and to provide copyright owners of anonymous details of accounts associated with multiple instances of infringement.

2. This part is not part of the DEA. Legal actions by copyright owners are taken forward through existing separate Copyright legislation - the Copyright, Designs and Patents Act 1988 (CPDA). More on the CPDA in Copyright and the Law 

1. The Code process

 A copyright owner collects evidence that an IP address is illegally "sharing" their material and infringing copyright. "Copyright owners’ procedures for gathering evidence of infringement must now be approved by Ofcom, rather than by the copyright owners themselves. Ofcom plans to sponsor the development of a publically-available standard to help promote good practice in evidence gathering."

 The Copyright owner identifies the ISP who is responsible for the service to this IP address and sends them a CIR - a copyright infringement report - giving the IP address and other data such as times and dates. This report must detail the 'infringements'. 

 Under the provisions of the Act the ISP has to check their records and identify which of their subscribers was using that IP address at the relevant time and then sends the subscriber a notification telling them about the alleged copyright infringement and information on how they can protect their network from infringement use and tell them where they can go to find licensed content on the internet. The Copyright Owner is not given the user identity and it is the ISP who contacts them.

 An appeals procedure is being set up which would permit a person to appeal against any CIR they receive - i.e within 20 days of receiving a CIR from an ISP.

 The ISP maintains a record of how many CIRs any subscriber receives and when a threshold is reached - 3 notifications within a year - anonymous details of their account  are put on a copyright infringement list (CIL). Copyright owners can ask to be provided with a copy of CIL on request.

2. The court process

 At this point a copyright owner could obtain a court order to obtain personal details - name, address, etc - from the ISP.

 The Copyright Owner may then decide to take targeted legal action against subscribers on the CIL under the provisions of the UK's Copyright Act (CDPA).

Appeals

'Subscribers'who receive notification letters will have up to 20 working days to appeal against an allegation of infringement under the procedure set out in the Code. 4 In the event of an appeal, the onus is on the copyright owner to prove that the infringement has taken place, and on the ISP to show that it is associated with the subscriber’s IP address.  Under the DEA, the appeals body must find in favour of the subscriber where it determines that the alleged infringement was not committed by the subscriber and the subscriber took “reasonable steps” to prevent others from infringing copyright by means of the subscriber’s internet access.

 

Where do schools fit in?

School internet services may come directly from an ISP or, via an 'intermediary' such as an LA or RBC. The Act includes definitions of ‘Communications Providers’, ‘Internet Service Providers’ and ‘Subscribers’, to clarify as fully as possible the nature and roles of those who might be providing the services through which the infringement is taking place. 

In the Code Ofcom has stated that "public bodies like libraries or universities are likely to be ISPs as they provide Internet access under an agreement with their readers or students respectively" - schools are also seen in this category. However, whether schools are 'Subscribers', 'Community Providers' or 'ISPs' is not for Ofcom ito decide - hence the "likely" in the foregoing sentence. Ultimately the categorisation of a school may only be determined in a legal case and that would depend on individual circumstances.

However, within the terms of the Initial Obligations Code such public 'intermediaries' as libraries and universities will not meet the initial qualification threshold (of 400,000 broadband lines), so will not be required to comply with the initial operation of the Code.  When the Code is revised, any new qualification threshold is likely to relate to numbers of infringement reports received, so provided public intermediaries continue to act effectively to minimise or prevent copyright infringements, they are likely to continue to fall below the threshold and remain outside the scope of the Code.

Therefore, it is in schools' own interest to adopt good practice and minimise 'infringements by its users and therefore risks to the users and the organisation.

And remember, being "outside the scope of the Code" at any time is not being outside the laws pertaining to Copyright Infringement which are set out in the UK's Copyright Act - the CDPA 1988.

 

NEN good practice

 That effective Acceptable Use Policies are in place which are consistent through the Internet provision chain of schools, local authorities, RBCs and providers. Consistency through the chain of provision is  a crucial point in terms of how the DEA and IOC will work with education establishments.

 The high priority for e-safegaurding and teaching, learning and administration for young people that has developed good practice in network management and traffic and usage monitoring.

 The 'blocking of access' of websites that provide illegal services or exist solely to facilitate copyright infringement.

 Providing detailed information and raising awareness about Intellectual Property and Copyright in the digital age and sources of usable - including licensed - materials to its communities.

 

Minimising copyright infringement - some steps for schools

There are a number of steps that schools can take to minimise copyright infringement risks in general and in respect of the Digital Economy Act in particular:

 Schools’ Acceptable Use Policies for Internet access for their students, workforce and guest users should address intellectual property including copyright and should set out procedures for dealing with alleged copyright infringement.

  A senior member of staff should be nominated so staff can refer copyright issues to them.

 Schools should ensure that all their students and workforce are aware of intellectual property, including copyright, law and have access to information about it.

 All Internet users should be educated about intellectual property issues, including issues relating to copyright, licensing, digital materials and the Internet.

 Warning notices about illegal downloading or copying should be provided - for instance, posted in work areas, above computers, photocopiers, scanners and other equipment or on screen-savers.

 Providing and directing users to licensed or copyright usable materials

 Where possible, access should be blocked to Internet sites the sole purpose of which is known to be to facilitate the illegal downloading of materials.

 Instances of alleged copyright infringement should be investigated.  Internet users should be treated with respect, observing and preserving their privacy, and considering them to be innocent unless evidence proves otherwise.  Junior staff may wish to refer the issue to more senior staff, or to ask another staff member to accompany them when challenging someone whom it is suspected may be breaching copyright in the institution.

 Receipt of a 'notification' from an ISP - this is a notification of alleged infringement initiated by a copyright owner - under the Code should be responded to in a timely manner.  Schools should not assume that they are "outside the Act". If you are not able to identify individuals who have used computers on dates and times at which breaches of copyright have been alleged it should be reported back to the ISP and the appeals body.  You should also be prepared to list the steps taken by your school to minimise copyright infringement.  Under the Act schools have the right to challenge and dispute such charges.  An appeal to the independent appeals body must be lodged within 20 days of receiving a copyright infringement report from a qualifying ISP. 

 Where breaches of copyright under the Act by a member of staff are substantiated, the person should be given additional instruction about copyright law in general and the current incident in particular, and warned that a repetition may result in disciplinary action being taken under the school’s employment contract with that staff member.

 Where breaches of copyright under the Act by a pupil are substantiated, and the pupil can be identified, the pupil should be given information about copyright law as this affects the school, and warned, for instance, that a repetition may result in the person being banned from accessing the Internet in school.

 

What should we do if we receive a CIR?

Act immediately.

Pass it to the senior management.

Consider if the information requires acting on in terms of the schools' own AUP.

Take advice from the schools' legal entity.

 

Schools: 'ISP' or 'Subscriber'

It is probably helpful if schools are recognised as an 'ISP' rather than a 'subscriber' within the terms of the Code, particularly if the scope of the Code was broadened in future. As the Code is defined at present, a 'subscriber' receiving 3 CIR in a year would be put on the Copyright Infringement List and in the case of a school community of hundreds that could arise from just one person's 3 infringements.

 

The future

Measures outlined in the DEA "such as internet bandwidth reduction, blocking internet access or temporarily suspending accounts" by ISPs lie outside the Ofcom Code and would require further legislation.

 

 

Further information and guidance

 The Ofcom Code; Headline Summary for Consumers: http://consumers.ofcom.org.uk/2010/05/draft-code-of-practice-to-reduce-online-copyright-infringement/ 

 The Chartered Institute of Library and Information Professionals (CILIP) has published guidance for educational institutions and public libraries which includes advice on minimising copyright infringement:  http://www.cilip.org.uk/news-media/Documents/Digital_Economy_Act_impact_education_institutions_libraries_July2012.pdf

 JISC (UK Colleges and Universities) has published a two page guide 'Practical Suggestions to Remain Compliant with the Digital Economy Act'http://www.jisc.ac.uk/media/documents/publications/briefingpaper/2010/scadeapracticalsteps.pdf

 'Copy Rights and Wrongs' gives information and guidance for schools on 'Copyright in the Digital Age': www.copyrightsandwrongs.nen.gov.uk including guidance on the DAE and IOC for Schools

 Read the Act - The Digital Economy Act 2010: http://www.legislation.gov.uk/ukpga/2010/24/contents ... The Initial Obligations Code is an outcome of the DEA. 

 

Disclaimer

Although every care has been taken in assembling the information and materials in this article, the materials are for general guidance only and are not, and are not intended to be, legal advice.