The Digital Economy Act 2010

Since so much noise has been made about the UK's brand new love-it-or-loathe-it Digital Economy Act 2010, the IPKat thought he should say a few words about it. This Act, which received the Royal Assent on 8 April, implements some chunks of the Digital Britain report (see earlier posts here, here, here and here). The Act is 60 pages long, but most of it does not specifically concern intellectual property. Other areas tackled include public service broadcasting and content, network infrastructure, mobile spectrum and digital safety.

Right: yet another device designed to enhance digital security

From an intellectual property perspective, the Act contains controversial provisions which the Secretary of State the power to order internet service providers to take technical measures against subscribers (the obvious one being suspension of online access) in order to tackle online copyright infringement. The Secretary of State is also empowered to make regulations giving the courts the power to order blocking injunctions in relation to specific websites. Maximum financial penalties for copyright offences are standardised and given an uplift. There are some non-contentious bits too. Public lending right is extended to cover publications in non-traditional formats like e-books.

Some provisions are aimed at gathering data, which is in keeping with the UK government's praiseworthy intention to make sure that legal changes are at least evidence-based. Thus Ofcom ("the independent regulator and competition authority for the UK communication industries") has the job of reporting at three-year intervals on the UK's communications infrastructure, internet domain name registration and the manner in which media content contributes to public service objectives. Ofcom is not the only body that will take an interest in how domain name registration works though: the Secretary of State now has the power to intervene in the operation of internet domain registries.

It's probably safe to say that this is not one of the best-loved pieces of British intellectual property legislation. It has been criticised, among other things, for going too far in pandering to the demands of the copyright lobby, for not going nearly far enough, for ducking the issue of orphan works, for being rushed through without proper thought and for being poorly organised and arranged. There is no embodiment of a "three strikes and you're out" policy, another exampled of "damned-if-you-do, damned-if-you-don't".

The IPKat suspects that the controversial bits relating to ISPs and copyright will prove to be of only transient interest. However large the penalties, neither the public -- which consists principally of people who don't believe they'll get caught -- nor the public enforcement agencies appear to regard any form of criminal IP offence as a big deal. And suspension of online services is not the most difficult thing in the world for an infringer to circumvent. Merpel says, most of the provisions of this Act constitute amendments of other statutes. This poses two problems: (i) it's often difficult or impossible to understand the full import of its provisions if you don't also have the underlying Act to hand and (ii) we now need consolidated versions of all the amended legislation so that we can work with them in the confident knowledge that we have the most up-to-date version of each statute to work with -- but when can we expect to receive official consolidations?

For: IT Pro, Sky Broadband,

Against: Cory Doctorow, Liberal Democrats, TalkTalk, Struan Robertson

Poll on whether the Act is fair or farce here