The Government's controversial Digital Economy Bill makes an
internet access subscriber liable for the copyright-infringing
behaviour of others. Internet law expert Professor Lilian Edwards
had previously warned that without an exemption the measure would
have a damaging effect.
The Government has now published guidance to the Bill which
clarifies that organisations providing access will be granted no
such exemption.
The Bill says that action can be taken not just against the
person accused of engaging in copyright infringement, but also
against "a subscriber to an internet access service [who] has
allowed another person to use the service, and that other person
has infringed the owner’s copyright by means of the service".
Edwards, who is Professor of Internet Law at the University of
Sheffield told podcast OUT-LAW Radio last November that this would
have major implications for any organisation offering Wi-Fi
access.
"A lot of people secure [their Wi-Fi networks] but a lot of
people don't," Edwards said. "I think there is a strong likelihood
that having unsecured Wi-Fi might well be seen as allowing other
people to use their service which means that effectively you would
become responsible for their alleged copyright infringement."
She said that if the new law meant that many organisations would
stop offering that access it would be a "sad loss".
Advice published by the Government says that fixed-line internet
access in libraries is unlikely to be used for copyright
infringement because library-owned computers can be prevented from
running the necessary software. It said that it had considered
exempting libraries from liability when it came to Wi-Fi networks
but had decided against the move.
"We have considered the extent to which an exemption might be
provided in the legislation," said guidance published by the
Department for Business, Innovation and Skills, which is
responsible for the Digital Economy Bill. "We cannot give blanket
exemptions for any such establishment."
"This would send entirely the wrong signal and could lead to
'fake' organisations being set up, claiming an exemption and
becoming a hub for copyright infringement. Similarly existing
establishments might simply ignore the issue of copyright
infringement (or treat as 'too difficult') and allow users to
infringe copyright with effective immunity," it said.
An organisation's legal obligations change depending on whether
it is considered by the terms of the Bill to be an internet service
provider (ISP) or a subscriber to an ISP.
The Government advice said that the situation in universities is
more complex than that in libraries because universities will
sometimes be deemed to be ISPs under the Bill and will sometimes
only be subscribers to a service provided by academic network
JANET.
"It is clear that JANET and some universities already take far
stricter action on copyright infringement than is being proposed in
the Bill. For others, a baseline set of obligations and actions
might support them in tackling online infringement of copyright,"
said the guidance.
"The Government does not consider that it would be appropriate
to create a simple exemption for universities, other [further and
higher education] establishments – or indeed for libraries," it
said. "We expect for those establishments where effective action is
already being taken, that it makes sense for all parties to
continue with existing arrangements. For others, the provision of
generic advice should allow them to consider what steps they might
take and for any appeals to be considered by the independent body
on a case by case basis."
The lack of an exemption for bodies providing public Wi-Fi
access may reduce the number of organisations making access
available. Edwards told OUT-LAW Radio last year that the law's
requirements could act in contravention of other Government
policies.
"The answer to [the law's requirements] is maybe [the connection
owner] has to secure his Wi-Fi. But if that's so you are making
that the new law, and that points against other policy goals like
digital inclusion. You will make life very difficult not just for
individuals but for institutions that like to offer public Wi-Fi
like hotels and cafes," she said. "That may all have to be locked
down so that people will avoid copyright liability and that seems
like a sad loss."
The Government's guidance said that businesses which provide
Wi-Fi access will differ in their suitability for use by copyright
infringers. Coffee shop access is less likely to be used, it said,
than the high-speed access granted at hotels, holiday parks and
conference centres. Any organisation likely to face the use of
their network for infringement should be provided with advice
"which is relevant and proportionate to the establishment", it
said.
The guidance said that the Government would add a requirement in
the Bill that the code which will govern the details of the Bill's
operation will force ISPs to provide advice on the operation of
networks and how to secure or restrict them to help reduce
copyright infringement.
"Also there is scope for the code to reflect the position of
libraries, universities or wi-fi providers," it said. "For example,
there may be a case for such institutions to have differing sets of
thresholds which trigger notification letters. This would be a
matter for the code and we would urge the relevant representative
bodies to consider now how bets to engage in the code development
process."
Disclaimer: We hope you find OUT-LAW’s content useful. It’s prepared by the lawyers at Pinsent Masons. Please remember, though, that it’s intended as general information only. It’s not legal advice. If that’s what you’re seeking, please
contact us. See also: our
full disclaimer
