In a speech seen by Out-Law.com, Justin Le Patourel told an audience at the Westminster Media Forum that ISPs will be able to decide whether to apply the rules of Ofcom's proposed anti-piracy code to the Wi-Fi providers in the first instance. He said, though, that it may be left to a new independent appeals body to clarify the scope of its code.
Le Patourel said that Ofcom does not believe that public Wi-Fi providers should be deemed to be 'subscribers' under the terms of the Digital Economy Act (DEA), the law upon which its anti-piracy code is built. However, he warned that it was not up to the regulator to decide on the scope of the term.
"The DEA is clear: only subscribers are the legitimate recipients of notifications; communications providers are not," Le Patourel said. "It is the DEA, not Ofcom, that defines these actors. And it is for qualifying ISPs to apply such definitions. Ultimately the independent appeal body will decide whether an ISP has done this correctly by looking at the facts in each individual case brought to it."
"All Ofcom can do is offer some guidance on our interpretation of the definitions, which may play a role in the event that we consider enforcement action for failure to notify subscribers. To that end, 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 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's head of copyright said.
In June Ofcom published a revised draft anti-piracy code that would require "ISPs with more than 400,000 broadband-enabled fixed lines – currently BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media" to send notifications to their subscribers if it is suspected their account has been used to break copyright laws. Ofcom is required to draw up such a code under the Digital Economy Act.
Under its plans the ISPs would issue "standard form" notifications to customers on the basis of evidence of alleged online copyright infringement gathered by rights holder groups and compiled in a 'copyright infringement report' (CIR). The evidence gathering procedures must be approved by Ofcom. The infringement reports must set out when the alleged infringement was said to have occurred and when the evidence was gathered. Ofcom's code also sets out the standards that infringement reports must meet.
ISPs that issue subscribers with three letters within the space of a year would add the anonymous details of those customers to a 'copyright infringement list'. Rights holders would be able to request access to the list each month and could seek a court order obliging the ISPs to disclose the identity of the suspected infringers so that they can take legal action against them under the Copyright, Designs and Patents Act. Ofcom has said the code will help rights holders to "focus legal action on the most persistent alleged infringers."
Under Ofcom's plans suspected infringers would generally have 20 working days to challenge warning letters from the moment they receive them. An "independent appeals body" will be appointed by the regulator to deal with the cases, although the suspected infringers would have to pay a refundable £20 fee to have their appeals heard.
A range of bodies have asked Ofcom to make it clear that public Wi-Fi providers would fall outside the scope of the new framework. However, Le Patourel said that it is "questionable what appetite copyright owners will have for pursuing actions where there are very large numbers of account users".
He advised public Wi-Fi providers that are "uncertain about how they will be treated" to "install preventative technical tools to help ensure that their connection is not used to infringe". In addition Le Patourel said that the providers can also contact their ISP to explain why they should not be treated as a 'subscriber' for the purposes of code.
"Anyone who receives a letter and thinks they may be a communications provider can contact their provider and explain why this is the case," Le Patourel said. "For businesses, this might include, for example, providing a company number, an explanation of the service they offer, and a statement that they comply with relevant regulations around communications provision such as General Conditions."
Le Patourel also said that most ISPs will have a "strong incentive to identify communications providers accurately" because they "may risk losing business to competitors who do so". He also warned that Ofcom can take action against ISPs that regularly get their classifications wrong and added that the independent appeals body could also be able to determine whether classifications are correct in its rulings.
Ofcom previously told Out-Law.com that it would have to consult on and gain Parliamentary and EU approval for any changes it wishes to make to the scope of its proposed new anti-piracy code once the initial code is finalised. The regulator's current proposed code has to be approved by both Houses of Parliament and the European Commission before it can come into effect.