Protecting your business from copyright infringement

The implications of the Digital Economy Act for businesses and employees

At the end of June, Ofcom published its latest instalment in the saga that is the Digital Economy Act, including the draft of the initial obligations code for consultation. 

This code will impose obligations on internet service providers (ISPs) to police customers engaging in online copyright infringement.

The code is one of the more controversial aspects of the Digital Economy Act and works like this: 

  • Rights holders (e.g. music labels and film studios) will be able to inform ISPs that one of their subscribers, on the basis of the allocated IP address, has downloaded content illegally;
  • ISPs must inform customers if their activity has featured on a rights holder infringement report (a customer cannot receive more than one letter a month);
  • If a customer has featured in a report three times or more in a 12-month period, rights holders can be provided with information from ISPs containing sufficient data to enable a rights holder to ask for a court order to reveal the identity of the customer (so that a rights holder can take infringement action against the customer directly);
  • Customers can challenge the allegation of infringement through an independent appeals body.

To begin with the code will cover only ISPs with more than 400,000 customers and an ISP is defined as a provider of broadband enabled fixed lines. It is essentially designed only to target the big six ISPs in the UK: BT, Everything Everywhere, O2, Sky, Talk Talk and Virgin Media.  

Although these ISPs are very much on top of this, ahead of implementation in 2014, businesses that white label a big six ISP to provide to their customers should take note and engage with their ISP to ensure all customer-facing materials and issues are dealt with appropriately for the brand.

Does it apply to coffee shop or meeting room Wi-Fi?  The answer to that is “no”, as they are not fixed line provider with over 400,000 subscribers, though the answer is probably better expressed as “not yet”. During the consultation period for the DEA, there was a concern that coffee shop and meeting room Wi-Fi could not be effectively policed in this way – but if all file-sharers move to those environments because the code does not apply there, it is only a matter of time before the law is changed.

All businesses that provide staff, visitors and customers with internet access should follow some basic rules to ensure that they protect themselves from being the subject of a copyright infringement claim:

  • Ensure that you have the right technology logging in place to be able to tell where traffic came from – so that you can show it was a guest user (or a staff member, but not with authority);
  • Ensure that you can also monitor traffic and react if certain types of traffic spike (e.g. bittorrent traffic);
  • Have a proper internet use policy – for staff this should be part of the employment contract/policies and for visitors something short form is appropriate (can easily fit in a pop-up window or be displayed in meeting rooms/coffee shops);
  • Don’t just rely on formal policies – create a culture of respect for copyright through information and education. After all, many things in your business are protected by copyright too;
  • Under bring your own device (BYOD) schemes, where employees use a laptop or tablet for both work and play, policies reach across both;
  • If staff are found to be illegally downloading/uploading content, act immediately to both discipline the member of staff and delete the infringing material. But note, there is no obligation to whistleblow;
  • Remember, if as a business you idly look on or even condone copyright infringement, it will be very difficult to blame someone else.

Vanessa Barnett (pictured) is a partner at Charles Russell

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