To much consternation, the Digital Economy Act 2010 became law in April this year via the so-called "wash up" process. Both the process by which the act became law and the substantive rules of the act, have been widely criticised, writes Kolvin Stone, partner at Fox Williams LLP.
Following a court ruling in Germany, concern has been expressed that, under the act, individuals may be responsible for copyright infringements that occur on their wireless networks. In Germany, the owner of a wireless internet access network was fined because he did not secure it with a password and it was used to download music without the copyright holder's permission.
Even with the introduction of the act, it is unlikely that a UK court would follow this approach. Although the detail of the act has not been worked out fully, it is difficult to envisage how a situation where a private individual would be held responsible for actions of third party gaining unauthorised access to their wireless network.
In the context of intellectual property infringement, the main thrust of the act is internet service providers (ISPs) are required to:
• Notify their subscribers if the Internet Protocol (IP) addresses associated with them are reported by copyright owners as being used to infringe copyright.
• Keep track of the number of reports about each subscriber, and compile, on an anonymous basis, a list of some or all of those who are reported on.
After obtaining a court order to obtain personal details, copyright owners will be able to take action against those included in the list. If this does not reduce online copyright infringement, then the secretary of state has the power to impose further obligations ("technical obligations") on ISPs. These would be imposed on the basis of reports from industry regulator Ofcom or any other relevant considerations, and would require ISPs to take measures to limit internet access to certain subscribers.
The intention is that technical measures would be used against serious repeat infringers only. Technical measures would be likely to include bandwidth capping or shaping that would make it difficult for subscribers to continue file-sharing, but other measures may also be considered. If appropriate, temporary suspension of broadband connections could be considered.
It would be absurd if private individuals were considered ISPs for these purposes. It would not be possible for private individuals to administer wireless networks in the same way as ISPs.
It is also worth noting that the case in Germany did not suggest that the individual was guilty of copyright infringement merely that they failed to take certain measures to protect the network. This would also be the case in the UK. The Act contains safeguards to ensure that individuals would be able to absolve themselves in the event that the copyright infringement was caused by unauthorised access to a wireless network.