Digital Economy Act 

Last update: 31 October 2011

The Digital Economy Act has attracted controversy from its inception. Although the Act passed into Law as part of the wrap up process at the end of the previous Parliament, it has not been implemented yet, the practical aspects of implementing the measures to deal with copyright infringement being delegated to Ofcom. They have issued on various aspects of the implementation including, in July 2010, one on the draft Initial Obligations Code which defines how the process will operate The draft Code was targeted at the seven major commercial Internet Service Providers although included the option to expand the scope of its coverage. The final Inital Obligations Code was due to be published in November 2010 but was delayed pending the completion of the judicial review instigated by BT and TalkTalk that took place in the February and March 2011. According to the progress update issued by the Government on 3 August, the final version will be published shortly and will then be submitted to the EU for consideration. This consideration will take a minimum of three months. However, BT and TalkTalk have been granted leave to appeal the original judgement which added to Ofcom's assertion in October that some complex issues remain, the code is not expected imminently.

In late July/early August there were two developments on the question of whether courts have the power to order network providers to block access to websites. On 3 August the Government has announced that it will not be bringing into force sections 17 and 18 of the Digital Economy Act 2010, which would have created such a power. However the previous week the High Court decided that it already had the power, under section 97A of the Copyright Designs and Patents Act 1988, to order BT to block access to newzbin (a website that had already been found to be a serious infringer of copyright) and its apparent successor newzbin2. The judgement requires BT to add newzbin URLs to the system it already deploys to restrict access to child abuse images identified by the Internet Watch Foundation. It is not clear whether the judgement applies to other ISPs without further recourse to the courts. Further details are available on Andrew Cormack's blog .

Further, the Commons Select Committee on Culture, Media and Sport launched an inquiry into the Act and its likely effectiveness in late 2010. The inquiry was suspended pending completion of the legal action mentioned above. The announcement came after UCISA had submitted our evidence ; we will continue to review the planned implementation of the Act and will submit revised evidence as and when the inquiry is reopened.

The judicial review found in favour of BT and Talk Talk on only one issue: that it was unlawful to mandate for ISPs to contribute to the costs of Ofcom. The Cost Sharing Regulations, which were already law, have been re-issued with amendments to reflect the outcome of the judicial review hearing. However ISPs will still have to contribute 25% of their own costs in implementing the Initial Obligations Code and of handling any Appeals, with all remaining costs coming from rightsholders. An Ofcom paper considering the costs involved in the appeals process has also been published; the Government press release suggested a fee of £20 would be levied against subscribers wishing to appeal.

Background to the provisions for dealing with Copyright infringement

Background to the Act itself

Guidance for universities and colleges on the Act.