( 09 April 2010)

The Digital Economy Bill has now been published as the Digital Economy Act 2010, following Royal Assent. The Act includes provisions relating to the UK’s communications infrastructure, public service broadcasting, copyright licensing and online infringement of copyright, and security and safety online and in video games. Some of the measures in the Act will come into effect immediately with others coming into effect in two months’ time. Many of the Act’s provisions require further public consultation and in some cases approval by Parliament, before they can be implemented. The act was widely opposed by the British Digital Business community and many commentators left that the period of consultation and discussion was insufficient for wide-ranging legislation like the Digital Economy Act.

In an open letter, COADEC (The Coalition for a Digital Economy) wrote 'The Digital Economy Bill in its current form risks impacting the innovation sector of the UK’s digital economy in unintended and wholly negative ways.' Their letter, signed by several companies and individuals continued..

'The Digital Economy Bill bizarrely risks choking innovation in the long term, actually leading to a less innovative digital economy and thus less copyright to actually protect. It currently very narrowly protects a slice of “traditional” IP in a way that unintentionally damages future innovation and thus the UK’s fast-growing digital economy. While patent and copyright are important and remain relevant to the UK’s creative economy, we believe the future Digital Economy is best served by policy which removes barriers to fast innovation, not old-fashioned protectionism.

The DE Bill in its current form will stifle innovation specifically preventing innovative UK businesses from participating in the revolution of social media, particularly as regards innovative British businesses engaged in user generated content.

Furthermore, the DE Bill’s current approach to WiFi will have a profoundly retrograde effect on the ability of British businesses to innovate. Businesses providing Wi-Fi services will be left open to penalties for copyright infringement making it impossible for them to offer these services and thus compete in the digital economy.

Specifically under Clause 18 of the Bill, the terms “reasonable steps” remain undefined and even if a business does everything it can to lock down its networks there remains no guarantee that it will not be held liable for traffic which is deemed to infringe copyright.

Clause 18 means that any business which provides Internet access for it staff will end up being defined as an “operator” (”a person or persons in joint or sole control of the decisions to make content accessible at or via an online location”). An online location is defined as “a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible.” Boiled down, this simply means Internet access.

Placing the liability for civil copyright infringement on an internet account rather than an infringing individual will profoundly affect their ability to innovate and compete in the globalised digital economy.'

The online infringement of copyright provisions of the Act will require secondary legislation before they can be implemented.

Contents of the Act

The Act includes provisions regarding:

• OFCOM reports
• Online infringement of copyright
• Powers in relation to internet domain registries
• Channel Four Television Corporation
• Independent television services,
• Independent radio services,
• Access to electromagnetic spectrum
• Video recordings
• Copyright and performers' property rights: penalties
• Public lending right

Commencement of the Act’s provisions

The majority of the Act’s provisions come into effect two months after the Act is published.

Some of the Act's provisions come into immediate effect, including:

• Sections 5-7 regarding the initial obligations code;
• Section 15 regarding the sharing of costs in relation to provisions on online infringement of copyright; and
• Sections 30 to 32 regarding digital radio switchover and renewal of radio licences.

Other provisions come into affect on a date to be appointed by the Secretary of State in secondary legislation.