This could result in public institutions having their internet connection temporarily cut or otherwise restricted should three instances of illicit file sharing be detected on their connection. It also puts public bodies at increased risk of civil lawsuits should these institutions appear on infringement lists (Section 4 of the Act*).
Last year, Copyright for Knowledge estimated the cost to universities alone in dealing with their obligations under the Digital Economy Act at between £24m-£56m over the first three years (these figures were presented to a public meeting at the British Library last year).
Groups representing schools, libraries and universities were until last week under the impression they would be granted special protection when Ofcom drafts the rules for dealing with copyright infringement under the Act, known as the Initial Obligations Code.
A source told me they had previously received assurances from both civil servants and the Minister, and they feel thoroughly let down by the lack of any clear assurances from Ofcom at this late stage in the drafting of the Code.
As recently as last June I'd separately heard directly from a contact working on the Code that public intermediaries would not be affected by the three-strikes rules, a revelation which had lead me to question why other groups offering shared WiFi shouldn't also be exempt (noting concerns in paragraph 240 of the Judicial Review into the Act around a "chilling effect" on free and open internet access).
BPI and MPA lobbying fingered in Ofcom report
Separately, clear evidence emerged in an official document (pdf - see section 4) released over summer that the BPI (British Phonographic Industry) and MPA (Motion Picture Association) had pushed to "nudge" or "educate" internet users into securing their Wi-Fi access points, a scheme which included an undertaking to secure all internet access points or, if not using Wi-Fi, describe the device used to access the internet and circumstances that allowed an "unauthorised person" to commit copyright infringement over their connection.
Thankfully it appears at this stage such an approach has been rejected by Ofcom, however such rhetoric should be noted not only for its clear aim of closing down open Wi-Fi, but also for its potential to infringe Article 8 - respect for one's private and family life - under the European Convention on Human Rights (ECHR).
"The scheme proposes that the subscriber signs a statement of truth that the facts stated in the appeal are correct. If using a Wi-Fi connection at the time of the infringement the subscriber must then confirm whether this connection was or has subsequently been secured; if not they are asked to agree to take steps to secure the connection and to ensure that it is not used to infringe copyright. If not using a Wi-Fi connection, they are required to describe the device they use to access the internet and the circumstances under which they believe that some unauthorised person was able to access the internet to infringe copyright and whether they have taken steps subsequently to prevent such similar access."
Is it really fair and proportionate to expect internet users to describe their domestic arrangements to prove they were innocent of an allegation of copyright infringement? An allegation made by the rights-holders themselves.
The suggestion that any third party using the connection is "unauthorised" indicates that groups proposing such an approach are refusing to accept the reality that most internet connections are shared. The third party could be authorised to use the connection, and, so long as the account holder was not complicit or reasonably aware that copyright infringement was taking place, they would have no legal liability under UK law.
Account holders have a right to a private family life, yet the Digital Economy Act could see householders being asked to explain who was in their house and using their internet connection at any given time in order to defend themselves against allegations.
The protection of copyright is not worthy of such an invasion into our home life. In fact, as I noted on my former blog 18 months ago, in more serious circumstances such as finding out who was driving a car at a particular time, the burden of proof doesn't shift so far in favour of the prosecutor.
Such an approach puts the onus on the account holder to prove their innocence, and this surely is not compatible with Article 6 of the ECHR (right to fair trial and presumption of innocence).
The one light at the end of the tunnel is that this shambolic law is now unlikely to come into force until 2013 - a full three years after it was passed. An Ofcom source indicates that setting up the bodies to process copyright infringement notices and appeals will be at least as complex as drafting the Initial Obligations Code. Given that the latter has been 18 months in the drafting, that puts a date of April 2013 on the first notification, notwithstanding the 3 month standstill period when notifying the EC of each draft!
* A court order will be required to unmask the account owner, however legal experts tell me this order could be a trivial matter if presented with evidence of copyright infringement using the IP address(es) assigned to the account holder.