In passing the Act, Parliament?s intention was that Ofcom should apply the obligations in a proportionate way, with the code initially covering only the larger fixed-line ISPs, but with the clear message that, should levels of copyright infringement on other networks, including mobile, increase then those ISPs will similarly be required to comply with the obligations.
Ofcom proposed, therefore, that fixed-line ISPs with over 400,000 subscribers would be covered initially.This would mean that the seven largest ISPs ? BT, Talk Talk, Virgin Media, Sky, Orange, O2 and Post Office ? would be covered by the code from the outset.
The code also sets out the threshold for including subscribers on a copyright infringers list which must be compiled by ISPs.
According to the proposal, ISPs will have to record the number of notifications sent to their subscribers and maintain an anonymised list of alleged serial copyright infringers.
Copyright holders can then request information on this list and pursue a court order to identify serial infringers and take legal action against them.
Ofcom is proposing a three stage notification process for ISPs to inform subscribers of copyright infringements and proposes that subscribers which have received three notifications within a year may be included in a list requested by a copyright owner.
Ofcom added that it would establish an independent subscriber appeals mechanism for consumers who believe they have received incorrect notifications, arrangements for enforcement and dealing with industry disputes, as well as sharing the costs arising from the code.
The proposed code of practice implements legislative measures aimed at reducing online copyright infringement and is part of Ofcom's new duties under the Digital Economy Act 2010. The Act requires that the code of practice is implemented no later than eight months from Royal Assent, including approval from the European Commission.
Subject to consultation and approval, Ofcom expects the code to come into force in early 2011.
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