The Digital Economy Act 2017 will bring in new measures affecting the world of intellectual property. Whilst not yet in force, the aim of the provisions within are to improve internet connectivity and further protect online users.
Matt Hancock, Minister of State for Digital and Culture, stated how the advancements in broadband rollout, rebuffed consumer support and protection for children online will ultimately improve the British economy.
Some of the key provisions are outlines below:
Online Copyright Infringement
One particularly contentious measure is to introduce a maximum sentence of 10 years imprisonment (under clause 26). The current maximum sentence under s.107(2A) of the Copyright, Designs and Patents Act 1988 (CDPA) is 2 years.
Under the new legislation a person will be liable should they (1) know or have reason to believe that they are infringing a work’s copyright, and (2) intend to make a personal gain for themselves or another, or know or have reason to believe that communicating work to the public will cause loss to the owner of the work, or expose that person to a risk of loss.
Such a measure is controversial as although aimed at preventing the distribution of copyright protected work, there is an increasingly grey area as to an end user’s liability in streaming illegal content. Under the InfoSoc Directive, making reproductions of protected work can infringe rights holder’s protections. Since streaming content requires such a copy to be made, ultimately users may well in breach of the Directive. The recent Filmspeler case notes the potential issue for users, and with the circulation of Kodi boxes, liability could fall on far greater numbers than originally indended.
Whilst the Government has stated that the maximum penalty will be reserved for the most serious offenders, the position is far from binary.
Broadband Becomes A Universal Service
The Secretary of State is required to publish a universal services order stating what facilities are available to all citizens. Section 65 of the Communities Act 2003 (CA) will be amended under the new act to include the right to access broadband.
Currently, the CA makes no provision for broadband as a universal service and such an amendment will likely provide for the right to demand a 10Mbps connection.
Retransmission of Broadcasts
An exception exists under section 73 and 73A of the CDPA which states that the retransmission of wireless broadcasts by cable does not amount to copyright infringement. Under the new legislation this exception is to be abolished. Now regarded as defunct , the measure was originally intended to help broadcast analogue transmissions in remote areas.
The exception was exploited by online providers looking to monetise as they retransmitted content from elsewhere onto their websites. The now infamous TVCatchup case is a good example of this, as the site rebroadcast what was essentially Freeview television via their website.
This change bolsters the InfoSoc Directive which allows broadcasters to prevent retransmission of their work via the internet.