ISPs with fewer than 400,000 subscribers will not be initally covered by the draft Ofcom code of conduct on online copyright infringement

The draft code of practice aimed to reduce online copyright infringement has been published by Ofcom.

Implementing measures aimed at reducing online copyright infringement as part of its new duties under the Digital Economy Act 2010, Ofcom expects the code to come into force in early 2011, subject to consultation and approval.

The act requires that the code of practice is implemented no later than eight months from Royal Assent, including approval from the European Commission.

It sets out how and when Internet Service Providers (ISPs) covered by the code will send notifications to their subscribers to inform them of allegations that their accounts have been used for copyright infringement.

Ofcom has proposed that fixed-line ISPs with over 400,000 subscribers will be covered initially, meaning that the seven largest ISPs – BT, Talk Talk, Virgin Media, Sky, Orange, O2 and Post Office – will be covered by the code from the outset.

This will mean that ISPs with fewer than 400,000 subscribers will not be governed by the code, neither will mobile phone companies. Policies on cutting off accused file sharers, one of the most controversial aspects of the Digital Economy Act, are yet to be raised in policy.

It also sets out the threshold for including subscribers on a copyright infringers list which must be compiled by ISPs. Providers will also 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.

John Lovelock, chief executive of the Federation Against Software Theft (FAST), said that the proposal was good news, as activity is moving forward. However he said that FAST has asked the secretary of state for culture, Jeremy Hunt, in a letter to extend the introduction of the code until April 2011 from January as it will require three months consultation in the UK, plus three months in the EU.

Lovelock said: “If they stick to the stated deadline instead of the code being an industry compiled document it will have to be completely written by Ofcom thus defeating the object of an ‘industry code'.

“The UK software sector is of vital importance to the UK economy, employing over 400,000 and estimated to contribute well over £20 billion. The software industry is also in a unique position as we know that copyright law has not been able to keep up with technology, something this code of practice seeks to rectify.”

Jim Killock, executive director of the Open Rights Group, said: “This is another extremely rushed process, forced by the Digital Economy Act's absurd timetables. There are huge unanswered questions, not least whether innocent people will have to pay to appeal.

“The Government needs to draw a clear line between the notifications and potential disconnection regimes. Otherwise, Ofcom can't tell people what these accusations mean, which is absurd.

“Both Jeremy Hunt and the Liberal Democrats recognised the likely flaws of the act during the debates. It is Peter Mandelson's act and they should not feel obliged to do his dirty work.”

Ofcom will establish an independent, robust 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.

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