Digital Economy Act 2010

OFCOM reports

Initial expiry date for Channel 3 and 5 and public teletext licences

1

• (1) In Chapter 1 of Part 2 of the Communications Act 2003 (electronic communications networks and services), after section 134 insert—

(134A) (1) OFCOM must prepare reports in accordance with subsections (2) and (3) and each report must deal with— (a) the electronic communications networks matters listed in section 134B(1), and (b) the electronic communications services matters listed in section 134B(2). (2) The first report must— (a) relate to the position on a day specified in the report which falls within the period of 12 months beginning with the day on which this section comes into force, and (b) be sent to the Secretary of State by OFCOM not more than 2 months after the specified day. (3) A further report must— (a) be prepared for each relevant period, and (b) be sent to the Secretary of State by OFCOM as soon as practicable after the end of the relevant period. (4) “Relevant period” means— (a) the period of 3 years beginning with the day specified in the first report, and (b) each subsequent period of 3 years beginning with the end of the previous period. (5) Where there is a significant change in connection with a matter listed in section 134B(1) or (2) and OFCOM consider that the change should be brought to the attention of the Secretary of State, OFCOM must— (a) prepare a report on the change, and (b) send it to the Secretary of State as soon as practicable. (6) For the purposes of subsection (5), a change is significant if OFCOM consider that it has, or is likely to have, a significant adverse impact on— (a) persons carrying on business in the United Kingdom or a part of the United Kingdom, or (b) the general public in the United Kingdom or a part of the United Kingdom. (7) OFCOM must publish every report under this section— (a) as soon as practicable after they send it to the Secretary of State, and (b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it. (8) OFCOM may exclude information from a report when it is published under subsection (7) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000. (134B) (1) For the purposes of section 134A, the electronic communications networks matters are— (a) the different types of electronic communications network provided in the United Kingdom (“UK networks”), (b) the geographic coverage of the different UK networks, (c) the proportion of the population covered by the different UK networks, (d) the extent to which UK networks share infrastructure, (e) the capacity of the different UK networks, (f) the extent to which the providers of the different UK networks allow other communications providers to use their networks to provide services, (g) the amount of time for which the different UK networks are and are not available, including the steps that have been or are to be taken to maintain or improve the level of availability, (h) the preparations made by providers of UK networks for responding to an emergency, including preparations for restoring normal operation of UK networks disrupted by the emergency, and (i) the standard of the different UK networks in comparison with electronic communications networks provided in a range of other countries, having regard, in particular, to their coverage and capacity. (2) For the purposes of section 134A, the electronic communications services matters are— (a) the use of the electromagnetic spectrum for wireless telegraphy in the United Kingdom, (b) the different types of electronic communications service provided in the United Kingdom (“UK services”), (c) the geographic coverage of the different UK services, (d) the proportion of the population covered by the different UK services, (e) the amount of time for which the different UK services are and are not available, including the steps that have been or are to be taken to maintain or improve the level of availability, (f) the preparations made by providers of UK services for responding to an emergency, including preparations for restoring normal operation of UK services disrupted by the emergency, and (g) the standard of the different UK services in comparison with electronic communications services provided in a range of other countries. (3) The preparations referred to in subsections (1)(h) and (2)(f) include— (a) the steps taken to assess the risks of different types of emergency occurring, (b) the steps taken to reduce or remove those risks, and (c) the testing of proposed responses to different types of emergency. (4) In a report under section 134A, OFCOM are required to include only information about, and analysis of, such networks, services and providers as they consider appropriate. (5) In this section “emergency” means an event or situation that seriously disrupts a UK network or UK service. (134C) (1) OFCOM must, if requested to do so by the Secretary of State— (a) prepare a report on matters specified by the Secretary of State relating to internet domain names, and (b) send the report to the Secretary of State as soon as practicable. (2) The specified matters may, in particular, include matters relating to— (a) the allocation and registration of internet domain names, and (b) the misuse of internet domain names. (3) OFCOM must publish every report under this section— (a) as soon as practicable after they send it to the Secretary of State, and (b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it. (4) OFCOM may exclude information from a report when it is published under subsection (3) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.

• (2) In section 135(3) of that Act (information required for purposes of Chapter 1 functions), after paragraph (ib) insert—

(ic) preparing a report under section 134A; (id) preparing a report under section 134C;

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OFCOM reports on media content

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After section 264 of the Communications Act 2003 insert—

(264A) (1) When carrying out a review under section 264 for a period, OFCOM must also carry out a review of the extent to which material included in media services during that period (taken together over the period as a whole) contributed towards the fulfilment of the public service objectives. (2) Every report under section 264 must— (a) include a report on the matters found on the review under this section, (b) specify, and comment on, whatever changes appear to OFCOM to have occurred, during the period to which the report relates, in the extent to which the public service objectives have been fulfilled, (c) specify, and comment on, whatever changes appear to OFCOM to have occurred, during that period, in the manner in which those objectives are fulfilled, and (d) set out OFCOM's conclusions on the current state of material included in media services. (3) “The public service objectives” are the objectives set out in paragraphs (b) to (j) of section 264(6) (as modified by subsection (4)). (4) Paragraphs (b) to (j) of section 264(6) have effect for the purposes of subsection (3) as if— (a) references to the relevant television services were to media services, and (b) references to programmes were to material included in such services. (5) In this section— - “material” does not include advertisements; - “media services” means any of the following services that are available to members of the public in all or part of the United Kingdom— 1. television and radio services, 2. on-demand programme services, and 3. other services provided by means of the internet where there is a person who exercises editorial control over the material included in the service. (6) The services that are to be taken for the purposes of this section to be available to members of the public include any service which— (a) is available for reception by members of the public (within the meaning of section 361); or (b) is available for use by members of the public (within the meaning of section 368R(4)).

Online infringement of copyright

Obligation to notify subscribers of reported infringements

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After section 124 of the Communications Act 2003 insert—

(124A) (1) This section applies if it appears to a copyright owner that— (a) a subscriber to an internet access service has infringed the owner's copyright by means of the service; or (b) a subscriber to an internet access service has allowed another person to use the service, and that other person has infringed the owner's copyright by means of the service. (2) The owner may make a copyright infringement report to the internet service provider who provided the internet access service if a code in force under section 124C or 124D (an “initial obligations code”) allows the owner to do so. (3) A “copyright infringement report” is a report that— (a) states that there appears to have been an infringement of the owner's copyright; (b) includes a description of the apparent infringement; (c) includes evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered; (d) is sent to the internet service provider within the period of 1 month beginning with the day on which the evidence was gathered; and (e) complies with any other requirement of the initial obligations code. (4) An internet service provider who receives a copyright infringement report must notify the subscriber of the report if the initial obligations code requires the provider to do so. (5) A notification under subsection (4) must be sent to the subscriber within the period of 1 month beginning with the day on which the provider receives the report. (6) A notification under subsection (4) must include— (a) a statement that the notification is sent under this section in response to a copyright infringement report; (b) the name of the copyright owner who made the report; (c) a description of the apparent infringement; (d) evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered; (e) information about subscriber appeals and the grounds on which they may be made; (f) information about copyright and its purpose; (g) advice, or information enabling the subscriber to obtain advice, about how to obtain lawful access to copyright works; (h) advice, or information enabling the subscriber to obtain advice, about steps that a subscriber can take to protect an internet access service from unauthorised use; and (i) anything else that the initial obligations code requires the notification to include. (7) For the purposes of subsection (6)(h) the internet service provider must take into account the suitability of different protection for subscribers in different circumstances. (8) The things that may be required under subsection (6)(i), whether in general or in a particular case, include in particular— (a) a statement that information about the apparent infringement may be kept by the internet service provider; (b) a statement that the copyright owner may require the provider to disclose which copyright infringement reports made by the owner to the provider relate to the subscriber; (c) a statement that, following such a disclosure, the copyright owner may apply to a court to learn the subscriber's identity and may bring proceedings against the subscriber for copyright infringement; and (d) where the requirement for the provider to send the notification arises partly because of a report that has already been the subject of a notification under subsection (4), a statement that the number of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures. (9) In this section “notify”, in relation to a subscriber, means send a notification to the electronic or postal address held by the internet service provider for the subscriber (and sections 394 to 396 do not apply).

Obligation to provide infringement lists to copyright owners

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After section 124A of the Communications Act 2003 insert—

(124B) (1) An internet service provider must provide a copyright owner with a copyright infringement list for a period if— (a) the owner requests the list for that period; and (b) an initial obligations code requires the internet service provider to provide it. (2) A “copyright infringement list” is a list that— (a) sets out, in relation to each relevant subscriber, which of the copyright infringement reports made by the owner to the provider relate to the subscriber, but (b) does not enable any subscriber to be identified. (3) A subscriber is a “relevant subscriber” in relation to a copyright owner and an internet service provider if copyright infringement reports made by the owner to the provider in relation to the subscriber have reached the threshold set in the initial obligations code.

Approval of code about the initial obligations

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After section 124B of the Communications Act 2003 insert—

(124C) (1) The obligations of internet service providers under sections 124A and 124B are the “initial obligations”. (2) If it appears to OFCOM— (a) that a code has been made by any person for the purpose of regulating the initial obligations; and (b) that it would be appropriate for them to approve the code for that purpose, they may by order approve it, with effect from the date given in the order. (3) The provision that may be contained in a code and approved under this section includes provision that— (a) specifies conditions that must be met for rights and obligations under the copyright infringement provisions or the code to apply in a particular case; (b) requires copyright owners or internet service providers to provide any information or assistance that is reasonably required to determine whether a condition under paragraph (a) is met. (4) The provision mentioned in subsection (3)(a) may, in particular, specify that a right or obligation does not apply in relation to a copyright owner unless the owner has made arrangements with an internet service provider regarding— (a) the number of copyright infringement reports that the owner may make to the provider within a particular period; and (b) payment in advance of a contribution towards meeting costs incurred by the provider. (5) The provision mentioned in subsection (3)(a) may also, in particular, provide that— (a) except as provided by the code, rights and obligations do not apply in relation to an internet service provider unless the number of copyright infringement reports the provider receives within a particular period reaches a threshold set in the code; and (b) if the threshold is reached, rights or obligations apply with effect from the date when it is reached or from a later time. (6) OFCOM must not approve a code under this section unless satisfied that it meets the criteria set out in section 124E. (7) Not more than one approved code may have effect at a time. (8) OFCOM must keep an approved code under review. (9) OFCOM may by order, at any time, for the purpose mentioned in subsection (2)— (a) approve modifications that have been made to an approved code; or (b) withdraw their approval from an approved code, with effect from the date given in the order, and must do so if the code ceases to meet the criteria set out in section 124E. (10) The consent of the Secretary of State is required for the approval of a code or the modification of an approved code. (11) An order made by OFCOM under this section approving a code or modification must set out the code or modification. (12) Section 403 applies to the power of OFCOM to make an order under this section. (13) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

Initial obligations code by OFCOM in the absence of an approved code

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After section 124C of the Communications Act 2003 insert—

(124D) (1) For any period when sections 124A and 124B are in force but for which there is no approved initial obligations code under section 124C, OFCOM must by order make a code for the purpose of regulating the initial obligations. (2) OFCOM may but need not make a code under subsection (1) for a time before the end of— (a) the period of six months beginning with the day on which sections 124A and 124B come into force, or (b) such longer period as the Secretary of State may specify by notice to OFCOM. (3) The Secretary of State may give a notice under subsection (2)(b) only if it appears to the Secretary of State that it is not practicable for OFCOM to make a code with effect from the end of the period mentioned in subsection (2)(a) or any longer period for the time being specified under subsection (2)(b). (4) A code under this section may do any of the things mentioned in section 124C(3) to (5). (5) A code under this section may also— (a) confer jurisdiction with respect to any matter (other than jurisdiction to determine appeals by subscribers) on OFCOM themselves; (b) provide for OFCOM, in exercising such jurisdiction, to make awards of compensation, to direct the reimbursement of costs, or to do both; (c) provide for OFCOM to enforce, or to participate in the enforcement of, any awards or directions made under the code; (d) make other provision for the enforcement of such awards and directions; (e) establish a body corporate, with the capacity to make its own rules and establish its own procedures, for the purpose of determining subscriber appeals; (f) provide for a person with the function of determining subscriber appeals to enforce, or to participate in the enforcement of, any awards or directions made by the person; (g) make other provision for the enforcement of such awards and directions; and (h) make other provision for the purpose of regulating the initial obligations. (6) OFCOM must not make a code under this section unless they are satisfied that it meets the criteria set out in section 124E. (7) OFCOM must— (a) keep a code under this section under review; and (b) by order make any amendment of it that is necessary to ensure that while it is in force it continues to meet the criteria set out in section 124E. (8) The consent of the Secretary of State is required for the making or amendment by OFCOM of a code under this section. (9) Section 403 applies to the power of OFCOM to make an order under this section. (10) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

Contents of initial obligations code

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After section 124D of the Communications Act 2003 insert—