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A qualifying copyright holder is a new concept under the Digital Economy Act. But what is it? And is Ofcom introducing a two-tier copyright regime, where those with the valuable rights get privileges and individual authors get side-lined?


Ofcom's Initial Obligations Code, the euphemistically obscure title for the UK's 3-strikes policy,  includes something called a Qualifying Copyright Holder.

 The definition is as obtuse and incoherent as everything in the Ofcom document, which outlines the implementation of the Digital Economy Act.  The draft order defines a "qualifying Copyright Owner" as one who has "has given an estimate of the number of copyright infringement reports it intends to make in a notification period to a qualifying internet service provider".  And it  adds that the qualifying copyright owner has to meet other obligations for paying towards the costs of the 3-strikes measures.

 What it means  is that the only rights-holders who will ‘benefit' under the 3-strikes measures are those who have a

sufficiently large business to submit high volumes of allegations against Internet users, and who have a corporate budget to match. They will have to be large enough, in corporate terms, to deal on even terms with the likes of British Telecom, Sky, and Virgin.


And that means that small individual rights holders will have no right to ‘protect their copyright' under these measures, should they desire to do so.  The measures will be restricted to the rich, multi-national corporations which control large catalogues of rights, and to the collecting societies which will take the costs for 3-strikes out of the royalties which they pay to musicians and composers.


The concept of the ‘Qualifying copyright holder' makes it abundantly clear that this is a protectionist law, for the benefit of large industry. Far from being about the right to trade, this is a restrictive measure for the benefit of a small cartel of entertainment companies.


It also seems that it begins to drive a wedge through the concept of copyright. The will be two tiers of rights, classified by the financial strength of the rights-owner.  Those are owned by wealthy owners and enforced under measures such as 3-strikes. And those which are held by individual authors and creators, and smaller companies,  who cannot afford to partake of such schemes.


This is not a defence of 3-strikes, and I do not advocate that smaller copyright owners should be brought into it.


It is, however, an attempt to hold up the mirror to a serious, long-term, and potentially damaging implication of the Digital Economy Act.  


Which begs the question: isn't it about time the Conservatives wake up to this?


Post-script: Another interesting question, and noting the cost implilcations, is whether the BBC, which lobbied for the 3-strikes policy, counts as a Qualifying Copyright Holder? 



"Qualifying Copyright Owner" means a Copyright Owner which meets the criteria set out in paragraph 2.1 of this Code



 2.1 A Copyright Owner is a Qualifying Copyright Owner to which this Code applies where:

2.1.1 the Copyright Owner has given an estimate of the number of copyright infringement reports it intends to make in a notification period to a Qualifying ISP in accordance with Articles 5, 6 and 7 of The Online Infringement of Copyright (Initial Obligations)(Sharing of Costs) Order; and


2.1.2 has met its obligations in relation to the payment of costs in accordance with Articles 5, 6 and 7 of The Online Infringement of Copyright (Initial Obligations)(Sharing of Costs) Order.


2.2 An estimate under paragraph 2.1.1 must be provided in writing to the Qualifying ISP. Such estimate shall be sent at least 2 months in advance of the start of the notification period to which it relates.


2.3 A Qualifying Copyright Owner must comply with the applicable obligations set out in the Code. Any failure by a Qualifying Copyright Owner to comply with the obligations set out in the Code in respect of the issue of a CIR will render that CIR invalid and a Qualifying ISP receiving such a CIR will not be subject to the requirements of the Code in respect of that CIR.


This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010) DE Act: does the UK qualify for   a 2-tier copyright regime? 2 June  2010


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Copyright Enforcement Enigma launch, March 2012

In 2012, I presented my PhD research in the European Parliament.

Don't miss Iptegrity!  RSS/ Bookmark is the website of Dr Monica Horten. She is a policy analyst specialising in Internet governance & European policy, including platform accountability. She is a published author & Visiting Fellow at the London School of Economics & Political Science. She served as an independent expert on the Council of Europe Committee on  Internet Freedom. She has worked on CoE, EU and UNDP funded projects in eastern Europe and the Caucasus. In a voluntary capacity, she has led UK citizen delegations to the European Parliament. She was shortlisted for The Guardian Open Internet Poll 2012.

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