Will the Digital Economy Act copyright measures be in place by 2014?

That is the current plan of the industry-friendly UK telecoms regulator Ofcom. In its consultation issued , Ofcom is proposing a tight schedule to get the measures in place. From what can be seen, the schedule relies on a smooth path through the various approvals that have to be given before Ofcom can give industry the go-ahead. That means that the European Commission will have to give the measures the all-clear by late November, and Parliament itself will have to

follow the Commission, without any questions.

 Ofcom plans to have the first notices sent by ISPs to subscribers alleged to have infringed copyright by early 2014. Working backwards, the ISPs apparently need 9 months to get their systems in place, followed by a short period of testing. Coincidentally, the appeals systems also need 9 months. That means, the approvals have to be obtained by January 2013, so the ISPs can be given the starting signal in Febuary.

Of course, all of these timings can be questioned, but they are what Ofcom has stated.

For the approvals to be in place, the measures must be sent to the European Commission in September. This means that the team at Ofcom will spend the summer analysing the responses - at least, that is what we would expect them to do if they are professional. They are supposed to revise the code according the responses before they send it to the European Commission.

 If Ofcom are to meet their own schedule, they will have no time for summer holidays - unless of course, they have already decided what they will send to the Commission and if that were to be the case, it would be a waste of time for anyone to respond to the consultation.

Ofcom is relying on the Commission sending back a tick-box approval by the end of November 2012. When it has that approval, it may lay the measures before Parliament. The measures will go in as secondary legislation. Parliament has the power to annul them, but not to amend.

 Ofcom plans to put the secondary legislation before Parliament in December, or at the very latest, January 2013. However, January would be pushing it very tight on the schedule, so I would expect that Ofcom is really aiming at December.

 Secondary legislation usually flies in and out of Parliament without anyone noticing. It is intended for simple updates such as amending a figure or clarifying something that has already been agreed. It is not intended for detailed, complex and controversial measures such as those in the Digital Economy Act.

 Luckily, there is a Secondary Legislation Scrutiny committee that will look at the draft measures. It has already issued a critical report of the draft Costs SI that was laid before Parliament this month. See Did Ministry breach procedure in DE Act costs order?

 Ofcom is obviously expecting another compliant tick-box exercise from the Secondary Legislation Scrutiny committee. It needs that in order to be ready to give industry the starting signal in February.

Of course, the Westminster Parliament is no so compliant any more. After the expenses scandal it has tried to clean up its act and to question both industry and civil servants. The Ofcom copyright infringement  measures are so complex and the documentation is quite confusing, so it would be frankly astonishing if Parliament did not wish to raise queries. Whether you are for or against the measures, the Ofcom Code, as it is known, is poorly drafted as a piece of legislation.

 It will be all eyes on the Secondary Legislation Scrutiny committee in December.

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 Here is the Ofcom consultation on the Digital Economy Act and copyright infringement measures:

Online Infringement of Copyright and the Digital Economy Act 2010 : Notice of Ofcom’s proposal to make by order a code for regulating the initial obligations

This is an original article from Iptegrity.com. You may re-publish it under a Creative Commons licence, but you should cite my name and provide a link back to iptegrity.com.  Media and Academics – please cite as Monica Horten, Ofcom plan for DE Act 2014 requires compliant Parliament  , in www.iptegrity.com,  23th July   2012 . Commercial users - please contact me.

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