Information and assistance
39. OFCOM may require a qualifying entity to provide them with all such information and assistance as they consider necessary for the purposes of carrying out their functions under this Code and the relevant copyright infringement provisions.
Notice of contravention
40.—(1) OFCOM may give a notice to a qualifying entity where OFCOM determine that there are reasonable grounds for believing that a qualifying entity is contravening, or has contravened—
(a) an initial obligation; (b) a provision of this Code; or
(c) a direction made by OFCOM or a determination or direction of the appeals body made in accordance with any provision of this Code.
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(b) specifies the contravention in respect of which a determination has been made;
(c) specifies any financial penalties which OFCOM propose to impose under paragraph 42; (d) specifies any directions which OFCOM propose to make under paragraph 41 or
paragraph 43; and
(e) specifies the period during which the person notified has the opportunity to make representations to OFCOM about the matters notified.
(3)The period for making representations must be a period greater than ten working days beginning with the day on which the notice of contravention was sent.
(4)The period for representations may be shortened if OFCOM—
(a) have reasonable grounds for believing that the case is an urgent case or a case of serious and repeated contravention; and
(b) consider that a shorter period would be appropriate.
(5)A notice of contravention may be given in respect of more than one contravention.
Final enforcement notice
41.—(1) This paragraph and paragraphs 42 and 43 apply where— (a) a qualifying entity has been given a notice of contravention;
(b) OFCOM have allowed the qualifying entity an opportunity to make representations about the matters contained in the notice of contravention; and
(c) the period allowed for making representations has expired.
(2)OFCOM may give a notice to a qualifying entity where they are satisfied that it has, in one or more of the respects notified, been in contravention of a provision or direction specified in the notice of contravention.
(3)A final enforcement notice must include OFCOM’s determination and may include— (a) a direction requiring the qualifying entity to take such steps as may be specified in the
notice;
(b) details of any financial penalty which is imposed pursuant to paragraph 42; and (c) details of any directions made by OFCOM pursuant to paragraph 43.
(4)A final enforcement notice may be given in respect of more than one contravention.
Financial penalty
42.—(1) OFCOM may impose a financial penalty on a qualifying entity in respect of any contravention identified in a final enforcement notice.
(2)The amount of any penalty imposed under sub-paragraph (1) is to be such amount not exceeding £250,000 as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention or contraventions in respect of which it is imposed. (3)OFCOM must have regard to any representation made by the qualifying entity in deciding whether to impose a financial penalty under sub-paragraph (1).
(4)Where a final enforcement notice is given in respect of more than one contravention, a financial penalty may be imposed in respect of each contravention identified in the notice.
(5)Where a final enforcement notice is given in respect of a contravention which is continuing, no more than one penalty may be imposed in respect of the contravention identified in the notice.
(b) if not paid within the period specified by OFCOM is to be recoverable by them.
Compensation and costs
43.—(1) OFCOM may direct a qualifying entity to pay an amount of compensation, to reimburse costs, or to do both, to any person affected by the contravention and identified in a final enforcement notice.
(2)OFCOM must have regard to any representation made by the qualifying entity in deciding whether to issue a direction under sub-paragraph (1).
(3)Where a final enforcement notice is given in respect of more than one contravention, payment of compensation and costs may be directed in respect of each contravention identified in the notice.
(4)Any compensation and costs payable under this paragraph must be paid within such reasonable period as may be specified in the final enforcement notice.
PART 12
Dispute Resolution
44.—(1) This paragraph applies in relation to an owner–provider dispute(a).
(2)Any qualifying copyright owner or qualifying ISP which is a party to a dispute may refer it to OFCOM.
(3)OFCOM may decide it is appropriate for them to resolve the dispute where they are satisfied that—
(a) it is an owner–provider dispute;
(b) the submissions of the qualifying entity referring the dispute meet the requirements as to form and content which OFCOM may from time to time specify;
(c) the parties to the dispute have made reasonable attempts to resolve the dispute between themselves;
(d) there are no alternative means for resolving the dispute; and
(e) there is reason to believe that there may have been a contravention of the initial obligations or the provisions of this Code.
(4)OFCOM must inform each of the parties to the dispute as soon as reasonably practicable of their decision as to whether it is appropriate for them to resolve the dispute and the reasons for that decision.
(5)Where OFCOM have decided that it is appropriate for them to resolve the dispute they must send a notice to the parties to the dispute inviting them to provide representations on the matters in dispute within the period of 5 working days beginning with the day on which the notice was sent or such other period as may be specified therein.
(6)OFCOM must consider any representations made by the parties to the dispute and may issue a draft dispute determination setting out OFCOM’s provisional findings and recommended means of resolving the dispute.
(7)Where OFCOM have issued a draft dispute determination the parties may submit representations on the matters covered by the draft dispute determination within the period of 10 working days beginning with the day on which the draft dispute determination was sent or such other period as may be specified therein.
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(9)A final dispute determination may include—
(a) a direction requiring a party to the dispute to take such steps to comply with an initial obligation, a provision of this Code or a direction made under this Code as may be specified in the final dispute determination;
(b) a direction requiring a party to the dispute to pay compensation to the other party in respect of any losses incurred by that other party in consequence of a contravention of the initial obligations, a provision of this Code or a direction made under this Code;
(c) a direction requiring a party to the dispute to pay to the other party an amount in respect of costs incurred by that other party in consequence of the reference to the dispute to OFCOM.
(10)This Part does not prejudice the ability of OFCOM to take enforcement action under paragraphs 40 to 43 in respect of any of the matters raised in connection with an owner–provider dispute.
EXPLANATORY NOTE
(This note is not part of the Order)
The Digital Economy Act 2010 inserted sections 124A to 124N into the Communications Act 2003 (“the Act”) to regulate online copyright infringement. Under section 124D of the Act, OFCOM has a duty to make a code by order for the purposes of regulating the initial obligations set out in the copyright infringement provisions of the Act. This Order therefore contains an initial obligations code setting out the rights and obligations of copyright owners, internet service providers and subscribers under the copyright infringement provisions of the Act.
The code contained in the Schedule to this Order is the “Online Infringement of Copyright Initial Obligations Code”.
Article 1 of the Order provides that the Order shall come into effect on [ ].
Article 2 of the Order provides for the code contained in the Schedule to have effect for the purposes of section 124D(1) of the Act.
In the Schedule to the Order—
[ ]
[This Order was notified in draft to the European Commission in accordance with Directive 98/34/EC, as amended by Directive 98/48/EC.]
Annex 4
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The notification process
Notes:
(1) This decision tree represents a simplified version of the detection and notification process only. It sets out the actions an ISP must take on receipt of a valid CIR. For precise details please refer to the Initial Obligations Code.
(2) Subscribers may appeal each CIR, each notification, each appearance on a CIL and any act or omission under the Code. Appeals must be lodged within 20 working days of: a. the date of receipt of a notification.
b. the date on which the subscriber became aware of the issue of a copyright infringement report relating to an apparent infringement by the subscriber; or
c. the date on which the subscriber became aware of any other act or omission in relation to an initial obligation or a provision of the Code which is the subject of the appeal.
CO detects infringement CO issues CIR A 1st CIR against sub in past 12 months expiring on date of receipt?
ISP sends initial notification Already received infringement list or further infringement list notification? Already received 1 (& only 1) notification in 12 months expiring on date of receipt of CIR A? Already received 2 (& only 2) notifications in past year? CIR received >3 months after previous notification sent?
ISP sends further infringement notification. Subscriber remains eligible for inclusion on a CIL CIR received >1 month after previous notification sent? Evidence gathered >20 days after previous notification sent? ISP sends intermediate notification CIR received >1 month after previous notification sent? Evidence gathered >20 days after previous notification sent? ISP sends infringement list notification within 1 month of receiving CIR. Subscriber eligible for inclusion on CIL. CIR recorded against subscriber but no notification sent CIR recorded against subscriber but no notification sent Y Y Y Y N N N N N N Y Y Y Y N N Y (within 1 month of evidence being gathered) (within 1 month of receiving CIR) (within 1 month of receiving CIR) (within 1 month of receiving CIR) (within 1 month of receiving CIR)
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