The DEA was originally passed in 2010 but is not likely to be implemented until 2014, having been beset by delays and legal challenges. From its inception, the DEA was a step in the right direction on dealing with illicit peer-to-peer file sharing, and was warmly welcomed by many rights holders. Once implemented, the DEA will (amongst other things) require Internet Service Providers (ISPs) to send warning letters to alleged illegal distributors and keep lists of repeat infringers.
At the time that the DEA was drafted, mobile networks, such as 4G and public wi-fi, were not deemed sufficiently conducive for effective and wholesale copyright infringement. However, recent developments, such as the introduction of 4G networks and the growth of public wi-fi services, will open up new opportunities for copyright infringement beyond the current scope of the DEA.
Julian Heathcote Hobbins, General Council at FAST, said: “The DEA has the potential to be a valuable piece of legislation in the fight against illicit peer-to-peer copyright infringement and a significant development for rights holders as an educational programme. However, the DEA must remain timely. The issue is that by the time the DEA is finally implemented, technology could have moved on so far making the Act ineffective in helping to deal with those using 4G networks to share files. In its current form the DEA is not sufficiently flexible in scope to account for advances in technology.”
The Creative Coalition Campaign (CCC) has expressed similar views in its consultation response, in which it suggests that online infringement is “already a problem on mobile networks”, likely to be exacerbated by the introduction of faster internet services such as 4G. Ofcom should, they argue, insert a mechanism into the code to allow the scope of the DEA to be flexed up easily as required.
Jonathan Cornthwaite, Partner at London city law firm Wedlake Bell LLP and member of FAST’s Legal Advisory Group (FLAG), commented: “The irony here is that the Government dropped a key element of Clause 18 during wash-up which could have effectively future-proofed the Act, leaving enough room in its scope to account for methods of copyright infringement not yet considered. As we are now witnessing, technology does not stand still and gaps are appearing in the DEA as the use of mobile devices accelerates. Unless this situation can be remedied, it may be of less assistance, leaving rights holders with a watered down remedy.”