Government Denies Wi-Fi Operators Copyright Exemption

Cafes, pubs, universities and libraries that offer wireless internet access will not be granted a special exemption from measures aimed at tackling copyright infringement, the Government has said.

The Government's controversial Digital Economy Bill makes an internet access subscriber liable for the copyright-infringing behaviour of others. Internet law expert Professor Lilian Edwards had previously warned that without an exemption the measure would have a damaging effect.

The Government has now published guidance to the Bill which clarifies that organisations providing access will be granted no such exemption.

The Bill says that action can be taken not just against the person accused of engaging in copyright infringement, but also against "a subscriber to an internet access service [who] has allowed another person to use the service, and that other person has infringed the owner’s copyright by means of the service".

Edwards, who is Professor of Internet Law at the University of Sheffield told podcast OUT-LAW Radio last November that this would have major implications for any organisation offering Wi-Fi access.

"A lot of people secure [their Wi-Fi networks] but a lot of people don't," Edwards said. "I think there is a strong likelihood that having unsecured Wi-Fi might well be seen as allowing other people to use their service which means that effectively you would become responsible for their alleged copyright infringement."

She said that if the new law meant that many organisations would stop offering that access it would be a "sad loss".

Advice published by the Government says that fixed-line internet access in libraries is unlikely to be used for copyright infringement because library-owned computers can be prevented from running the necessary software. It said that it had considered exempting libraries from liability when it came to Wi-Fi networks but had decided against the move.

"We have considered the extent to which an exemption might be provided in the legislation," said guidance published by the Department for Business, Innovation and Skills, which is responsible for the Digital Economy Bill. "We cannot give blanket exemptions for any such establishment."

"This would send entirely the wrong signal and could lead to 'fake' organisations being set up, claiming an exemption and becoming a hub for copyright infringement. Similarly existing establishments might simply ignore the issue of copyright infringement (or treat as 'too difficult') and allow users to infringe copyright with effective immunity," it said.

An organisation's legal obligations change depending on whether it is considered by the terms of the Bill to be an internet service provider (ISP) or a subscriber to an ISP.

The Government advice said that the situation in universities is more complex than that in libraries because universities will sometimes be deemed to be ISPs under the Bill and will sometimes only be subscribers to a service provided by academic network JANET.

"It is clear that JANET and some universities already take far stricter action on copyright infringement than is being proposed in the Bill. For others, a baseline set of obligations and actions might support them in tackling online infringement of copyright," said the guidance.

"The Government does not consider that it would be appropriate to create a simple exemption for universities, other [further and higher education] establishments – or indeed for libraries," it said. "We expect for those establishments where effective action is already being taken, that it makes sense for all parties to continue with existing arrangements. For others, the provision of generic advice should allow them to consider what steps they might take and for any appeals to be considered by the independent body on a case by case basis."

The lack of an exemption for bodies providing public Wi-Fi access may reduce the number of organisations making access available. Edwards told OUT-LAW Radio last year that the law's requirements could act in contravention of other Government policies.

"The answer to [the law's requirements] is maybe [the connection owner] has to secure his Wi-Fi. But if that's so you are making that the new law, and that points against other policy goals like digital inclusion. You will make life very difficult not just for individuals but for institutions that like to offer public Wi-Fi like hotels and cafes," she said. "That may all have to be locked down so that people will avoid copyright liability and that seems like a sad loss."

The Government's guidance said that businesses which provide Wi-Fi access will differ in their suitability for use by copyright infringers. Coffee shop access is less likely to be used, it said, than the high-speed access granted at hotels, holiday parks and conference centres. Any organisation likely to face the use of their network for infringement should be provided with advice "which is relevant and proportionate to the establishment", it said.

The guidance said that the Government would add a requirement in the Bill that the code which will govern the details of the Bill's operation will force ISPs to provide advice on the operation of networks and how to secure or restrict them to help reduce copyright infringement.

"Also there is scope for the code to reflect the position of libraries, universities or wi-fi providers," it said. "For example, there may be a case for such institutions to have differing sets of thresholds which trigger notification letters. This would be a matter for the code and we would urge the relevant representative bodies to consider now how bets to engage in the code development process."