The government is planning to award itself powers to change copyright law almost at will, in expectation that new anti-peer-to-peer laws will drive infringement to other services such as Rapidshare and newsgroups.
The measure, which is the most severe contained in the Digital Economy Bill published today, will be interpreted as a major victory for rights holder organisations. It will grant the Business Secretary Lord Mandelson and his successors undprecedented control over civil enforcement of copyright.
The government said it will make the change "so that it, in future, new communications technologies allow creative content to be unlawfully copied in new ways, remedies can be developed and implemented more quickly and flexibly than might otherwise be possible, so that emerging threats can be addressed in a targeted way".
"We recognise there are other kinds of illegal downloading going on and will will need to tackle those as well," said Stephen Timms, the minister responsible for the Bill.
It lays the ground for successors to the enforcement regime proposed to reduce illegal peer-to-peer, also contained in the Bill.
Timms said the powers could not be used to create or modify any criminal offences. Any changes a business secretary might seek to the Copyright, Designs and Patents Act using them would be subject to public consultation and debate in both Houses of Parliament, he added.
However, the powers will be exercised by statutory instrument rather than by primary legislation, meaning MPs and Lords could not block the government.
As previously announced, ministers will also use statutory instruments to impose "technical measures" - such as bandwidth restrictions, download limits and account suspensions - on ISP customers who persistently infringe copyright via peer-to-peer, which is currently the most common method.
Timms said account suspension would be a last resort, adding: "It may well prove to be the case that if we do use technical measures it may not be that one."
Earlier suggestions by Mandelson that the regime could be in force by summer 2012 were abandoned, with government spokespeople unable to commit to a timetable today.
The regime will work as follows; once the Digital Economy Bill is on the statute books - Timms noted it has cross-party support - ISPs will be obliged by law to notify their customers in writing when it is alleged they have been infringing copyright via peer-to-peer. The letter will be targeted based on lists of IP addresses harvested from BitTorrent swarms by rights holder organisations such as the BPI.
ISPs will also be required to keep records of how many letters are sent to each customer and share that information with the rights holders. If the BPI wants to identify a particular persistent filesharer, it would then apply for a court order and potentially sue in civil court.
Meanwhile Ofcom will be obliged to measure what effect the letters are having on the overall level of filesharing. It could do this via a Deep Packet Inspection-based traffic sampling system - as we revealed yesterday it has held talks with at least one vendor - or, an official suggested, judging it from the data provided by rights holders.
If after an unspecified period, determined by the business secretary, the overall level of infringement is not reduced by 70 per cent, a statutory instrument will be used to impose technical measures. Officials said the details of the technical measures will be tailored to each ISP, depending on the technology available and the nature of peer-to-peer infringement on their network.
Customers who want to challenge an allegation of illegal filesharing will be able to appeal to an Ofcom body in the first instance. If they are unsatisfied they will be able to take their case to a first tier tribunal.
Ofcom will also be responsible for working out the total cost of the process on a per-letter basis. ISPs will then charge rights holders a capped sum for each letter they send, which will effectively divide the costs between the two industries. The details of the split are under discussion, officials said.
ISPs have lobbied hard against the regime, but today Timms claimed the government now enjoys their support. "The importance of what we are doing is pretty widely recognised," he said, adding that BT and Virgin Media backed the regime. ®