Digital Economy Act 2010: fighting a losing battle? Why the ‘three strikes’ law is not the answer to copyright law's latest challenge

Abstract

This paper argues that the Digital Economy Act (DEA) 2010, already much delayed in its implementation, is fundamentally flawed in three respects. First, there are internal inconsistencies in the complex provisions to be enacted under secondary legislation. In particular, the problem of relying on Internet Protocol (IP) addresses to identify alleged infringers has proved problematic. Secondly, the proposed measures are disproportionate in terms of the offence and severity of the punishment involving a warning-system leading to possible disconnection from the Internet for copyright infringement. Thirdly, the Act is unlikely to succeed in its central purpose to control unauthorised digital copying because of its technological specificity in a fast moving environment, and a lack of consumer acceptance. Finally, by comparing the treatment of these issues under legislation in other countries, in particular New Zealand, alternative copyright enforcement models are explored.