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Digital Economy Bill [HL]

Volume 717: debated on Monday 1 March 2010

Report (1st Day) (Continued)

Amendment 17

Moved by

17: Before Clause 4, insert the following new Clause—

“Objective of sections 4 to 16

The objective of the measures in sections 4 to 16 is to move to a lawful means of access to copyright material for consumers and businesses and to reduce unlawful file-sharing and other forms of copyright infringement.”

My Lords, I had intended to make quite a substantive intervention on this matter, but in view of the time and the distinction of the audience—though not the volume of the audience—I shall try to keep it reasonably short. However, it goes to the heart of the Bill and my concerns about the Bill. I appreciate, as others have also said earlier in the debate, that the Government have come forward with a number of amendments that reflect the fact that they listened to what was said in Committee about the inadequacies of some of the procedure. They have particularly improved the early parts—stage 1 of the procedure—for which I am very grateful that. I declare my interest, if I have not already done so, as chair of Consumer Focus.

From the view of the subscribers and those who use digital access to copyrighted material of various forms, this appears to be a seriously draconian Bill. It seems to demonstrate a spirit that is very different from the general tone of Digital Britain and the Government’s general approach to developing the digital economy. In those, the Government are in favour of accessibility, inclusion, innovation and competition. In the Bill—in Clauses 4 to 16 and perhaps in Clause 17 as well—we go straight into what is effectively a sanctions regime which is protectionist, which will lead to exclusion if it is successful, and which is likely to alienate a significant number of consumers, particularly young consumers, of digital services for music and for other forms of digitalised copyrighted material such as sport, drama and so on.

This is bad business for the rights holders and bad politics for the Government. It is not sensible to alienate a whole generation—unless you are giving an alternative. The Government have an alternative, and occasionally they talk about it. This apparently innocuous motherhood-and-apple-pie clause which I am proposing in Amendment 17 says that the Bill’s objective is not to knock on the head as many unlawful file-sharers as you can find but to shift the burden of file-sharing transactions from the unlawful market in copyright material to lawful means of access. There are lawful means of access. About half of those who admit to unlawful file-sharing also have some access to lawful forms of file-sharing. Quite well known, generalised new business models are coming on line: we have mentioned Spotify here before, but there are others. There are 20-odd quite general forms of relatively cheap, relatively accessible and relatively flexible ways of getting at most copyrighted material. It ought to be the Government’s objective in their policy to move the bulk of this market to those lawful forms of access. Instead, propaganda on the Bill from the Government, and particularly from the music industry, is about clamping down, restricting and ultimately having sanctions that are disproportionate to the offence.

It would help to enhance the acceptability of this general approach among consumers and consumer organisations if the Government recognised that their objective is to move people to lawful forms of access. We would then be dealing with what should be a reducing problem. At the end of all that, there will of course still be some who engage in unlawful file-sharing. However, their number will probably be reduced provided that the lawful service is reasonably cheap and flexible. They will probably largely be people who are making significant money out of illegal file-sharing, or people who are manic, mega-serial infringers. We will still need measures to deal with them.

I would have preferred a strategy from the Government that recognises that it will take time to move the bulk of these transactions into a lawful market. This strategy would recognise that serious sanctions are still needed but that they do not necessarily have to involve going through the kind of procedures that we were talking about under the present system—the threats from lawyers and court action. It would, however, deal with the residual problem.

Perhaps I may underline the problem that one faces with consumers at the moment. Consumer Focus has recently conducted a small survey of people’s understanding of these matters. Three-quarters of consumers know that they do not understand what is lawful and what is unlawful. We took three transactions which are actually unlawful, one of which is copying a CD or DVD which you have bought to another format so that you have a copy in more than one location. Three-quarters of people believe that that is legal. One-quarter recognises that it might be unlawful, and 86 per cent do not believe that it should be unlawful. You get similar results on similar format shifting.

With this level of ignorance of the law, and with consumers adapting to the new technology rather faster than institutions and businesses, it is not surprising that the threat of intervention—a temporary closing-down, throttling, suspension or reduction of internet connections in order to enforce that—meets with significant hostility. We should go back to a strategy that is aimed at moving everybody onto a lawful system, and which emphasises that, rather than the burden of this Bill, in which we now have 17 or 18 clauses on sanctions. It includes nothing about a lawful system, nothing about support for the creative industries and nothing about making access easier and more flexible.

The Government ought to think about re-presenting the Bill and their strategy in that regard. A small step in that direction at this stage in the Bill would be to put an objectives clause at the beginning of the Bill, before going into the sanctions sections. There may be better ways of drafting this clause, and I would be delighted if the Government came up with better ways of drafting it. However, it would be a small but significant step in making their whole approach rather more palatable than it is to me at the moment.

I therefore hope that the Government, if not immediately grabbing this opportunity tonight, will think that there is some merit in spelling it out here, and that there is some merit in re-presenting what they are doing. In the long run, it would be of benefit to the rights holders as well as to consumers and the Government. That is the intention of this clause, and it is pretty central to the strategy for the Bill. I beg to move.

My Lords, perhaps I may add to what the noble Lord, Lord Whitty, has just said, because I basically agree with just about everything he said. I have been enormously influenced during the Bill’s passage by the noble Lord, Lord Lucas, and by several things that the noble Lord, Lord Whitty, has said. I want to make a point that is, certainly to me, terribly important. I have learnt one thing during the Bill’s passage—the absolute indispensability of pre-legislative scrutiny. The Bill has suffered grievously from not having been scrutinised by a group of the entire Chamber.

I have been privileged to chair two pre-legislative scrutiny committees. What actually happens is that a relatively small group of people from all sides of the House sits down, goes through the evidence and interrogates it. It finds the areas on which it agrees and then offers solutions to the Government that we hope not only are palatable but move the process on. One of the more dispiriting features of the seven days that we spent in Committee was how much of the time was spent arguing over and discussing things that could so easily have been dealt with by a small group of peers from all parts of the House. If there is one great lesson to take away, it is that the House should not accept Bills like this without provision for pre-legislative scrutiny.

In that sense, I absolutely agree with the noble Lord, Lord Whitty. What will end up leaving this Chamber—probably lacking Clause 17, which in many respects is a pity, although I understand the objections to it—and going to the Commons is a Bill that none of us is particularly proud of. It will be a spatchcock that does part of the work it was intended to do but not all of it. I am absolutely convinced that, within the next two or three years, there will be another Bill before this House which will be created to deal with the deficiencies of the present Bill.

My Lords, having had the privilege of sitting on these pre-legislative committees to which the noble Lord, Lord Puttnam, referred, I agree absolutely with him.

I also agree with the substance of the amendment, as noble Lords would expect, as I have added my name to it. The noble Lord, Lord Whitty, is right that it is a great shame that the Government have not laid out a more positive objective before moving on to more punitive aspects. Without having that objective clearly in the Bill, I am worried that some of the resources that should be going into educating the public will be lacking. The Minister will be well aware that the Government’s rollout of their programme that now appears on the edge of our hotmail and other places —the zip it, block it, flag it—is exactly the sort of educational programme that should have preceded measures like this by a good year or 18 months. Only in that way can we start to get the message through to the generation that the noble Lord, Lord Whitty, talked about. The Government have got it the wrong way round. They should have run the educational campaign, measured whether it had had sufficient impact, except against serial offenders who do it for commercial gain, and then introduced the sort of measures aimed exactly at them rather than the occasional downloader or the institutions that we shall no doubt be discussing later.

It is a pity that the Government did not commence their educational campaign well before bringing in these measures. I can understand why they have introduced this Bill now; they want to hurry it through before the election, which is understandable, but the necessity for the educational campaign has been known for a long time. It is a pity that they have not embarked on it. What resources will the Government be allocating now for an educational campaign based on what the public need to know about what is and what is not legal? I am glad that the noble Lord, Lord Whitty, included the results of his survey because it highlights the need for the Government to have a quick and comprehensive campaign on the issue.

My Lords, I confess that I am one of these people who on occasion does not understand whether something that I want to do on the computer is legal or not. For example, I get e-mails from a company called 3B Software which offers for a small annual sum of about £30 unlimited access to television stations round the world and to as many films as I want to watch. If I am paying, is it legal? I do not know. I do not know whether if I took the offer from that company it would be legal. I would be paying for it but I do not know whether the company has the copyright on the films or television programmes that it is offering.

The noble Lord’s amendment brings out certain things about the legislation. I was going to refer to the present but I am not sure whether the clauses are about the present; they are more about the past, and they certainly do not take account of the future. I have Virgin Media at my home in Hamilton in Scotland and I can get 50 megabytes broadband. By the end of this year I will be offered 100 megabytes broadband, which will allow me to stream—not download—HD quality television or film direct on to the computer. Noble Lords may ask who wants to watch a film on computer, but if I can wireless it to my television set I will be streaming. Again, I am not sure whether watching a streamed film is legal as opposed to downloading a film which is illegal. I hope that somebody can enlighten me on that.

Equally, we are all going to increasingly download and save on to Cloud technology. We are not going to have it on our own hard disks; we are going to have it somewhere up in the air. I am not sure whether the technology we are talking about is taken account of in these clauses.

I will finish with a point about music. Some pop people have woken up to the fact that they cannot make money in that way, because of illegal downloading and the rest of it; they sell their music direct to customers on the internet. You download the piece of music and you pay them for it. You do not go through a music publisher or whatever. Pop stars now recognise that they no longer make their money from selling records; they make their money from the records publicising their concert tours and by appearing live in concert. That is the way in which it has gone. My noble friend is quite right. We have to look forward to see how on earth we can ensure—because I think quite rightly that those who produce artistic goods should be paid for them—that we can do that without penalising those who are not sure whether they are dealing with legal or illegal matters.

My Lords, very quickly, I, too, support this. The noble Lord, Lord Puttnam, made a very valid point. Things of this complexity should not just be suddenly presented here in Committee. Sometimes, even though we may not really disagree, we will appear to be confrontational because of positions we take on particular amendments on the Floor of the House. I certainly do not disagree with him in many respects but I may about some of the detail and the unintended consequences of some of the things that we are putting in to try to achieve a desirable outcome.

The noble Baroness, Lady Miller, hit the nail on the head—we should have done the educational campaign first. This amendment is about sending out a message, which is a good point. However, if you look at it, Clauses 4 to 9 are about sending out a message—sending out the letters. As the noble Baroness, Lady Miller of Chilthorne Domer, said, this is trying to do the education, but we are a bit late. Clauses 10 to 14 are the punitive bits—the cracking of the whip. Then we have the bit about how we divvy up the charges, and some administrative stuff. We are told by the Minister that all those clauses are about sending a message. That message is not a very kind message in the way that it has been phrased in this Bill, which we expect to become an Act.

It would be much nicer to put this up front, so that people realise that there is a desirable purpose in this and that it is not a hostile Act the entire way through. I refer to the discussion of the previous three amendments, which were all about using an existing system of remedy which exists for the rights holders, and which is not to be removed from them. This is a very effective way of dealing with serious offenders. Take them to court—why not? We do not want to remove that from them. We understand from both Front Benches that we need to leave this remedy in the Bill.

If we are going to leave this remedy for a crackdown on serious offenders through the civil courts, you start to wonder, “Why do we need this new method?”. Maybe we should use the existing system, as promoted by ACS:Law and others, and carry it through to prosecution. This sounds a bit illogical, I am afraid, and it may sound slightly muddled, but it is not. What message are we are trying to get out? At the moment, it is very muddled. On the one hand, we are leaving in place all the existing remedies for serious offenders, which could be used right now, and now we are putting a whole lot of things in—to frighten minor offenders, I presume—because they are presumably not necessary for major offenders. I therefore think that this clause is essential to explain why we are doing it, and what we are really trying to do for the future. Without it, this Bill, to be honest, will be ridiculed.

My Lords, while I can agree with some of the sentiments expressed in the suggested new clause, I do not think that in practice it adds anything to the Bill. I listened carefully to my noble friend Lord Whitty. I can understand the use of a bit of hyperbole to make a case, but to say that we are moving straight into a protectionist regime and sanctions is a misconception and an unreasonable description of what we have spent many days discussing. We were adopting an educationist and gradualist approach. We are not doing anything threatening. We would send out a very modest advisory letter, which was exaggerated. As regards saying that we are moving into protectionist technical measures, we are not doing that. It would take a year before we would even consider them, which would be after an Ofcom report. As on many occasions, I plead for a more measured analysis of what we are trying to do.

To address the noble Baroness, those letters are part of the educational campaign. I am afraid that I cannot follow the logic or rationale of the noble Earl, Lord Erroll, who wants to take everyone to court now. I thought that we were moving away from that. He said that we do not need this and that we could just use the measures. Millions of people are engaging in peer-to-peer file sharing, as we have discussed on numerous occasions. We know that in many cases these people do it because they think that that is what we do on the internet. We know that there is a need for an educational process for those people, which is why we have adopted this gradualist approach.

On several occasions, we have made it clear that the reason for this part of the Bill is to reduce significantly the level of online infringement of copyright, not just because widespread unlawful activity should not be condoned but, I should like to stress, because we see it as a vital ingredient in doing what my noble friend Lord Whitty wants; that is, to develop a flourishing and sustainable digital economy where people gain the fruits of their labours. My noble friend Lord Maxton also seemed to think that.

As to whether streaming is legal, it depends on what it is used for. There can be legal and illegal examples of streaming. Where a streaming service is licensed by the rights owner, it is legal. Most iPlayer viewing is streaming. But unlicensed streaming will not be legal. I cannot pronounce on the services for which my noble friend is paying.

Alongside enforcement, which properly remains at the heart of the responsibility of the owner of the copyright, has to be education, with which I agree, and the development of attractive legal alternatives. There are quite a few legal alternatives out there. It is not as though there are not any. We constantly talk about an environment in which there are no legal alternatives. It is just that the illegal alternative has become an attractive first option and changing that will take a bit of time and education. That is exactly why we will not move into sanctions early on.

However, while the Government’s purpose is very clear, there is no need to include a new clause as proposed by the amendment. The clauses speak for themselves in terms of their effect, which includes elements within the progress reports produced by Ofcom that will track the efforts of copyright owners to ensure that they play their part in this. We are not expecting copyright owners to go down just one route, but also to develop the alternative. The proposed new clause would have no effect and we believe it to be unnecessary.

As to the contribution from my noble friend Lord Puttnam, with whom I usually find myself in agreement, in an ideal world perhaps we would subject this Bill to pre-legislative scrutiny. But I can recall some of my noble friends and Ministers telling me that, even where we have had pre-legislative scrutiny, it has not stopped hundreds of amendments—as though there is a process of collective amnesia. I would not decry it because I can see the benefit of what my noble friend has suggested. Where perhaps I disagree slightly is the description that this process of scrutiny is a spatchcock. Of course, it will change. We have submitted dozens of our own amendments. Why? Because we are reflecting the genuine concerns of the House. However, that does not mean that the essential structure of the Bill and what it is trying to achieve will not emerge at the end of this process. With or without Clause 17, it still has a very important purpose. I see I have spurred my noble friend—

I gather I am allowed to stand by way of explanation. My point is that as a House—and I certainly speak for myself—we have been subjected to an extraordinary degree of lobbying. The problem is that we have had no opportunity to look at that lobbying in a sensible and interrogative way and decide which of it is valid and reasonable and which is pure hyperbole. That is what has been missing. Many of us in this House have come in having just had our ears bashed—either by the record industry or some other aspect of special pleading. The House has not been protected with a proper interrogative process by which we, as Members of the House, can come to this Chamber fully cognisant of the things we have looked at and believe we can advance on. The lobbying process that has gone into this Bill has been quite destructive and has done none of us very much help at all.

There are aspects of my noble friend’s contribution that I probably could not help but agree with, but it is a fact of life: when we have legislation like this inevitably there will be lobbying.

To conclude, we do not believe that this amendment will add to the Bill. The clauses speak for themselves, and we think we have got the gradual approach right. We are concerned to ensure that the legal alternatives develop, and we believe that the gradual approach we advocate will encourage the development of what my noble friend Lord Whitty seeks to achieve. In the light of the clear statement of our intentions, I hope that my noble friend will feel able to withdraw his amendment.

My Lords, I am very appreciative of those who spoke in support of this amendment or something like it. The Government have to take on board the range of views which were expressed here.

My noble friend Lord Puttnam is very wise to say that this should have been subject to effective pre-legislative scrutiny. My noble friend the Minister is also very wise not to give my noble friend Lord Maxton any detailed legal advice—he might find himself in serious trouble if he did. That illustrates the problem: people do not understand it. As my noble friend Lord Maxton told us, he has been an aficionado of this area for at least two decades, possibly more, and he does not know whether he is operating legally or not.

Exactly. My noble friend the Minister says that education is the first part of this Bill. I have said the Government have made improvements to the first part of the Bill—roughly Clauses 4 to 7—but it is still the first stage of an enforcement process. The first letter a subscriber gets is, “It appears that an infringement has taken place”. That is not education. It may turn out that he will learn something from it, but it is not education. It is a threat. The problem with this approach is that it is a serious threat. Part of the music industry and other industries have behaved in a gung-ho way: they have the Government and indeed the Opposition on side to wipe out this problem by getting the ISPs to do it for them.

It would have been far better for all concerned, including consumers, if we had had a proper education process up front, as the noble Baroness, Lady Miller, has said. If we had explained the situation and given support and marketing to the lawful process, we might have persuaded some of the lawful processes to market themselves rather more effectively. I do not suggest that we go down the road that President Sarkozy now appears to be going down. Recognising that his approach, which is similar to this one, ain't going to work, he has now decided to subsidise the purchase of hardware in terms of CDs and DVDs at some expense to the French taxpayer. I am not suggesting we do the same here. But at least he has recognised that simply intervening on the sanctions side will not work.

This is a graduated approach, but we should first inform and educate. Next you should start warning people and then take action with the residual problem. The main thing is to develop lawful, accessible, cheap, understandable, well-known forms of lawful alternatives. They are there. Everybody is right to say that they are already there, but they need developing and they need to be made more attractive and more automatic. They are getting better. My noble friend said that people who have recourse to unlawful file sharing take the easiest approach, but at least in some areas some of these lawful processes are now becoming the easiest way to do it. That is exactly what we want to develop and what the Government should have been doing.

If the Government are not prepared to accept the amendment, I shall return to it or it should be considered in another place. It was a whole new presentation of the Government’s approach. At the moment, the Government may think that they are being very mild, but out there is a big stick on behalf of vested interests. That will not endear them to the population nor will it endear the population to the creative industries that we are hoping to stimulate as a result of this.

I will withdraw the amendment tonight because I do not think anybody wants a vote, but I have received sufficient support to return to it at a later stage or in another place. I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

Clause 4 : Obligation to notify subscribers of reported infringements

Amendment 18

Moved by

18: Clause 4, page 6, leave out lines 7 to 11 and insert—

“( ) infringement of the owner’s copyright has taken place through a subscriber’s IP address”

My Lords, this is an even simpler approach to make the Government appear a little less harsh. As we move on to the first stage notification, the present text in Clause 4 states:

“This section applies if it appears to a copyright owner that …a subscriber to an internet access service has infringed the owner’s copyright by means of the service”.

We had lengthy debates in Committee about the fact that the subscriber may well not be the perpetrator of the infringement and how you identify where the real issue lies. A more neutral approach to that in the text of the Bill which says that a subscriber has infringed would be to use my terminology and say that it appears that an,

“infringement of the owner’s copyright has taken place through a subscriber’s IP address”.

That is actually a more accurate description of how it would be brought to the attention of the copyright holder and the ISP. It would be a rather softer approach by the Government and might help to turn those first notification letters into a slightly more educational and less threatening tool. I hope that the Government will accept that this is a sensible modification of the approach. It does nothing else to change the Government's intention. I hope that at least consideration will be given to this alternative wording. I beg to move.

My Lords, there are a number of instances where the subscriber may well not be the infringer. For example, in the hotel industry, the hotel is a subscriber to an internet service. What happens if a number of different guests use the service to infringe copyright? The hotel will presumably be subject to the proceedings established by the initial obligations code. Is it expected to communicate with former guests about these obligations? Is the hotel expected to pass on a copyright infringement order or notice to a guest? Some clarification from the noble Lord would be very helpful in reassuring this industry.

I have certainly had some letters about this because there are some concerns that this may turn hotels and other people into communication service providers, because they will have to start to monitor who is logged on and when and they will have to have software that does that. Does this make them into CSPs along with all the obligations and everything else that that entails? Some clarification as to what this might imply for libraries, hotels, and other public places would be very useful.

My Lords, this amendment is an interesting one since it recognises that from the perspective of the copyright owner collecting the evidence to form the copyright infringement report, there is no way of knowing whether it is the subscriber apparently infringing copyright, somebody within their household or organisation, or somebody parked outside in the street piggybacking on the connection. All that the copyright owner will see is an apparent infringement taking place—I stress an apparent infringement taking place—at a particular date and time, via a specific IP address. They will not know the circumstances because they will not know who it is. In many ways the reason for this legislation is to allow the copyright holder to take action that connects information about the infringement to the subscriber responsible for the connection while maintaining anonymity.

However, while agreeing that this is what happens in practice, the text that the amendment proposes to delete is useful. It makes clear that it may not be the subscriber that is personally responsible for the infringement and as such also makes it plain that, in those circumstances, the provisions continue to apply—although of course we have listened to what noble Lords said in Committee and have made it much clearer how subscribers can deal with that. In fact, we have sent a lot of information out to that effect.

My noble friend might suggest that the amendment encompasses the existing text and says it in fewer words—a clear profit. Unfortunately, while I admire the succinctness of the amendment, it uses the phrase,

“through the subscriber's IP address",

which is not an accurate description, as we have said on a number of occasions. The IP address is dynamic, generally speaking, changing each time a subscriber logs on, while the amendment implies a fixed point of contact. Since the amendment does not seek to change radically what is covered by the existing text but introduces potential difficulties, I hope that my noble friend will agree to withdraw the amendment.

In relation to the point made by the noble Lord, Lord Howard, the position of hotels is the same as that with cafés, universities and libraries. Provided the hotel made suitable arrangements to ensure whatever security it needed to adopt or whatever conditions of service it put down to its guests—the levels of access—that would be a reasonable defence. It was on this that we gave quite a lot of information and I would refer the noble Lord back to that. We were trying to respond to the genuine concerns that were expressed about a whole range of different scenarios; universities, libraries, cyber-cafes, hotels et cetera. We made it clear that that there are reasonable actions that could be taken; and if those actions were taken, that in itself would be a reasonable defence. I refer the noble Lord back to the information that we have already circulated.

In the light of what I have just said, given the technical problems with the amendment, I hope that my noble friend will feel able to withdraw the amendment.

My Lords, I understand what my noble friend is saying. However, the subscriber’s address identifies the potential infringement, so I am not entirely sure that his objection to my wording is correct. No doubt his technical advisers can advise him on a more apposite wording to replace the subscriber’s address. However, that is not the point of the amendment. The point is that it does not imply—the wording of the Bill does imply this—the clear guilt of the subscriber, either by perpetrating the infringement themselves or by giving permission—actively or passively—to somebody else to do it. That is the point of the measure. The reference to a subscriber’s address may not be correct, but there must be a reference which covers that point.

I really must correct my noble friend. We are not implying guilt at all. We talk about an apparent infringement. We cannot indicate guilt because we do not know whether the subscriber was the person who perpetrated the act in question. I have made that clear and I wish that my noble friend would not imply that certain things are in the Bill when that is manifestly not the case. We take great care to ensure that the first letter—the first approach—talks about an apparent infringement. That is not by any means an indication of guilt.

Perhaps my noble friend’s life experience is different from mine, but if a policeman knocks on my door and says, “It looks as if you’ve got some dodgy gear in your shed”, I consider that is an implication of guilt, even though I may have a perfectly adequate explanation for it in the long run. It is a matter of where you start from. That is what I object to. The Government should think again and not have a knee-jerk reaction to something that is intended to be helpful. I am almost being provoked to call a vote, but I will not. I will withdraw the amendment, but I hope that my noble friend will give further consideration to making a change in this area.

Amendment 18 withdrawn.

Amendment 19

Moved by

19: Clause 4, page 6, line 22, after “gathered;” insert—

“( ) is sent to the internet service provider within the period of 1 month beginning with the day on which the evidence was gathered;”

My Lords, I intend to speak to the 10 amendments tabled by the Government that deal with the information provided to subscribers in the notifications they receive, and the time limits associated with the notification process. I will also respond to the amendments proposed by the noble Lord, Lord Lucas, that cover the same ground.

There was some interesting debate in Committee around the extent to which we should leave the detail of the process to the code, which would have the benefit of direct stakeholder input and consultation, and how much should be included in the Bill to ensure a minimum level of protection for subscribers. While the Government continue to see merit in leaving much detail to the code, we listened to the arguments made and the amendments laid by the Government are the result.

The amendments we have put forward in the area of notifications and time limits do, I suggest, strike the right balance. They ensure that subscribers who receive a notification have the information that they need in order to appeal if necessary, that the first-level notification does not include information about potential technical measures, underlining the advisory nature of the letter—I hope that noble Lords found the illustrative letters helpful in that regard—and let the subscriber know what the position is generally as regards issues such as potential legal action by copyright owners.

The noble Lord, Lord Lucas, will also have noted that we have adopted his proposal of including provision for the name of the copyright owner making the report to be included in the notification, and I hope that as a result he will agree to withdraw his own amendment in this area. However, we do not agree with his Amendment 28, which proposes that marketing information may also be sent with notifications, not because we do not agree with it but because in our view there is nothing to stop such information being sent as it is—and in practice we would be rather surprised if it was not. I hope that the noble Lord, Lord Lucas, can agree to withdraw that amendment also. Certainly, we wholeheartedly agree with the underlying point that copyright owners must step up and play their part by ensuring that there is plenty of attractive legitimate content available.

These amendments also set limits on how long the process can take, with a maximum of a month allowed between the date evidence of the apparent infringement is gathered and the copyright infringement report being sent to the internet service provider, and the same period being set as the limit between a copyright infringement report being received and a notification being sent to a subscriber. That may be regarded by some in industry as challenging, but there is a balance to be struck here and we think this is only fair to subscribers—of course, we hope and expect the actual period to be considerably shorter than this.

I hope noble Lords agree that this moves this part of the Bill in the right direction and recognise that we took account of a number of serious points that were made in the previous debate. I beg to move.

My Lords, of course, I am grateful for Amendment 22 being superseded. I am also grateful for the Minister’s words on Amendment 28, which very much answer the case. I shall pick up his words at a later moment because it does seem to me very important that the industry offers ISPs something that they can sell to their customers. They must have a product to offer in substitute for what their customers are doing at the moment. This is an enormous marketing opportunity.

At the moment, the copyright owners are being extremely difficult, as I said at the last stage, about a test of this in one particular area, to see whether an ISP can successfully offer rights packages to its users—which has been successful in Denmark, for goodness sake, so why are they dragging their feet here? However, at least the Government say that they are expecting the industry to do this. I very much hope the industry is listening and that, when the time comes to send out these letters, there will not be an ISP in the land which is unable to offer a legitimate package to its subscribers, presumably for a cut of the take in doing so.

My Lords, it would be churlish not to welcome amendments, which I think are considerable improvements to the Bill, particularly in terms of the additions to the copyright infringement report requirements and the notification contents. I think the Minister has made significant progress and improvements to the Bill as a result of these amendments.

My Lords, I think the Minister in introducing his amendments actually proved the point made by the noble Lord, Lord Whitty, on the last amendment, because the amendments that the Government are now introducing talk of the gathering of evidence and so on, which are all things that happen before you get found guilty of something. The very language that the Minister uses is wrong, and I am sorry that the noble Lord, Lord Whitty, did not choose to call a vote; but I can understand why he did not.

I rise to make a point that BT has made to us in its briefing. Quite clearly, it is still deeply unhappy, despite all of the government amendments. I wonder whether the Minister is aware of the depth of its unhappiness. I must say that I have never found it in the past to be an organisation that has been anything other than reasonable and logical. BT says that,

“it is not clear which of the definitions of ‘subscriber’ or ‘internet service provider’ would apply to account holders such as businesses, organisations and householders whose internet connections are or can be used to provide internet access for many people”.

It feels that the new amendments that the Government are introducing at this stage are not much more than cosmetic. I wonder what consultations the Government have had with BT and whether it came up with some more substantial suggestions that the Government have chosen to ignore.

Not to my knowledge. I think it is unfortunate that there seems to be a slight dichotomy of opinion there between the Front Bench and the Back Bench, with one welcoming the amendments. I say to the noble Baroness that the gathering of evidence does not mean that somebody is guilty, so I do not accept that point. I cannot tell noble Lords about any suggestions from BT.

We submitted the amendments in good faith in the light of the serious points that had been made in previous debates and, from other points that have been made around the House, it is obvious that they serve a purpose. Therefore, I make no apologies for the amendments. I think that they are a constructive response to a constructive debate, and it is unfortunate that they do not seem to please the noble Baroness.

Amendment 19 agreed.

Amendment 20

Moved by

20: Clause 4, page 6, line 27, at end insert—

“( ) Any notification under subsection (4) must be sent to the subscriber within the period of 1 month beginning with the day on which the provider receives the report.”

Amendment 20 agreed.

Moved by

21: Clause 4, page 6, line 30, leave out “made by a copyright owner;” and insert—

“( ) the name of the copyright owner who made the report;”

Amendment 21 agreed.

Amendment 22 not moved.

Amendments 23 to 25

Moved by

23: Clause 4, page 6, line 32, at end insert “that shows the subscriber’s IP address and the time at which the evidence was gathered;

( ) information about subscriber appeals and the grounds on which they may be made;”

24: Clause 4, page 6, line 34, after “advice” insert “, or information enabling the subscriber to obtain advice,”

25: Clause 4, page 6, line 35, leave out from “advice” to “; and” in line 36 and insert “, or information enabling the subscriber to obtain advice, about steps that a subscriber can take to protect an internet access service from unauthorised use”

Amendments 23 to 25 agreed.

Amendment 26

Moved by

26: Clause 4, page 6, line 36, after “telegraphy;” insert—

“( ) any allegation of financial gain to the subscriber as a result of the alleged infringement;”

My Lords, I shall speak also to Amendment 57. We are still talking about the initial letter of notification and the evidence that is required to issue such a notification. I know that the Minister was getting a bit irritated with the noble Baroness, Lady Miller, but such a notice suggests that we are moving into sanctions, and for sanctions you need to differentiate motivation in the long run.

This is the beginning of a process. It may be a light-touch beginning but, in the end, if compliance is not achieved, we are into sanctions in stage 2. Therefore, if evidence is being gathered at this early stage, it is useful to identify the motivation of the unlawful downloader or file-sharer. I simply suggest in the amendment that, if there is an allegation that the individual is making money out of this breach of copyright, that should be known at the earliest possible stage. That will then have consequences regarding the nature of any sanction if there is continuous non-compliance at a later stage. That seems to me very sensible and it is a way of sorting those who are currently engaged in unlawful file-sharing from the eventual hard core whom this regime will have to tackle.

The amendment may not be in quite the form that the Minister would like but it would provide a useful differentiation and would be a useful addition to the background evidence for the first intervention. It would imply that not everyone was as guilty as everyone else in this respect. In other words, if you were making money from unlawful file-sharing, ultimately you would expect a heavier sanction if you did not comply than if you were a casual user. It is sensible to establish that at the beginning and I hope that the Minister will at least have a look at the possibility of including such an amendment. I beg to move.

My Lords, it is worth recalling that the purpose of the Bill is within these clauses. Online infringement of copyright through the unlawful use of peer-to-peer file-sharing networks is a civil matter where there is widespread sharing of copyrighted material without any remuneration involved either to those sharing the files or, alas, to the owners and creators of the copyrighted material. As I have said before, moving towards any sanctions is quite a long process. They are taken only against serial infringers and therefore someone would have to have quite a track record before any sanctions were taken. It must be remembered that we were talking about not even introducing technical measures until at least a year after we had seen whether the gradualist, educated process had had any effect. I am going to keep returning to this so that we do not create the impression that sanctions are going be taken against people in a very short time—that is not the case.

On the substance of what my noble friend is trying to do—and I understand the direction of travel—it is extremely difficult for copyright owners to address such widespread activity, which is why we have introduced the provisions in this part of the Bill. In many ways, it is easier and simpler when there is money involved since, if somebody is making money from copyright infringement, it becomes a criminal offence and a different set of procedures comes into play. There is also a clear target and, as in the simple instruction to detectives, the same thing would apply to enforcement authorities—“follow the money”. That is not what we are talking about here. Peer-to-peer file-sharing is not necessarily about people making money out of it; it just happens to be that what they are doing is illegal. So it would be pointless and even misleading to add this to the list of notifications information. I hope, in the light of that explanation, that my noble friend will feel able to withdraw the amendment.

I accept some of that and perhaps the moment of notification is a bit early to start distinguishing, but somewhere in this process we do have to distinguish why people are engaged in multiple file-sharing. The consequences, for somebody who is doing it for money will, as the Minister rightly says, be potentially different. This does not say that you have to distinguish, for everybody, beyond doubt that money is involved, but if there is, as part of the knowledge of the copyright holder, an assertion that money is involved, we might as well get it on the record as early in the process as possible. That is all that Amendment 26 is doing.

When we come on to the next stages, it seems rather more necessary that we know before we engage in the technical measures sanctions, or indeed, put it into the criminal system, as my noble friend the Minister implied. While it may not be absolutely necessary to know at this point, it will be necessary and helpful to know at some point whether they are involved, not simply in depriving the copyright owner of money, but actually making money for themselves. That distinction will have to feed through to the sanctions regime, but for the moment, I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

Amendment 27

Moved by

27: Clause 4, page 6, line 38, at end insert—

“( ) For the purposes of subsection (5)(f) the provider must take into account the suitability of different protection for subscribers in different circumstances.”

Amendment 27 agreed.

Amendment 28 not moved.

Amendment 29

Moved by

29: Clause 4, page 6, line 40, leave out from second “particular” to “of” in line 7 on page 7 and insert “—

(a) a statement that information about the apparent infringement may be kept by the internet service provider;(b) a statement that the copyright owner may require the provider to disclose which copyright infringement reports made by the owner to the provider relate to the subscriber; (c) a statement that, following such a disclosure, the copyright owner may apply to a court to learn the subscriber’s identity and may bring proceedings against the subscriber for copyright infringement;(d) where the requirement for the provider to send the notification arises partly because of a report that has already been the subject of a notification under subsection (4), a statement that the number”

Amendment 29 agreed.

Clause 5 : Obligation to provide infringement lists to copyright owners

Amendment 30

Moved by

30: Clause 5, page 7, leave out lines 29 to 33 and insert “and an internet service provider if copyright infringement reports made by the owner to the provider in relation to the subscriber have reached the threshold set in the initial obligations code.”

I intend to speak to the six amendments tabled by my noble friend Lord Mandelson which deal with the thresholds set by the code. I shall also speak to Amendments 36, 37 and 40, tabled by the noble Lords, Lord Razzall, Lord Clement-Jones and Lord Whitty, and the noble Baroness, Lady Miller, which also address the thresholds that apply in Clause 6.

Perhaps the most important of the amendments laid by the Government in this group has the effect of removing the text that caused some concern to noble Lords during both Second Reading and Committee. The concern was about whether it was fair or reasonable to require internet service providers to process copyright infringement reports that accrued to them during the qualifying period—in other words, before they were formally subject to the obligations. Internet service providers put forward the scenario of being obliged to spend significant sums just in case, at some time, the obligations did apply to them. This would in many cases be likely to be wasted money. Clearly that is not in anyone’s interests, and the amendments allow for the obligations to apply from when the qualifying threshold is reached, or from a later date.

The other amendments in this group are largely intended to clarify the position regarding thresholds, including how the thresholds for going on the copyright infringement list might be constructed—for example, allowing for time as well as simply the numbers of copyright infringement reports to be taken into account when looking at thresholds for adding subscribers to a copyright infringement list. These amendments are again in response to the concerns expressed during our deliberations in Committee, and I hope that noble Lords will agree that they address one unintended consequence and provide greater clarity elsewhere without hindering the important flexibility that the code provides in setting the thresholds themselves.

Amendment 36 was tabled by the noble Lords, Lord Razzall and Lord Clement-Jones. I understand their intention of ensuring that the level of infringement detected on an internet service provider’s network must be serious before it becomes subject to the obligations in the Bill. It remains our view that the code is the right place for the threshold to be established. I believe that we can rely on the parties with the most interest in getting this right and on Ofcom, as an experienced regulator, to agree a suitable threshold.

That is also our view of the amendment tabled by the noble Baroness, Lady Miller, and my noble friend Lord Whitty. I do not think that we would be at all wise to include specific figures for any threshold in the Bill; that is for the code. In passing, I would say that if a threshold of 50 is included, there might be few internet service providers left outside the scope. Whether that is desirable and effective I am content to leave to the code.

Finally, the noble Lords, Lord Razzall and Lord Clement-Jones, suggested that once the threshold has been reached a reasonable time should be allowed for internet service providers to prepare. I agree that this needs to be part of the practical arrangements. Your Lordships will therefore not be completely surprised when I suggest that this sort of practical detail is best left to the code. The outline that we made available in Committee included that eventuality. In trying to put more flesh on the bones of what the code may look like, we think it important that, while not taking away flexibility, we provide a period of consultation for stakeholders to decide the make-up the code.

I am sure that noble Lords noted that Amendment 39 allows that internet service providers comply with the obligations once they have passed the threshold or at a later time. This was included specifically to cater for the likely but not certain need of many internet service providers to make the necessary preparations. We took into account many of the comments and concerns expressed in previous debates and they have been reflected in the government amendments. In the light of those comments, I hope that noble Lords will not press their amendments. In the mean time, I beg to move.

My Lords, I assume that the Minister will respond formally later. However, he has saved me having to make a long speech, or indeed much of a speech at all. I thank him for responding to Amendments 36 and 40 essentially in the same terms. He said that rather keep it in the Bill, it should be in the code. One needs to consider the impact of that. It will not be quite as powerful, particularly in terms of Amendment 40, which gives internet service providers a reasonable time, because there are two ways in which these codes can be made. They are either made by consent or imposed by Ofcom. Perhaps the Minister is saying that if Amendment 40 is not included in the code by agreement between the parties, it will be imposed by Ofcom. That is the only way in which something that the Minister assures us will be in the code, but which is not specified in the Bill, is in the code. In a sense, one is taking it somewhat on trust. However, at this stage of the proceedings, and given the Minister’s assurances, I shall take the matter away and consider his response to Amendments 36 and 40.

My Lords, I speak to Amendment 40. It is not my amendment, but I think that it should be included in the Bill to some degree. I welcome the Minister’s amendments, which are a very good idea, but the extra moderation shown in Amendment 40 is also worthy of consideration. When one thinks of how much difficulty the Government sometimes have in implementing new computer and software systems, one realises that a reasonable amount of time should certainly be allowed. Choosing it arbitrarily could be dangerous, and we should probably have that in the Bill.

My Lords, I will not pursue my amendment for the reasons that the Minister referred to—namely the unintended consequences for smaller ISPs. I was certainly not intending to drive them out of business. One needs to devise a trigger, and it would be better if the trigger were overt and in the Bill. On reflection, however, I do not think that my amendment achieves that. Therefore, before my noble friend replies, I should say that I will not press it.

My Lords, I tried to cover the amendments in my opening remarks. I therefore commend the amendment to the House.

Amendment 30 agreed.

Amendment 31 not moved.

Amendment 32

Moved by

32: After Clause 5, insert the following new Clause—

“Obligations of OFCOM in respect of subscribers etc.

After section 124BA of the Communications Act 2003 insert—

“124BB Obligations of OFCOM in respect of subscribers etc.

(1) Before any notifications are sent to subscribers under the terms of section 124A, and thereafter as required, OFCOM must publish its views on—

(a) the precautions that should be taken by a subscriber who uses a computer or operates a network to which others (actually or potentially) have access in order to reasonably ensure that their computers and networks are not used to infringe copyright;(b) the ways in which a subscriber who receives a notification under section 124A(4) may seek to demonstrate that—(i) he had at the relevant time put in place precautions equivalent to those published under paragraph (a), and(ii) no computer used by him had contained—(a) the copyright material complained of, or(b) a program capable of making that material available over the internet.(2) When OFCOM publishes views under subsection (1)(a) or (b) they must include the names of (as the case may be) software or websites that an ordinary person might reasonably be expected to make use of to achieve the objectives referred to in those subsections.””

All I need the Government to say in response to this amendment is, “Yes, customers will be given precise instructions on what to do and will not be left to guesswork, to divination or to going on to Google to find out what might possibly work”.

There are two aspects to this amendment. The first deals with the precautions that a customer will be asked to take. If the Minister has looked at the latest Which? Computing, he will see that domestic routers are reviewed—and, indeed, that the model that I have is found to be fundamentally insecure, as is the model that I had previously. I bought mine at PC World, as it was one of the nicest looking ones around and did everything that was required of it. The only one that came out as totally secure was the BT router, which you cannot buy unless you have a BT account—which I do not, at least not in the relevant place.

Being told that these particular brands of router will do what you want to do, and that this is what you do, is better than just being told, “Go and buy a router that complies”, without leaving it absolutely clear which those are. Most people who are subject to these things will not feel technically confident and will need precise instructions. That especially applies to people who want to know how to defend themselves against an accusation. I have lived the past 40 years with computers of one form or another, and I would not know how to defend myself against an accusation that I had file-shared. How would I get proof? To give somebody a kit that they can use is going to be essential. I beg to move.

My Lords, I strongly support this amendment; to some extent it features in the next group of amendments which are tabled in my name. It seems to me that every subscriber needs to know what is expected of them to avoid the effects of infringement, and it behoves the code to lay down in clear terms what is expected of a subscriber at their address. I hope that the Government take the issue seriously and will take the noble Lord’s amendment on board.

We on these Benches support my noble friend’s amendment. I shall resist asking him what a good-looking router looks like.

I also support the amendment. It is important that people can know where they stand. That is the challenge. The internet is very new and many people are very new to it and are in the unknown. The noble Lord, Lord Maxton, explained why he did not know whether he was downloading the right stuff. On top of that, how does he know that he has got the right kit? This is a very sensible amendment.

My Lords, the intention behind the proposed new clause is clear and easy to sympathise with: to give subscribers more information and hence protection. However, it attempts to do so by placing new obligations on Ofcom in areas in which Ofcom does not have the necessary expertise or experience. In doing so, it would actually reduce the level of subscriber protection. I will say why.

We agree that advice should be made available to subscribers on how to secure their networks, but the best people to give it are the ISPs, which can advise on what works best on their network, using their hardware, and on the type of service that they provide. I stress that we are introducing an amendment to the Bill that requires that they do so under the code. Any advice from Ofcom would be second best. However, it will be up to the appeals body, the First-tier Tribunal, or indeed a court, to decide what precautions or evidence may or may not be appropriate. In a lot of the information that we have sent out, we have said what we think would be a reasonable defence for people adopting security measures. I will have to come back to the noble Lord, Lord Lucas, on the question of security on routers and so on; I do not feel capable of giving an answer here.

The danger in Ofcom setting out its views on what measures are “reasonable” or what evidence might be produced is that these could become the de facto minimum for subscribers, regardless of circumstance or effectiveness. The level of technical expertise that is required—for example, to demonstrate that at no time did the subscriber’s computer have the necessary software to allow infringement—is fairly high and expensive, although it is easy to envisage circumstances in which this would be totally unnecessary. In such a fast-changing area, any centrally provided advice that tried to cover all eventualities could very quickly date. Conversely, a court or tribunal might simply take the view that the measures were unnecessary or inadequate and not take them into account.

We agree with the intent behind these amendments, but, as I have explained, we feel strongly that they are not necessary and that, for once, Ofcom is not best placed to provide the advice.

There are a number of reliable and credible sources of advice on protecting networks on computers outside the ISPs, such as, which provides independent advice on how to protect networks and is supported by government, Ofcom, the police and industry. Organisations such as Which? also review widely available security products. I will still take away the point made by the noble Lord, Lord Lucas, about routers, which apparently are not secure. He asked whether software programs could in any way be downloaded to make them secure. I do not know.

We understand exactly and sympathise with where the noble Lord, Lord Lucas, is coming from, but we do not believe that this is the right way to proceed. We believe that the ISPs and other sources will be better placed to give this kind of advice, and I hope that in the light of my comments the noble Lord will feel able to withdraw the amendment.

Does this mean that the Government will put on to a properly funded footing? It is being run on a bit of a shoestring at the moment.

My Lords, I think we will have to see what happens. I really do think that if consumers end up without very clear advice on what to do, we will end up with a lot of unhappiness and a lot of mess, so I urge the Government to ensure that, whichever way they do this, the consumer who finds that something is or might be going on that they want to prevent can prevent it in a way that leaves them certain that they have done the right thing and that they will no longer be at risk. I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

Clause 6 : Approval of code about the initial obligations

Amendment 33

Moved by

33: Clause 6, page 8, line 3, leave out “may” and insert “must”

My Lords, I will speak also to the other amendments in this group. Amendment 33 is pretty straightforward—it just requires the code to cover the subsequent stipulations, rather than have a form of words based on “may”. Amendment 35 partly overlaps with some of the territory that the recent amendment of the noble Lord, Lord Lucas, covered. However, it also covers the wider issues that were raised during the Committee stage.

It seems that the code needs to specify a number of things in relation to those bodies and organisations that feel they have particular problems with the operation of the regime that this Bill requires. In particular, we have had very substantial representations from libraries and educational establishments. The Minister helpfully provided a factsheet on how this would impact on libraries in particular. The factsheet is helpful, but it indicates that there is a very wide range of issues, and clarity of advice is not very easily available, depending on the nature of the systems that are operating in the libraries and the protocols under which they operate, and the other public institutions with which they liaise and share information. It is not therefore that straightforward, even for libraries.

I suggest that those non-profit-making bodies and educational establishments ought not to be subject to the same sanctions, and therefore the same warning procedure, that is implied for other people. That does not mean that they are not covered, and that copyright is not protected in relation to such institutions, but it does mean that separate protocols will have to be developed, in order that those bodies that effectively exist in order to provide for multiple users, in educational establishments and elsewhere, at no profit to themselves, can have some separate arrangement. That will probably be negotiated with the rights holders and will protect their position, while at the same time giving some return to the rights holders. They are not in the same position as either individuals or commercial businesses who are engaged in unlawful file-sharing. They are in a position where they are trying to do what I was emphasising in an earlier stage in this debate; that is, to spread the availability of information and of creative works on the internet to a wider range of people. That is the function of educational establishments and libraries—that is their job—and we therefore need to make special provision for them.

At this stage in the evening, I will not say much about those other organisations that are commercial, but which also exist primarily to give access to other people: cybercafés and hotels—which the noble Lord, Lord Howard, referred to—where again, some form of fair use provision needs to be built in. Again, they are not in the same category as individual users or individual businesses.

The final phrase of Amendment 35 relates exactly to the territory that the noble Lord, Lord Lucas, was referring to—namely that all users, all subscribers, need to have greater clarity about the precautions they are expected to take.

Amendment 76, which is also in this group, follows that through, so that where, in the later stages, under Clause 10 and onwards, a relevant subscriber has taken precautions, that shall be deemed “reasonable steps” under the formulation, and will provide the subscriber with a prima facie defence against sanctions at that later stage. I am not trying to do it in quite the same way as the noble Lord, Lord Lucas, and it may be that technically his way is better. However, the Government have already rejected that, so I am coming back to that fourth paragraph in Amendment 35, followed through in Amendment 76, to ensure that the code and the regulations under that code and the procedure will allow those who have taken reasonable precautions to escape the sanctions at the end of the day. That seems to me only sensible and equitable, and would of course apply in a court of law. Since at the moment this procedure is not going through a court of law—which I regret, but nevertheless it is not—then surely the same terms should apply.

This is a hotchpotch of amendments, and we have covered a number of different subjects all together, but I should like to hear the Government’s position on making special provision for libraries and education establishments; on commercial operations which exist to share; and, if not tonight then at a later stage, on what precautions are “reasonable steps”. I beg to move.

My Lords, the concerns expressed in the amendment tabled by myself and my noble friend Lord Razzall are very similar to those in the amendment of the noble Lord, Lord Whitty, except they are perhaps more defined in terms of libraries or educational or cultural establishments.

We had a good debate in Committee, but there was great sense of disappointment, I think, that libraries and universities were classified for the purposes of the code simply as subscribers. Such classification will make them migrate away from what might be thought as being their ordinary course of duty as a cultural or educational establishment towards becoming ISPs themselves. Ironically, they may have rather fewer duties as an ISP than as a subscriber. That would be a regrettable step, because one is forcing them into a situation which would not otherwise occur if there were satisfactory exemptions for them.

However, I accept that the Minister has within the constraints of the definitions that he has provided tried to be helpful. A paragraph in the note that he has sent noble Lords states:

“There is the potential for the code to offer some flexibility and reflect the particular positions of libraries and the like. Ofcom will consult on the code in due course”.

That libraries with fixed terminals are rather different from universities with wi-fi was explained in some detail in the factsheet that the Government have put forward. Nevertheless, the defences need to be set out very clearly in the codes, and we are not there yet. We have therefore brought back Amendment 34 to see whether the Government can make a slightly better fist of being clear about the way in which the code will work and the defences that are available.

My Lords, I thank the Minister for the communication that he sent us about universities. Universities are relatively easy organisations to address, because they have a student body which can sign up to something. Similarly, in libraries, as you take out your library user card, you can be asked to sign up. However, we have not yet got to the bottom of what will happen to municipal places—the towns, for example—that choose to offer wi-fi. I am sad that the Government have not chosen to introduce a clause stating what category educational establishments or commercial establishments such as internet cafés, or indeed municipal facilities and wi-fi towns such as Swindon, would fall into. The vision set out by the Government in Digital Britain was of a place where local government provided wi-fi; it was creating opportunities for the citizen.

Not having a more enabling clause in this Bill that recognises how to get round some of the difficulties without making life difficult for those organisations and local governments who are being innovative seems to be a big loss. The Minister, I am sure, will be aware of the town in the USA—I believe in Ohio—which was offering wi-fi. It had a great difficulty because it was said that someone who had accessed the internet through the wi-fi had infringed copyright and the whole wi-fi network was threatened with closure. I do not know what happened in that case, but it would be a great shame if just at the point where we are getting more widespread opportunity to access wi-fi through municipal provision, it was caught by this Bill.

Establishments such as libraries and universities would benefit from a special clause, but I would be very grateful if the Minister could make a particular comment on municipal wi-fi.

My Lords, as I said before, I have a vision of the future where we can roam around the place, connecting freely wherever you are and working from wherever you need to work. If for some reason—such as transport difficulties, heavy snow or a terrorist threat—you cannot get into work, you can work from some other access point that you happen to get to. You may get halfway there and then log in. That flexible, free and mobile future is, I think, where the world is going. I think it would be very sad if Britain, because of one particular challenge and problem which we need to solve, constrains itself in such a way that we lose that flexibility and end up with a whole lot of tied points, huge complexity and a lot of regulation preventing people doing anything. I envisage a nice, free world, not a world where we are heavily constrained, so therefore I very much support Amendment 35 and hope the Government will look at it very closely.

My Lords, I will speak to Amendments 33, 34, 35 and 76 together. As noble Lords will recall, the issue of libraries, universities and other establishments was the subject of much debate in Committee. We recognised the concerns raised and I wrote to the noble Lords who participated in last week’s debate.

I therefore entirely appreciate the intention behind these amendments. No one wants to see libraries or universities the subject of court action or technical measures if—I stress this—they are ever introduced. There is no question of them being some sort of quick sanction which cuts off those services. No one wants to see legitimate businesses suffer as a consequence of the actions of their customers but, equally, it cannot be right that they are totally excluded from the provisions of the Bill. My noble friend Lord Puttnam, with his background in universities, recognised that essential point eloquently during our debate in Committee. It is better that the code recognises different circumstances; that is what the Government’s amendments provide. Such an exclusion would, I believe, be counterproductive. It is important to remember that libraries and universities can and do ensure that their systems are used for the purposes for which they were already designed. After all, it does not help a university to have a lot of unlawful file-sharing going on when it needs the bandwidth for legitimate file-sharing of research data. They sit on infringement pretty hard when they detect it, and install systems to deter illegitimate use of what is, after all, a finite resource.

Libraries also take proportionate and reasonable measures on both fixed and wireless connections. All library services should have a conditions of use policy to which users have to agree before getting access to the network. For example, no unlawful activity, including copyright infringement, is permitted. The policy usually stipulates that legal liability for unlawful activities sits with the individual, not the library. There are measures that can be placed on wireless networks to either restrict access to sites or restrict use of certain technologies or protocols—for example, routing all traffic through a proxy server that did not support the use of particular technologies.

The Government recognised in Committee that more clarification on these issues was needed. We set out in the amendment that we discussed earlier today that more information should be made available to all types of subscribers on how to safeguard their connections. We proposed a new clause on subscriber appeals, which sets out that if the subscriber was not responsible for the infringement and—I stress—had taken reasonable steps to prevent others from infringing, the appeals body should rule in favour of the subscriber.

The amendment tabled by the noble Lord, Lord Whitty, and the noble Baroness, Lady Miller, would go further by requiring that steps that the subscriber could rely on taking should be set out in the initial obligations code. This is just not practicable. The code would be a relatively static document made by statutory instrument. The steps that might be appropriate to protect an internet connection could well change over time as new techniques are developed and may be different for different types of subscriber or different types of network.

We absolutely agree that subscribers should have some guidance on what steps can be taken, which is the reason for Amendments 25 and 27 in the name of my noble friend Lord Mandelson, which we have already discussed. These will require ISPs to provide such information as part of a notification and to take into account the suitability of different protection for subscribers in different circumstances. We do not think that it is possible to make following these steps a sufficient defence precisely because different steps may be appropriate for different subscribers. However, I would certainly expect the appeals body to regard evidence that the subscriber had followed steps recommended by their ISP as very strong evidence of having taken reasonable steps.

Finally, Amendment 33 would make the inclusion in the code of a provision for dealing with exceptional cases mandatory rather than something that, under the Bill, may be included. I do not think that making such a change is necessary. Of course it is important that the code should be flexible enough to deal with particular cases that do not necessarily conform to the usual pattern. That is why subsection (3) is there. It expressly recognises the need, and the actions that will be required of internet service suppliers and copyright owners, to ensure that any such conditions for dealing with cases of that sort are met. However, I see no reason for requiring such a provision before it is evident that there are such cases. Insisting on such a provision in these circumstances would be a complete waste of time. I suggest that the potential issue of dealing with particular cases effectively needs to be provided for; the current text does that. Making it a requirement for the code may be a wasted effort. In the light of that, I hope that the noble Lord can see his way to withdrawing the amendment.

I stress that it is our intention that the code should require ISPs to provide generic advice and information on how to tackle infringement as well as on how to protect a wireless connection/network and that such advice is appropriate for the type of establishment in question. We will add a requirement under Clause 8 that this is a provision that the code must include. I hope that that gives some reassurance.

In response to the noble Baroness, Lady Miller, we gave an example of a case study on urban wi-fi—the Swindon example. I can tell the noble Earl, Lord Erroll, that it is not our intention to stifle initiatives, but we believe that appropriate measures can be taken in all these circumstances. It is quite complicated but, given the time, I do not want to read out the Swindon case study, as it would not be appropriate. However, we believe that a type of free or coffee-shop access of a basic bandwidth service that offered users access to e-mail and web browsing would be unlikely to be the type of free broadband service that would be sufficient to support any file-sharing or that could be used for significant copyright infringement. The Swindon example is a two-tier service. One part of it is a restricted bandwidth, so it is unlikely that it could be used to engage in peer-to-peer activity. There is another paid-for subscription service where that might be possible, but I am sure that there will be conditions of use.

I commend the factsheet. I would not say that it answers every question but it goes a long way towards addressing these issues. We have tried to make sure that there will be some requirements—things that the code must include. We believe that, in a situation where the technology changes frequently, we can meet the genuine concerns expressed. We have tried to strike a balance so that organisations such as universities, libraries and hotels have the ability to offer a service but are not exempt from taking the necessary measures and will not fall foul unreasonably, provided that they show that they have taken the necessary precautions. I hope that, in the light of the published information and my explanation, the noble Lord will feel able to withdraw the amendment.

My Lords, I am reassured on several points by my noble friend’s reply, particularly in relation to how precautions will be separately set out for different circumstances, and I would hope that that was clear in the coda. I accept that obviously you cannot cover every contingency. It is however important that the main classes of user understand what is required of them, and how the process will apply to them. This will be different, depending on the technology within those sub-classes. I was intending with Amendment 35 to go a little bit further than that; namely that the particular circumstances of libraries, and probably the particular circumstances of some hotels and cafes and so on, somehow need to be recognised as well.

Giving multiple access is part of their service. This goes to a rather more fundamental question of whether we should be legislating for fair use, but it seems to me that there could be particular provisions—deals done—with the ISP, or direct with the rights-holders, which recognise the particular circumstances of those who are providing multiple-use access. I will not pursue that any further tonight, but once this comes to be implemented, we will very rapidly see—as those industries themselves have warned us—that there will be impracticalities in their area if they are treated in the same way as any other subscriber. We have had approaches not only from libraries and colleges, but also from hotels and others who will need to be reassured on this point.

The Minister will be gratified to hear that I will not go any further tonight. I beg leave to withdraw the amendment, and I thank the Minister for spelling that out in such detail.

Amendment 33 withdrawn.

Amendments 34 to 37 not moved.

Amendment 38

Moved by

38: Clause 6, page 8, line 25, leave out “out”

Amendment 38 agreed.

I remind the Committee that if Amendment 39 is agreed, I cannot call Amendment 40 because of pre-emption.

Amendment 39

Moved by

39: Clause 6, page 8, leave out lines 27 and 28 and insert—

“( ) if the threshold is reached, rights or obligations apply with effect from the date when it is reached or from a later time”

Amendment 39 agreed.

Amendment 40 not moved.

Amendment 41

Moved by

41: Clause 6, page 8, line 29, after “unless” insert—

“(a) ”

My Lords, the amendments in this group relate to a concern that many noble Lords raised in Committee: that these provisions might lead to information that a subscriber may reasonably expect to be kept private being disseminated among many different bodies. The Minister has tried to reassure the House that ISPs and copyright owners will be expected to meet a high standard when setting up the databases and transferring information between them at the appropriate stage. As with so much in this Bill, however, it will not be possible to tell the value of these reassurances until the system has been established. It will provide considerable reassurances for subscribers, and indeed ISPs, which are likely to bear the brunt of consumer anger if these standards are not maintained, if the code were to be approved by the appropriate person—the Information Commissioner. I beg to move.

My Lords, these amendments are, on the face of it, reasonable and it is easy to understand and appreciate the intent behind them. However, they are not necessary and would slow the adoption and approval of the code. A quick summary of the process that the code must go though will help to explain why. Ofcom will have either to develop or approve a code to underpin the initial obligations. It knows that any code must fully comply with existing legislation, including data protection and privacy, before it submits it to the Secretary of State. But before the code gets the Ofcom stamp of approval, it would have been developed with stakeholders and put out to consultation. The Information Commissioner’s Office responded to our earlier consultations on online copyright infringement and I would expect it to be similarly involved in the code consultation, if not the code development process itself.

The code then requires the approval of the Secretary of State before ultimately coming before Parliament for approval. As part of that process we must be sure that it complies with all legislation and not just that concerning data protection or privacy. Therefore, the code will have been developed with stakeholders, have gone through a consultation, had Ofcom approval, and had the Secretary of State’s approval and that of Cabinet colleagues before it reaches Parliament. It is hard to believe that in all that time the important issues of data protection and privacy would not have been fully investigated and checked.

Finally, I have little doubt that before approving the code the Information Commissioner would want to consider or consult on it, thus elongating the approvals process further. Formally requiring the Information Commissioner to approve the code is not necessary and could add significantly to the time for the approval process. In the light of that explanation on the fullness of the consultation process, I hope that the noble Lord will feel able to withdraw the amendment.

I thank the Minister for his helpful remarks. If the Information Commissioner is going to look at the code en route, I do not suppose that it will take any longer for it to be looked at formally, but there you are. I beg leave to withdraw the amendment.

Amendment 41 withdrawn.

Amendments 42 to 44 not moved.

Clause 7 : Initial obligations code by OFCOM in the absence of an approved code

Amendment 45

Moved by

45: Clause 7, page 9, line 12, leave out “may but need not” and insert “must”

My Lords, in Committee, the Government moved amendments to make the code that needs to be drawn up by Ofcom, if the stakeholders do not agree among themselves, no longer to have a time limit. Subsection (2)(b) of new Section 124D of the Communications Act 2003, “Initial obligations code by OFCOM in the absence of an approved code”, refers to,

“such longer period as the Secretary of State may specify by notice to OFCOM”.

The Minister was fairly cogent in terms of describing why a longer period was needed in terms of the standstill required by the technical standards directive and the standard Ofcom 12-week consultation period. It would appear that the whole process would take six months and, therefore, it was probably unreasonable to specify that the whole code could be produced within six months.

However, what appears to be a good argument for having a longer deadline fails to justify what the Government’s amendment in Committee did, which was potentially to remove the deadline altogether. That does not appear to be justified. There is considerable concern among some stakeholders involved that this process could be extended unreasonably and could prevent Ofcom getting code discussions moving on the ground that basically there is no longer a time limit. It seems sensible to reintroduce some form of deadline, which this amendment attempts to do. I beg to move.

My Lords, these two amendments would remove any ability of the Secretary of State to allow Ofcom more time to produce a code. I am not in favour of unnecessary delays or time wasting; I share the concern of the noble Lord, Lord Clement-Jones. I am all in favour of giving Ofcom challenging targets, and our provision is just that—challenging but achievable. However, putting this in legislation means that if Ofcom fails to do so within this period it could be found to be in breach of a statutory duty. If that is due to its failings so be it, but what if this is through no fault of Ofcom’s and something which it has no control over? That is another matter.

As noble Lords may be aware, under European legislation—the technical standards directive—all member states must notify the Commission when they propose to introduce legislation that would affect a business wishing to operate in the UK. This notification process requires that the member state submit the proposal in a near final form, and that the Commission and other member states have a three-month period to consider and comment if they wish. If issues are raised, then the Commission would look into the proposal in more detail. I hate to say the next bit, but this process can take up to 12 months. During that period the notifying member state cannot proceed with the regulation.

We are certain that the code will need to be notified and we have built this into the eight-month period allowed to Ofcom. We are also fairly confident that after the three-month standstill we would be able to proceed. However, here’s the rub: we cannot be sure that it would not be delayed further. It is only in this type of situation that we envisage that the Secretary of State would allow Ofcom an extension. I want to reassure the noble Lord, Lord Clement-Jones, that we share exactly his concern. We have tried to give him an assurance that the only circumstances where the Secretary of State would allow Ofcom an extension would be circumscribed. In light of the explanation I have just given, I hope that the noble Lord will feel able to withdraw his amendment.

My Lords, I thank the Minister for that reassurance. It was certainly extremely helpful to have that on the record, in terms of talking about “the only circumstances”, and reassuring to know that he shares our concerns about this potential situation where there is no deadline.

It is too late at this stage to go much further into this. We would have preferred some sort of backstop date rather than just a possibility of it flowing on. However, as the Minister has assured us that there are only certain, very limited circumstances in which that subsection would be invoked, I will bank that assurance for the present. I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

Amendment 46 not moved.

Amendment 47

Moved by

47: Clause 7, page 9, leave out lines 26 to 40 and insert—

“(a) confer jurisdiction with respect to any matter (other than jurisdiction to determine appeals by subscribers) on OFCOM themselves;(b) provide for OFCOM, in exercising such jurisdiction, to make awards of compensation, to direct the reimbursement of costs, or to do both;(c) provide for OFCOM to enforce, or to participate in the enforcement of, any awards or directions made under the code; (d) make other provision for the enforcement of such awards and directions;(e) establish a body corporate, with the capacity to make its own rules and establish its own procedures, for the purpose of determining subscriber appeals;(f) provide for a person with the function of determining subscriber appeals to enforce, or to participate in the enforcement of any awards or directions made by the person;(fa) make other provision for the enforcement of such awards and directions; and”

My Lords, I intend to speak to the seven amendments tabled by the Government that deal with the removal of the option in each code that an independent body or person might administer and enforce it, thereby ensuring that this is a role performed by Ofcom itself. This was something the Committee wished.

The ability of the code to establish an independent person or body with the powers and duty to administer and enforce the code was considered at some length during Committee stage. The Government’s view was that this was a pragmatic approach, giving the regulator the option to delegate the duties and work of ensuring the code worked properly to an independent body. However, a number of noble Lords took a different view, and regarded the possibility of such an independent body being set up as undesirable and lacking in proper accountability.

Having listened carefully to what was said, the Government have decided that the benefits of pragmatism are in this case outweighed by the assurance and benefits of ensuring that this code, and the technical obligations code, should one be needed, which are so essential to the effective functioning of these provisions, is administered and enforced by Ofcom as the regulator. This does not affect the requirement for an independent appeals body to be set up. I hope that noble Lords regard this as the right thing to do in the light of the debate we had on this matter. On that basis I beg to move.

Amendment 47 agreed.

Amendment 48 not moved.

Clause 8 : Contents of initial obligations code

Amendments 49 and 50

Moved by

49: Clause 8, page 10, line 18, leave out “subsection (3)” and insert “subsections (3) and (3A)”

50: Clause 8, page 10, line 18, at end insert—

“(ba) that it sets the threshold applying for the purposes of determining who is a relevant subscriber within the meaning of section 124B(3) (see subsections (3B) and (3C));”

Amendments 49 and 50 agreed.

Amendment 51

Moved by

51: Clause 8, page 10, line 25, leave out “enforcement and related matters” and insert “administration and enforcement”

My Lords, I rise to move a supergroup of some 19 amendments. These amendments cover the very important area of subscriber appeals, and I am delighted to be able to introduce these proposed changes as a result of the debate that we had in Committee and the many concerns that your Lordships raised about the need for greater clarity and detail in the Bill. The amendments are somewhat complex, and I hope that your Lordships will forgive me if I seek to explain them at perhaps slightly more length than I would want on a single group.

The changes that we are making in this group do essentially three things. First, we have streamlined the process to ensure that any subscriber appeal should follow a single route to the appeals body and then on to a First-tier Tribunal should technical obligations have been introduced. That means that the dispute resolution mechanism for what is currently called a copyright infringement dispute will be restricted to disputes between copyright owners and ISPs about compliance with the code. We have also renamed these disputes “owner-provider” disputes, which adds clarity and should remove the concerns that many noble Lords expressed about the idea of a “copyright infringement” dispute resolution mechanism.

Secondly, the amendments provide explicitly that provisions on subscriber appeals should be set out, and complied with, in the code. Finally, and most importantly, the amendments introduce a new clause on subscriber appeals which brings all the provisions on appeals together and introduces a number of new provisions to give more clarity about the rights of subscribers. Specifically, the new clause gives subscribers an explicit right to appeal and requires the establishment of an independent appeals body to be paid for by copyright owners, ISPs and subscribers.

In response to concerns that your Lordships raised, the new clause provides for the grounds for appeal to include that there was no infringement of copyright, that the report does not relate to the subscriber’s IP address and that the copyright owner or ISP contravened a requirement of the code. We listened to what noble Lords said about the burden of proof and this clause makes it clear that in all cases the infringement and the fact that it relates to the subscriber’s IP address must be proved and that if that cannot be done to the appeal body’s satisfaction then the appeal should succeed. Again, we listened to what noble Lords said about defences and this clause establishes that it will be a sufficient defence for the subscriber to show that they did not carry out the infringement and that they took reasonable steps to prevent other persons from infringing copyright using their internet account.

In response to a recommendation from the Joint Committee on Human Rights, the clause includes provision for the appeals body to award compensation to a subscriber and to require the subscriber’s costs to be paid should an appeal be successful. I believe that this also meets the intention behind Amendment 53 in the names of the noble Lords, Lord Razzall and Lord Clement-Jones. The clause gives the appeals body the power to confirm or reject the application of a technical measure, or to substitute another measure that the ISP has the power to take, and allows it to show leniency where an appeal is not upheld but there are special circumstances.

The clause includes the provision that was already in the Bill for an appeal against a decision of the appeals body to the First-tier Tribunal when technical obligations are in force. Finally, in fulfilment of a commitment that we gave in Committee, it requires that no technical measure should be taken until the appeals process has been exhausted—that is another area of concern.

I apologise for speaking at some length, but I believe that this is an excellent package of measures, which is very much offered in response to the debates in Committee. I urge your Lordships to support these amendments. I beg to move.

My Lords, again, I think that it would be churlish not to rise, even at this time of night, to thank the Minister. There are many aspects, particularly relating to subscriber appeals, which are very much to be welcomed and which the Minister is now proposing to or has already put on the face of the Bill. I think that we have every reason to thank the Minister for listening in Committee and for improving the Bill and its procedures.

My Lords, I am afraid that I cannot entirely join in the acclaim for these clauses. The Minister has clearly received some good tactical advice from his office or the business managers, in that Amendment 51 deals with Clause 8 but the group actually goes up to—we are just entering the second stage, but are not really there until Clause 10—Amendment 100, which relates to the clause after Clause 13. I was not wide awake enough to object to this in terms of the grouping. I would not like to accuse my noble friend of sharp practice, but this is quite clever, as it means that some of the central issues, which I was hoping to debate in relation to Clause 13, are now being dealt with tonight.

I am happy with a lot of the provisions, even in Amendment 100, which relates to the body dealing with appeals against the process that the notification has gone through. What I am not at all happy with is the whole provision post Clause 13, which allows the appeals body, rather than a court, to impose sanctions. I have a fundamental opposition to this and will have to return to it in some other way—I hope that I can get equally good tactical advice as to how to do it on this Bill. My fundamental opposition to this has perhaps made me sharper in my criticism of earlier parts of the Bill than the Minister thought appropriate.

At the end of the day, this is where we end up—with an administrative process that denies the subscriber who has been accused of an infringement the right to due process and the right to go to court. In all other cases where breach of copyright is alleged, access to the court on the part of the defendant is always available. This is a new move, which raises fundamental issues. I will not go on about it any further tonight, but I will return to the matter. I need not deal with the amendments that I have put down in detail tonight—they are intended to be helpful in the earlier part—but when we come to the latter stages and the imposition of the sanctions, I shall remain pretty implacably opposed to this. It will act to the detriment not only of consumers, but also ultimately of the rights-holder industry. We ought to find another way. My latter amendments would delete the reference to the appeals body having the ability to impose those sanctions.

I regret that we are not going to get a sensible debate on this tonight—despite the quality of the personnel still here—but we may have to return to it. It will certainly be a matter of debate in another place.

My Lords, I thank the noble Lord and his team for all the effort that they have put into these amendments. It is definitely an advance, although I share the fundamental feeling of the noble Lord, Lord Whitty, that I would rather see this done by due process. Perhaps he should follow the latest advice on how to work out one’s frustration with the process of government, which apparently is to stab the upholstery with a felt-tip pen. I do not know how well that would go down here, but there is a lot of good upholstery.

My Lords, I share the misgivings of the noble Lord, Lord Whitty, on this. One of the reasons that we have managed not to challenge the Government more on this matter, and that the departments which have introduced the Bill remain rather implacable about it, is that they are not the Ministry of Justice. In an era when the Government claim to be joined up, it is astonishing that the Department for Business, Innovation and Skills and the Department for Culture, Media and Sport are driving this through against the interests of the citizen and in the interests of industry. It is right that those departments should represent the interests of industry, but where is the representation from the other departments which are meant to be batting in the interests of the citizen?

My Lords, it would be an interesting debate to look holistically at what is in the interests of citizens overall. Should we reward creative rights in industry? I believe that we should and that that is in the interests of citizens overall. Is this flying in the face of justice, natural or otherwise? No, it is not because it is—as the House has agreed—a very gradual process which does not even introduce technical measures until we have had a year to assess the process and we decide that it is necessary to use them at all. If we get to the point where those sanctions are introduced, there is a First-tier Tribunal, which is a judicial process. We believe that is better than dragging people in front of the courts. I again remind noble Lords that nobody gets there unless they really are serial infringers. We have tried to respond to a number of very important and constructive comments that were made during debates on these issues. We have submitted a range of amendments that I believe have in many cases met genuine concerns, although they may not please everybody.

Amendment 51 agreed.

Amendment 52

Moved by

52: Clause 8, page 10, line 26, at end insert—

“(fa) that the requirements concerning subscriber appeals are met in relation to the code (see section 124JA);”

Amendment 52 agreed.

Amendment 53 not moved.

Consideration on Report adjourned.

House adjourned at 10.52 pm.