My Lords, before we begin the debate it may be helpful for me to say a few words about Third Reading amendments. In line with the procedure agreed by the House, the Public Bill Office advised the usual channels on Friday that two amendments on the Marshalled List for Third Reading today fall outside the guidance in the Companion on Third Reading amendments. On the basis of that advice, the usual channels recommend that Amendment 1, in the name of the noble Earl, Lord Erroll, and Amendment 6 in the names of the noble Earl, Lord Erroll, and the noble Lord, Lord Whitty, should not be moved. As ever, this is ultimately a matter for the House as a whole to decide.
Amendment 1 not moved.
Clause 4 : Obligation to notify subscribers of reported infringements
2: Clause 4, page 7, line 40, after “subscriber” insert “which have been the subject of notifications sent after the effective date of an order made by the Secretary of State under section 124H”
My Lords, I am allowed to move Amendment 2, and in doing so I declare my usual interest as chair of Consumer Focus.
The amendment, which is fairly straightforward, is intended to ensure that notification of apparent breach of copyright by subscribers in a notification letter should not count towards any subsequent imposition of technical measures until after Parliament has decided that we should move to technical measures. However, I need to put this in a rather wider context. Those of your Lordships who have been present during earlier stages of this debate will know that I am not enamoured of Clauses 4 to 18, both from my concern as a consumer representative and from my concern about human rights. The Minister may be pleased to hear that I owe him an apology in relation to one aspect of the Bill where I misunderstood the intention. However, in general, although the Government have ameliorated some aspects of the Bill in the course of the Committee and Report stages, the basic problems still remain. So although this is a specific amendment, it goes to the heart of the way in which the Government propose to deal with the issue of online copyright infringement.
I regret to say that during the course of our consideration of the Bill, we have seen one of the worst examples in my memory of the political parties being captured by a producer interest. That applies not only to the Government and the bringing forward of the Bill, but to the opposition Front Benches as well. Indeed, we had the extraordinary position of the Liberal Democrat Front Bench, including the noble Lord, Lord Clement-Jones, who I know to be a decent and liberal chap in most of his political endeavour, bringing forward an amendment—which is now Clause 18—that is actually more draconian than the Government’s Clause 17. I hope that at some point, when we reach that stage, they will recognise the error of their ways.
Unfortunately, in terms of the balance of debate within this House, we seem to have a near unanimous position in support of the government proposals. Apart from the noble Earl, Lord Erroll, the noble Baroness, Lady Miller, myself and one or two others who have appeared maverick in this debate, this House seems to have accepted the wisdom of going through a whole range of changes in our approach both to the law and to the way in which our digital media operate. We have imposed police powers on ISPs, which are reluctant to accept them. We have threatened several millions of our citizens with exclusion from the internet by administrative decree, with dubious means of identifying who was actually the perpetrator of the alleged infringement. We have seen the Government, putatively this House and other political parties backing protectionism rather than competition and innovation, moving towards an exclusion of people from digital access rather than the inclusion that the rest of the Bill—which I fully support—provides. It has landed us with a pretty much unenforceable law that will not get a penny back to the rights owners whom the legislation was intended to support.
Out there, however, there is no unanimity at all. There is a very widespread opposition to the Bill from individuals who feel threatened, from parents who are concerned that measures will be taken against them because of their children’s use of the internet and from employers who are worried about the same thing in relation to their staff. Surveys conducted by my organisation, Consumer Focus, indicate that 75 per cent of the population do not understand what is lawful and unlawful in this context and that a rather higher proportion, when told what is lawful and unlawful, do not support those laws.
There are alternative ways of moving to a different system of accessing copyright material on the internet. Lawful systems of file-sharing exist in the music industry and elsewhere; it is just that they have a very low recognition by the public. The survey that we conducted showed that, of the 20 such systems that are or have been in operation, none has received an awareness level above single figures in percentage terms. Yet, ultimately, at various points in this debate, we have all agreed that a move to lawful systems of file-sharing is the aim of this measure.
Anxieties about the throttling or suspension of their internet connections have been expressed by people who will not be perpetrators. This includes not only businesses and parents, as I mentioned, but also the hotel trade—which provides access to the internet as part of its services to guests—libraries, colleges and other institutions whose students use the internet and wi-fi facilities. The Government have sort of acknowledged those anxieties but they have done nothing about changing the Bill to recognise them. They say that it will all be taken care of in the wash, as Ofcom develops its code with the industry, and that all these things will be clarified and no one needs to be anxious about them.
However, despite a few ameliorations, this is still a bad Bill. It is bad for the digital rights holders to press their interests in this way, when there are alternatives, and it is bad for the Government to risk alienation of a very significant part of the population by enforcing these measures. My noble friend Lord Puttnam—who probably takes a different view from me in terms of supporting the digital rights owners—said a very wise thing earlier in the debate, namely that the Bill would clearly have benefited greatly from pre-legislative scrutiny in which we could have looked at all the options.
Instead we have a Bill that does virtually nothing to encourage ways of bringing together the rights holders—the ISPs and lawful file-sharing operators—so that new business models could be developed. It could provide to the punters, and certainly to the casual users who are not making any money out of their copyright infringement, the ability to access cheaply, freely and flexibly through the new business models provided by those systems.
Surely that is the road that we should go down, to move from the impossibility of pursuing millions of people under these arrangements to a situation where there are lawful means of gaining access and the only people who will continue to be accused of infringement of copyright are those who are making money out of it or who are such mega-multiple-serial offenders that some punitive measures are necessary.
If we are to move to a more positive arrangement where most file-sharing is done lawfully, then an educational process will have to take place. All sides of the House have recognised that. My noble friend the Minister, like others, has said that stage 1 is an educational stage. However, it is not simply an educational stage. It is the beginning of measures whereby a subscriber can be designated and accused of an apparent infringement of copyright, which can eventually lead, through proceedings under the Bill, to a situation where draconian measures to throttle, cut off or suspend digital access are imposed.
As I said, I have an apology to make to the Minister. I misunderstood the provision on the second-tier appeals procedure, which I thought was another part of the body to be set up by Ofcom; in fact it is a separate body and has a quasi-judicial function. However, I am not entirely clear that that meets all the requirements of European law on the telecoms package. Even if it does, it does not alter the fact that, at the beginning of this process, an administrative body will be threatening and imposing a sanction that is not subject to due process and where the subscriber is effectively regarded as guilty until proved innocent.
I know that the Government and others in this House do not accept that, but that is how it will seem to millions of subscribers. The Government would have a more positive story to tell were they to accept that stage 1 is genuinely an educational stage and to say that they will use it not only to inform people of the copyright situation but to encourage the various parties to get together to develop and provide lawful means of accessing copyright material. That period should be tried for at least 18 months or a year after the Bill is passed and the code is drawn up. We will in practice need a somewhat longer period to assess that, but that at least gives a clear-cut distinction between stage 1, which is educative, and a decision by affirmative resolution of Parliament that we should move to stage 2, with all the penalties involved.
This amendment therefore says that those notifications to individual subscribers, who may or may not be the actual perpetrators, should not count towards the accrued total which would trigger the sanctions in stage 2—the technical measures by which we mean cutting back or cutting off access to the internet—until Parliament has decided that that is necessary because we have not made sufficient progress towards reducing unlawful copyright infringement or developing lawful means of accessing copyright material. Until Parliament has said that, no notification should count towards a subsequent penalty. After that point—when Parliament has decided on an affirmative resolution based on the Secretary of State’s assessment of the situation, which will itself be based on a detailed Ofcom report—if we need to move to technical measures, any notification letter should count.
This amendment will ensure that they do not count at the first stage and that they will be regarded, as my noble friend the Minister has said, as educational and informative. That would remove many anxieties among the public and it would certainly remove a significant number of my own. I have put this in a wider context which needs to be borne in mind, partly because this is the last opportunity to do so—and I promise not to speak at great length to subsequent amendments. The Government have an opportunity, if they were to accept this amendment, of allaying some of the anxieties, including, to some degree, some of my own. That would put this section of the Bill on a much more positive note. I would therefore hope, and expect, that my noble friend the Minister will be able to accept the amendment. I beg to move.
I think the noble Lord, Lord Whitty, should withdraw the remarks he made about my noble friend Lord Clement-Jones. A number of us have spent many years trying to wrestle with this problem. I understand that the noble Lord, Lord Whitty, has obviously come to it relatively late.
The Government have engaged in an extensive consultation to try to find the right balance between the rights of the copyright owners and the rights of the consumer. What concerns me about the comments of the noble Lord, Lord Whitty, is that a number of the things he has said about this Bill are simply not true. I am sure that the Minister will deal with that.
What worries me more particularly, apart from the intention of delaying the provisions, is that despite the fact there has been extensive consultation and significant movements by the Government to try to get the right balance between the rights of the copyright owner and the rights of the consumer, no proposal comes from the noble Lord, Lord Whitty, as to how the interests of the copyright owner should be protected.
It is a perfectly sustainable position that a lot of people take that everything on the internet should be free and that everyone should be allowed to download for free; most 18 to 23 year-olds take that view. I completely share the noble Lord’s view that this requires a significant educational process. The creative industries have now spent three, four, five or six years endeavouring to get a structure in place that will get the right balance between the interests of the copyright owners and the rights of the consumer, and we cannot suddenly now say, “Let us tear that up and start again”. That is essentially what this amendment says. I am afraid we cannot support it from these Benches.
My Lords, I very much hope that this is the last time I will speak in what has been a very protracted series of debates seeing this Bill through to its passage down the corridor. I find myself in a very odd, paradoxical situation. The noble Lord, Lord Whitty, is right: I bow to no one in my defence of the rights of legitimate copyright owners and also in maintaining that—in my judgment—the creative industries will eventually atrophy unless adequate protections are created and a respect for copyright is developed.
Having said that, I disagree with the noble Lord, Lord Razzall. I do not believe that enough has been done, or enough intelligence brought to bear, in creating a serious balance between what I would refer to as free-use protocols and copyright protection. The ball was dropped badly early on by the failure of the Government to understand that, in exchange for a firm commitment to protect copyright, a review should have been undertaken of those areas in which copyright could be freed up. We have done a pretty good job in this House in the area of orphan works, but there are many other areas where copyright unnecessarily prohibits educational use as well as any number of other uses—clip rights, for example, in the film industry. A trade-off should have been orchestrated early on between firm protection on the one hand, and optimum free use as advocated by the Creative Commons movement on the other. That was the first missed opportunity.
As to the other missed opportunity—I would be grateful if the Minister would help me on this—why on earth were the ISPs early on allowed to wriggle off the hook of their obligations as part and parcel of the value chain by which copyright material creates revenues and reaches customers? What kind of strange double think was it that allowed the ISPs to believe they were not part of that value chain? I used an analogy on the radio the other day which is not unreasonable: it is rather like the owners of chemist shops deciding that they have no responsibility for what prescription drugs are or are not sold over their counters. Every chemist understands that if you open a chemist’s shop you immediately take on a series of clear responsibilities—not only health and safety responsibilities but responsibilities for the products you sell. How was it that the ISPs managed to convince the Government that they were not part of a legitimate value chain with all the responsibilities that come with it? This is what puzzles me most. I sincerely believe that it lies at the core of the problems with the Bill, and I would be grateful if, at this very late stage of Third Reading, the Minister could explain to the House exactly how this occurred.
My Lords, the disquiets I had at Second Reading have not been dissipated, and I join the noble Lord, Lord Whitty, in many of his remarks. My disappointment is that normally this House is assiduous in making sure that due process is seen to be done in Bills. The fact that we are not going to be allowed to debate and come to a conclusion on Amendment 6 reflects poorly on the Government, but I accept that the usual channels have no doubt agreed that it will not be debated. However, the amendment encapsulates some of the principles that the noble Lord, Lord Whitty, was talking about. The Bill refers to a study of the efficacy of techniques, but this House will not be allowed to take a view on whether an economic and social impact assessment should be undertaken. That is the heart of the matter.
People like me who worry about what is in the Bill have never disputed that the creative industries need protection—I thoroughly agree that they do. However, I have felt all the way through the Bill that there are not sufficient checks and balances to protect the consumer. In particular, when a person, an institution, an internet café or a university is accused of transgressing these rules, it will hit the individual very hard. How will they disprove the accusations? They will have to employ a computer expert to counter the argument but there will not be legal aid for this; the money will not come forth. We should have debated these issues in this House. I believe that we would have come to the conclusion that we should protect the consumer better.
The real problem is that the other House also will not be able to come to any conclusion about this issue; its Members will get only a Second Reading. They will not have a chance to put amendments forward on behalf of their constituents to make the Bill better balanced. Given the imminent election, it is incumbent on the Government to include the checks, balances and concessions for which we have asked.
My Lords, I wish to make a couple of remarks, as I have my name down to this amendment. I thank the Minister for being so patient with us for raising so many points as we went round and round certain issues several times, seeking different ways of trying to get consumer protection. I know that this has been a difficult time for the Minister. I am sorry when he half rises to his feet and then has to sit down again. I wondered whether we should excuse him from doing so because of his hip. Perhaps he could just stand back from the Dispatch Box if we interrupt his speech and we could—in our courteous way—allow him a slight degree of latitude as regards our conventions.
This Bill is supposed to be based on the Digital Britain report produced by the noble Lord, Lord Carter, which encapsulated a vision of a future based on a digital economy. However, it contained considerable consumer focus; this Bill does not. A couple of issues that helped the consumer could have been included, but unfortunately I received notice earlier this afternoon that they lay outside the rigorously rigid rules for Third Reading, and therefore the usual channels had disallowed them. I had notified the Bill team of them because they might have helped to clarify some points for the general public, who will be watching this debate with interest. It may interest your Lordships to know that “Panorama”, at 8.30 pm tonight—
My Lords, I apologise for intervening, but the noble Earl must remember that we have a Companion to the Standing Orders, which is agreed by the whole House. It is not just a question of the Government or the usual channels; Third Reading amendments are subject to the guidance which has been agreed by the whole House. It is not a matter for the Government at all.
The noble Lord has not seen my e-mail in which I argued that I thought the issues were just within the bounds for various reasons. However, we should not be debating that now, for the very reasons that the noble Lord has just given. That issue might be worth taking up because they were different in emphasis. My Amendment 6, which has been refused, was not the same as the others, which offered enforceable protections to the consumer. Amendment 6 sought purely to produce a report and impact assessment for the same class of people through Ofcom. It did not have the same force as the previous amendments that we had tabled. Perhaps that is not allowable; perhaps it is. It is the sort of debate that this House should have. The matter should not be decided by just a small cabal of Front-Benchers.
The real trouble with the Bill is that it is highly unusual. We should not pass legislation in this way. The Bill is entirely a product of your Lordships’ House. It will go to another place and will receive a Second Reading. One is told that no amendments will be permitted to it. Many Members of the other place are extremely annoyed about that and are very upset that the Bill cannot be amended at all. The form in which the Bill leaves this place is that in which it will pass into law. Therefore, our rules at Third Reading should be much less rigid considering that this is the last time that amendments can be put down. It is a very dangerous way in which to pass legislation; in fact, it is unethical. As I have said before, if we were directors of a company we would probably be locked up for failing to undertake proper governance. Parliament should not behave in this way.
As I say, noble Lords may be interested to hear that “Panorama” at 8.30 pm tonight on BBC1 will be devoted entirely to this Bill. It will be interested to see what balance is struck in the arguments. I have no idea what is in the programme—
The channel is 101 on my Sky machine, and it is at 8.30 pm tonight, if that is of any assistance to the noble Lord.
There has been an escalation in notifications being sent out—without this Bill being in place—from various law firms, particularly American law firms. If these notifications are already piling up and are counted from day one, some people will have a huge handicap at the starting blocks. This amendment is essential as it would enable us to say, “We are drawing a line. We now have new legislation. We are going to move forward under the rules of this legislation. Therefore, notifications issued under previous legislation that might have existed will not count towards the various measures that might be introduced under this legislation”. It is entirely sensible to have a proper start point. I would be very surprised if anyone wanted to turn this down.
My Lords, I do not believe that we should accept the amendment. It is very clear under new Section 124G(2) of the Communications Act 2003, inserted by Clause 10, that technical obligations can apply only in relation to relevant subscribers, and relevant subscribers are those who are included on a copyright infringement list. It would not be sensible, therefore, to suggest that copyright infringement reports produced prior to the order imposing technical measures should essentially be set aside; they are the basis on which the subscriber is “relevant”.
It was neither helpful nor even fair of my noble friend Lord Whitty to suggest that everybody else was captured by external interests. We have had long, serious debates on these issues which have examined every facet of the legislation. It is untrue that the Government are backing protectionism as opposed to innovation; indeed, we have taken the opportunity time and again to say that there is a duty on copyright holders to produce legal means of access. My noble friend pointed to a poll indicating that 75 per cent of the population do not understand what is lawful and what is not. About that, I would say that it depends how you put the question.
My noble friend needs to make up his mind about stage 1. First, he said that you were more or less found guilty at stage 1; the next minute, he described it as an educational stage. He is right in the latter description: it is of course educational. Moving towards any possible sanctions under technical measures would be a long process. I shall not reply to every nuance of my noble friend’s argument, because we have debated the points time and again. Unfortunately, we must agree to differ.
My noble friend Lord Puttnam said that we had missed opportunities. He may be right, but we have tried as hard as we can. The Government have recently published a copyright strategy which looks at copyright broadly and the balance between owners, users and consumers at a European level. It may not be the total answer to what my noble friend requested. We perhaps do not have time today fully to debate the role of ISPs, although we will perhaps touch on it in later clauses. Attempts have been made to encourage ISPs to recognise that they have a role to play, certainly in relation to pornographic and paedophile material, where they have been expected to take action.
The noble Baroness, Lady Miller, again said that she was disappointed. Her analysis was similar to that of my noble friend Lord Whitty. She does not agree with the direction that we have chosen to take. I am afraid that it is not possible to satisfy her in those circumstances.
I thank the noble Earl, Lord Erroll, for his concern. I assure him that I can rise to the occasion today.
When it was said that we had not given the matter enough scrutiny, I could not help but wryly reflect that a 48-clause Bill that has had about 430 amendments tabled to it seems to me a fair amount of scrutiny. If we took the time and trouble to look at how many times we have debated the same issue, I think that we would refute that charge.
I return to the amendment. As I have said, it is not a question of imposing technical measures immediately. We have already made a number of amendments, one of which included a year’s interval before such measures could even be considered. However, this does not mean that everybody who thus qualifies as a relevant subscriber will suddenly find themselves subject to a technical measure once an order has been made. New Section 124G(2), in Clause 10, defines a “technical obligation” as,
“a technical measure against some or all relevant subscribers”.
This should be read in conjunction with new Section 124H(3) and (4) in Clause 11, which say that the order must specify the date from which the technical obligation should have effect and the criteria for taking the measure.
This gives the Secretary of State the flexibility to make an order that can be targeted—ensuring that those posing most threat can be tackled and those who may perhaps have been unfortunate or have changed their behaviour will be outside such technical measures. In short, while it is clear that copyright infringement reports produced prior to any order being made under Clause 11 remain relevant in terms of whether a subscriber is on a copyright infringement list and is therefore a relevant subscriber, there is sufficient flexibility in the system to ensure that any technical measures are imposed fairly and with fair warning. On this basis, I hope that the noble Lord will feel able to withdraw this amendment.
My Lords, I am obviously disappointed in that. This Bill, as my noble friend recognises despite his calm and patient dealing with the long scrutiny we have gone through, makes me quite angry. It is true, as the noble Lord, Lord Razzall, said that there was a lot of consultation prior to the publication of the Bill when this issue was being discussed. However, the representations made by consumer interests, educational interests, the ISPs and many others were not taken into account.
For the sake of future peace and harmony and good relations, I withdraw any implication that individuals are captured by producers. If people interpreted that personally, I apologise. It is nevertheless the case that the views, in particular of the music industry have been pressurising government over the past few years throughout this whole process. When the Government modified their position slightly, following the report of the noble Lord, Lord Carter, the pressure came back on and it was tightened up again.
I think there is an imbalance in this Bill. The amendment was not intended to destroy the structure of the Bill—I do not agree with the structure of the Bill but we have debated all that. It was intended to say that the first stage, which the Government themselves have said again today is an educational stage, should indeed be an educational stage. It should not be the start of a process that could end in very substantial sanctions. That would seem to me, if you were starting from scratch, a very sensible way of proceeding. As the Bill stands, it is only an 18-month delay that I am talking about and that is already built into the Bill. It would simply be that when you are sending notification letters to subscribers, who may be utterly unaware that any infringement has taken place, the letters should not accumulate until this House, and this Parliament, have decided that technical measures—namely, heavy sanctions—are actually required.
In normal, calmer circumstances certain Members of the House at least may well have accepted that argument. I certainly think that it would have been a major argument in another place. Given the present circumstances, I felt it necessary to make my case for this relatively minor amendment, which accepts the general structure the Government have now put in place to ensure that we do in fact get a positive outcome; that is, a lawful system under which consumers can access copyright material. I agree with the noble Lord, Lord Razzall, that digital rights holders have rights in the digital system. We want some return to them but actually this system does not give any return to rights holders. Closing down a significant number of subscribers does not mean that any money whatever goes to the creative artists. The only people who will immediately benefit from it are perhaps a few well-heeled organisations and their rather unscrupulous lawyers. It is not beyond imagination that those who are hit by this sanction will immediately go out and buy a copy of the original work. Quite where the £200 million that the Government expect to go back to digital rights holders emerges from this process, I am not clear—whereas, if we move to what my noble friend Lord Puttnam described, with the ISPs, file-sharing systems and digital rights holders getting together to create a lawful system, which would be accessible, a guaranteed income would go to the digital rights holders. This Bill does not guarantee income for the digital rights holders.
As we go down the line, that may become more apparent. I am hoping that in the process of the code with Ofcom, some of these things may be clarified in a direction that I can support. At the moment, I cannot support this Bill. I recognise, from the opinions expressed around the House, that I should not break the habit of a lifetime and ask the House to vote against the Government. However, I deplore the Bill and am afraid that there is nothing that the noble Lord can say—or my noble friend the Minister, who I hope soon recovers from his affliction. I apologise if this Bill has made his affliction worse and commend his patience and that of his colleagues in dealing with this and other legislation. However, nothing will convince me that this is right. I suspect that, further down the line, we will find that it is horribly wrong and we will be back here in three or four years’ time, trying to find some other way of dealing with this situation. Until that point, I withdraw my amendment.
Amendment 2 withdrawn.
Clause 8 : Contents of initial obligations code
3: Clause 8, page 12, line 12, leave out from “relate” to end of line 13
My Lords, I am proposing this group of seven amendments, which are needed for the purpose of tidying up the Bill rather than for any new policy purpose. For example, the first amendment, which removes text from new Section 124E(5) in Clause 8, is because it is otiose for paragraph (d) of that subsection to cover “any other matter” when the opening words of the subsection already refer to “any matter” at page 12, line 8. All the other amendments do a similar tidying-up job.
It is inevitable, given the number and the pace of the amendments that we considered at Report, and following a very full debate in Committee, that these sorts of things are picked up later. While they do not effect any policy changes, it helps the readability and understanding of the Bill if we put these things right when we spot them. On that basis, I beg to move.
Amendment 3 agreed.
4: Clause 8, page 12, line 23, after “disputes;” insert—
“( ) that there are adequate arrangements under the code for OFCOM to obtain any information or assistance from internet service providers or copyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code;”
My Lords, in earlier debates on these provisions we have discussed, and agree, the need for Ofcom to be able to require information and assistance from both internet service providers and copyright owners in their assessment of the need for technical measures. It goes without saying that Ofcom will need similarly to be able to require information and assistance from the same parties in carrying out their duties in administering and enforcing the codes. Section 135 of the Communications Act gives Ofcom wide powers to require information to carry out its functions under that Act. However, it is possible that a copyright owner might consider that the provision does not apply to them or that a copyright owner or ISP would argue that these functions of Ofcom under the codes are not covered by the existing power and would seek to challenge a request from Ofcom for advice or information. It is that possibility, and any resulting difficulties in administering or enforcing the code, that we are seeking to avoid by putting this obligation clearly and explicitly on the face of the legislation. I believe this is a sensible and uncontroversial point and I beg to move.
Amendment 4 agreed.
Clause 10 : Obligations to limit internet access: assessment and preparation
5: Clause 10, page 14, line 24, leave out from “subscriber” to end of line 25 and insert “, within the meaning of section 124B(3), in relation to the provider of the service and one or more copyright owners.”
Amendment 5 agreed.
Amendment 6 not moved.
Clause 12 : Code by OFCOM about obligations to limit internet access
7: Clause 12, page 15, line 38, leave out “made”
Amendment 7 agreed.
Clause 13 : Contents of code about obligations to limit internet access
8: Clause 13, page 16, line 41, after “disputes;” insert—
“( ) that there are adequate arrangements under the code for OFCOM to obtain any information or assistance from internet service providers or copyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code;”
Amendment 8 agreed.
Clause 14 : Subscriber appeals
Amendments 9 to 11
9: Clause 14, page 18, line 5, after “done” insert “(or, if there is more than one such report, as respects each of them)”
10: Clause 14, page 19, line 15, leave out “or abandoned any appeal”
11: Clause 14, page 19, line 17, after “determined” insert “, abandoned”
Amendments 9 to 11 agreed.
Clause 16 : Sharing of costs
12: Clause 16, page 20, line 18, at end insert—
“and shall, in relation to any provision for payment by subscribers and the funding of their own costs, first be subject to an economic and social impact assessment confirming that relevant subscribers are not in practice, by reason of such provision(s) or the incidence of costs, prohibited from effectively exercising their rights under section 124K (subscriber appeals)”
My Lords, Amendment 12 is much more straightforward and I hope that the Government will be prepared to accept it. At some stage during the Bill it was determined that not only should the ISP share the cost with the digital rights owners, but also, in certain circumstances, the subscriber should. I can conceive of situations in which this would be legitimate and in which the subscriber’s behaviour could lead to them sharing the costs. However, in general it is not legitimate. It is certainly not fair and it is not due process that the subscriber should be charged the cost of what is, effectively, the digital rights owners trying to pursue their rights.
My amendment would not delete the possibility of the subscriber being asked to meet part of the cost, but it would mean that the imposition of that cost would not inhibit the subscriber from taking forward an appeal against the sanction. In other words, the share of the cost imposed by the tribunal should be assessed in terms of its economic and social impact on the subscriber and whether or not their potential share would prevent them from taking this further and being able to make an appeal. As the noble Baroness, Lady Miller, said, this is not subject to legal aid, so the cost of an appeal is a very relevant consideration. If this imposition of cost inhibits people from taking their right to appeal, that is a very dangerous road to go down. This does not alter anything else that the Government have in the Bill; it would simply protect more vulnerable consumers from the imposition of costs. In that respect, I would have thought that the Government could accept it. I beg to move.
My Lords, I have put my name to this amendment because I have seen how the threat of costs has been used to blackmail people into not appealing, particularly in employment with very small employers. For example, an employee may leave for whatever reason; the employer may have done nothing wrong but it does not dare to defend itself because of the threat of costs. I would hate to see that read across into this Bill. We have previously discussed the behaviour of certain firms of solicitors. I understand that that cannot be stopped immediately—it is not simple and the whole thing would be very long-winded. However, something like this amendment would be a sensible way of stopping abuses from day one.
My Lords, this amendment addresses an important issue. It is essential that subscribers have the ability to appeal against notifications and decisions, both in terms of the appeals structure being in place and in terms of the ability to utilise the appeals process without undue financial concern. Thus far I am happy to agree with the noble Lords. However, I am not convinced that the sort of social and economic impact assessment advocated is proportionate, nor do I think that we need to see this in the Bill. Rather, this is exactly the sort of issue that should be raised as part of the consultation that we would conduct on a statutory instrument on the sharing of costs in the event of technical obligations being imposed.
I understand that we need to look at this in the round and that the issue is not just the refundable fee, which we have discussed before in this House. We have given assurances on that front: there should not be costs that would inhibit the process of appeal. However, because this is such an important issue, it will certainly be part of the consultation on both the statutory instrument that would introduce technical obligations and the statutory instrument that would be needed to order the sharing of costs in—I stress this—the event of technical measures being applied.
The consultation that we will shortly launch applies purely to the regime under initial obligations. We will of course be asking within that consultation whether and how subscriber contribution should be dealt with, although, as I have said on a number of occasions, we have given our views about appeal charges not inhibiting an appeal at the initial obligations stage. That being the case, and with the assurance to my noble friend that I fully appreciate the importance of what the amendment is addressing, I hope that he will feel able to withdraw it confident that the issue will be fully and properly addressed when it becomes relevant.
Amendment 12 withdrawn.
Clause 17 : Interpretation and consequential provision
13: Clause 17, page 21, line 46, leave out “for the time being”
Amendment 13 agreed.
Clause 18 : Preventing access to specified online locations for the prevention of online copyright infringement
14: Clause 18, page 22, line 16, at end insert—
“(1A) The copyright owner applying for an injunction under subsection (1) shall first have given notice to the service provider in accordance with subsections (1B) to (1F).
(1B) The notice must be in writing, deliverable electronically, contain the name, registered address and contact details of the copyright owner claiming infringement, and prove, by digital signature or otherwise, that it comes from the said copyright owner.
(1C) The notice must be addressed to the address or agent designated by the service provider for the receipt of such requests.
(1D) The copyrighted work of the owner claimed to have been infringed must be stated, or, if multiple copyrighted works at a single online location are covered by a single notification, a representative list given of such works at that site.
(1E) Information must be included reasonably sufficient to permit the service provider to locate the online location to be blocked.
(1F) The copyright owner must also take reasonable steps to deliver a copy of the notice to the operator of the online location.”
In moving this amendment, I will also speak to Amendments 16, 21 and 22. There are different views about the merits of the Bill that we have so carefully discussed over the past three months and there is clearly much to discuss in the other place. Of course, there are still some unsatisfactory aspects. My noble friend Lady Miller mentioned the major problem that remains with use of the internet by libraries and universities. The noble Lord, Lord Puttnam, had some good points to make about the freeing up of copyright laws, which will mean the implementation of some aspects of the Gowers report that were not included in the Bill. Orphan works are another area that will leave this House in an unsatisfactory state.
However, I strongly disagree with the noble Lord, Lord Whitty, who seems to have suggested in today’s debate that we have all been wasting our time for the past three months. I certainly do not accept that. I am quite clear that the Bill leaves this House in far better shape than when it arrived. The Government’s willingness to listen and to make changes to Clauses 4 to 16 is partly responsible for that. On these Benches, we have played our part to help significantly alter the Government’s original proposals relating to illegal P2P file-sharing and the possible introduction of technical measures. We take some satisfaction that there is now an explicit assumption, contrary to what the noble Lord, Lord Whitty, said, of innocence until proven guilty. None the less, the Government strenuously and rather bafflingly, throughout our deliberations on the Bill, insisted on the retention of Clause 17. These Benches opposed and helped to defeat the Government’s proposals, which would have given them wide powers to change copyright law by order.
These amendments consist of a number of clarifications and improvements to the amendment that was introduced on Report to insert a new Section 97B into the copyright Act. I do not accept that the amendment that we voted on at Report is worse than Clause 17, but these amendments are much more targeted. I certainly do not accept that all this is evidence that we are in the pockets of the music industry. The music industry was mad keen—as indeed were many broadcasters and sports organisations—to keep Clause 17. I see that the noble Lord, Lord Triesman, is in his place. He made a passionate speech about Clause 17. The industry wanted Clause 17. New Section 97B is very much a second string in those circumstances.
We drafted new amendments as a result of discussions with the Open Rights Group and others, which we believe will go some way towards meeting the objections of critics. They may not be officially endorsed by the Open Rights Group, but we are grateful for its assistance none the less.
Amendment 14 would provide that a notice of a request for blocking must be given to service providers and online locations in the prescribed form. Amendment 16 would require courts to consider whether an injunction would disproportionately prejudice legitimate uses and legitimate users of the online location. This is to deal with any issue where an injunction could be used to disproportionately affect sites such as YouTube. Amendment 21 clarifies that the courts would determine costs where an injunction had been granted. In order to make the process more even-handed between an ISP and a rights holder, there is no presumption as to costs. Amendment 22 would create a remedy whereby innocent parties affected by requests for blocking where no court order was sought would have access to appeals via the courts and the ability to claim compensation.
These amendments would help to rebalance the clause and are worthy of support. Without wishing to pre-empt the noble Lord, Lord Howard, I indicate our support for the other amendments in the group. I beg to move.
My Lords, I assume that the noble Lords, Lord De Mauley and Lord Howard, will be speaking to their amendments in this group, which I support. I do not like Clause 18 at all, which is unclear in certain areas. I have tabled a set of amendments, which we shall debate immediately after this, to clarify the issue of search engines, which I am assured will be trapped by what is proposed. I asked for those amendments to be degrouped; I think that the issue needs to be looked at separately, as there may be some people who feel very strongly about it. It will be very brief. The amendments in this group go some way towards improving Clause 18. I still do not think that it would be perfect, but anything is better than nothing. Therefore, I will support the amendments. This clause cannot, however, be made perfect that easily. It needs a lot of thought, but these amendments are a good start in the right direction.
My Lords, I am delighted that we are making progress in this direction. Whether the Government will listen to the siren voices of British Telecom and others saying that this is a step in the wrong direction, I do not know. It seems to me that that was where Clause 17 was aiming. The Government wanted to get away with something much broader and much less definite and, now that they are confronted with something specific, they seem to be running away from it. That shows how right we were to delete Clause 17. There are clearly major issues to be settled.
We ought to be making it inconvenient for people to find illegal material. There will always be people who will go to great lengths to find stuff that they should not. They are a small minority and it takes a lot of their time. We want to deal with the ordinary people who are finding it terribly easy to find illegal material. It is as if every street was lined with stalls selling counterfeit goods. If we can just take them off, yes, new ones will pop up, but they take time to get known and, when they are known, you knock them off. If you go in this direction with Clause 18, you deal with the bulk of the business.
Certainly in that way we begin to answer the questions raised by the noble Lord, Lord Triesman, in Committee, about people who are streaming football matches straight after the game or maybe during the game. These people have identifiable sites. People know where to go. You knock them on the head. Sure, a few will pop up elsewhere but, before they can do any damage, they become big enough to notice and you sit on them again. That seems to me the sensible approach.
We will need proper protection for search engines. We will need to think carefully to what extent they can be asked to block material. I think that they will have to be asked to block material to some extent. I looked for a copy of Stephen Fry reading one of the Harry Potter stories the other day, which he does beautifully. Listening to it is a wonderful experience. When I looked for it on Google, the first three pages were occupied by illegal material. It was extremely difficult to find something that was legal. It was easy enough to identify the illegal material because it all referred to BitTorrent. It would be easy enough to drop those services from the index, as they advertise that they are illegal.
I do not see why search engines should not be able to block these things. Taking them out of search engine results would be one of the most obvious ways of making life inconvenient and one of the easiest ways of doing so, compared with trying to block individuals’ internet traffic. This will be a productive way to go. I suspect that it will require a lot more consideration than we have had time to give it, but I go back to my amendment tabled in Committee. This is where Clause 17 ought to have been heading. As has been suggested by the noble Lord, Lord Puttnam, if this gets struck from the Bill in the wash-up, we certainly ought immediately to begin discussions on how we can make a success of going down this route to deal effectively with piracy at source, rather than just prosecuting those who happen to be drinking the counterfeit rum.
My Lords, I thank the noble Lord, Lord Lucas, for his generous comments and record the fact that I agree with much of what he said. I add my voice in urging the Government again to have a discussion with the search engine companies. I know that it will not be the first time that an attempt at fruitful discussion with them has taken place. It seems a plausible argument to put to them that there are a variety of things which are illegal and undesirable in all sorts of different ways but which the technologies that they employ can open up to people. It is not beyond them to deal with that. It is certainly not beyond them to co-operate, because it is socially, let alone legally, right to co-operate. Without wishing either to hear things that the noble Lord did not intend, or to put words in his mouth, I urge that conversation to go ahead as soon as possible in light of the clause that is now in front of us.
My Lords, when the Minister responds, it would be worth him answering the question asked by the noble Lord, Lord Puttnam, although he is no longer in his place. Why are the ISPs so exercised about such issues? Why were they allowed to get into the position where this sort of thing was nothing to do with them? We debated that in Committee. As we know, the ISPs are strongly against this amendment because they have traditionally taken the view that they are like the Royal Mail. When you send a letter through the Post Office and the Royal Mail delivers it, nobody suggests that the Royal Mail should be responsible for the content of the letter, even if it is defamatory or in breach of copyright. That is how the ISPs regard themselves. Clearly, it is a major issue to get the balance right between the ISP in the role of the Royal Mail and the ISP taking down material that is illegal or in breach of copyright. This amendment is the first time that the issue has been addressed. The Minister indicated that the ISPs take down material relating to paedophilia and illegal hard pornography, but I understand that that is only by voluntary agreement among the ISPs and that not all of them sign up to it. This is a significant step forward and it explains why the ISPs are against it.
My Lords, with the permission of the House, it may help if I clarify that issue, which I know a little about. It has to do with Europe and the e-commerce directive. ISPs, in acting purely as a way of accessing the internet—as a pipeline to other content—and not delivering content themselves, are mere conduits. As such, they have an exemption. It is rather like the Royal Mail not having to censor all your mail to check that you are not sending bad stuff. If the ISPs tried to check everything that passed through them, it would kill the internet. There has to be a difference between people who host content and an ISP, which is just a conduit to get to content and does not check what is going through it. There has been confusion on that throughout the Bill. I have not worried about it in the past but it may help the noble Lord, Lord Puttnam, when he reads this later.
My Lords, I made the Government’s view of this clause clear on Report. I certainly agree that we should have a way of tackling online copyright infringement that will not be susceptible to the provisions in Clauses 4 to 17, but I am afraid that this clause is not it.
I have already outlined our primary concerns. At a purely practical level, despite the drafting in subsections (6) and (7), this is not compatible with the technical standards directive and will not be capable of being enforced. Furthermore, as the industry, public and media response over the past 10 days has made clear, this measure needs careful design if we are to avoid significant disadvantages and unforeseen and unwanted consequences to the internet and the digital economy. I reassure the noble Lord, Lord Lucas, that although I am a former employee of BT, I am not listening to the siren voices. I always enjoy listening to the noble Lord’s dulcet tones. We are no longer running away from this issue but, I hope, heading in the right direction.
As I said, there has been a lot of response in the media. I acknowledge that the noble Lords who proposed this clause share the Government’s aim of addressing online infringement of copyright, which is the intention behind this clause. Our intention as the Bill moves to another place is to try to bring forward a clause that would ultimately achieve the same effect, but one which could be enforced, by proposing a power for the Secretary of State to bring forward regulations to achieve the desired effect in relation to site blocking. This would allow for not only proper notification under the technical standards directive but also—this is important—proper consultation and consideration of the evidence for the need for and proportionality of the measure.
This is a complex issue, as has been acknowledged even in this short debate. I thank the noble Earl, Lord Erroll, for the clarification he gave about the role of ISPs as a conduit and the fact that they cannot check everything. Given that and the fact that we do not believe that this clause as drafted could be legally enforceable, it does not help for the Government to take a view on the amendments. I do not believe that amending the clause would be particularly productive. We need instead to look at something that would work legally by giving the Secretary of State a power to bring forward regulations to achieve the desired effect, while taking into account all the points made during the House’s consideration of the clause. That is a genuinely sincere commitment. This includes the need to ensure adequate protection for national security, which I am sure the whole House will agree is necessary.
On the points made by the noble Lord, Lord Clement-Jones, we recognise that these amendments are well intentioned. It can only be a good thing for subsection (4), for example, to be removed, though I am unsure about the proposed provision on costs. I acknowledge that the noble Lords have attempted to address the harm that could be caused by copyright owners seeking to get sites blocked by threat rather than by court action but I am uncertain that these amendments deliver that intention.
Amendments 19 and 23 seek to respond to a further concern, to which I alluded on Report, about the likely impact on the ability of our intelligence and law enforcement agencies to do their jobs properly. I am grateful to the noble Lords, Lord Howard and Lord De Mauley, for this attempt to resolve that concern. However, this amendment very much misses the point. We cannot support the notion that the Secretary of State should present evidence in relation to every injunction application when it may be possible to establish a consistent and foreseeable position. Separate consideration in relation to each application does not seem like a good use of taxpayer money, court time or, indeed, the time and money of the copyright industries, which might pursue any number of fruitless applications while waiting for a court to reach a different decision.
I reiterate the point that I made earlier. As the Bill moves to another place, it is our intention to try to bring forward a clause that ultimately achieves the same effect. That is a sincere and constructive commitment, and I have tried to address the genuine concerns that have been expressed. I give the noble Lord, Lord Triesman, the reassurance that a conversation and dialogue would of course be required to take place.
I think that there was one other point. Although my noble friend Lord Puttnam is not in his place at the moment, the noble Lord, Lord Razzall, rightly reminded me of the question of why ISPs are allowed to say that this has nothing to do with them. He rightly referred to the “mere conduit” defence from the e-commerce directive. In our view, ISPs are an important stakeholder and should be involved in taking this matter forward but within the e-commerce directive.
I trust that, in the light of the assurances I have given, the noble Lord will feel able to withdraw the amendment.
My Lords, first, I thank all noble Lords who have taken part in the debate and, in particular, the noble Lord, Lord Triesman, who it is nice to see again in his place in a more positive frame of mind. I also thank the noble Lord, Lord Lucas, for his very useful, rather forensic comments.
In response to the noble Earl, Lord Erroll, I do not think that during the course of the Bill we have had confusion about the role of ISPs; I think we have all been very conscious of their limited duties. That is why, as my noble friend Lord Razzall indicated, this amendment is so controversial so far as concerns ISPs, and has led to a letter in the Financial Times from quite a number of them. Let us not forget that a lot of the proponents in this are in business. Of course, many copyright owners are businesses—some large and some small, such as photographers—but some on the ISP side are also very large businesses, so this is not simply a case of big business against the small person. That has needed to be emphasised in this debate.
I thank the Minister, in particular, for his reply. Of course, there is many a slip between cup and lip, and the debate will now move to the other place. I take it from the Minister—and hope that this is the case—that this is not a reintroduction of Clause 17 but a much more targeted approach to consulting over regulations with a specific target.
In view of the controversial nature of the proposals that we tabled on Report, which I more than discovered in the reaction of members of my own party, I hope that, when drawing up the new regulations, Ministers will be very keen to observe one or two points. Perhaps the Minister will find these reasonably useful, certainly as regards the available research. I hope that the regulations will be very rooted in the evidence of copyright infringement and of the amount of downloading that takes place from the prevalent overseas websites.
I also hope that, when they consult, the Minister and his colleagues will respond to the concerns of those who believe that site-blocking is a serious step, both technically and legally. I welcome his undertaking to have an extensive consultation on the regulations. However, it is incumbent on those who are absolutely dead-set against this kind of measure to demonstrate just how these new models can be set up unless there is adequate protection against copyright infringement. I think that we have debated that matter throughout the past three months but the noble Lord, Lord Whitty, is clearly unconvinced that some incentive, apart from pure education, is needed to persuade people to download legally. I think that we need to be fairly clear on that score as well.
I also hope that the Minister will make sure, when the Government consult, that the safeguards which we have tried to build into this clause—both in the original amendment and in these ones—will very much be reflected in the regulations in order to make sure that the operation of any web-blocking mechanism is proportionately applied. Most importantly, we on these Benches have had many representations from all sides of the argument that there should be a full and proper consultation period. I hope that this will not be just a quickie in the course of the next few months but that all stakeholders will be consulted. I accept that as a criticism of the amendments which we put forward from these Benches and I hope that the Government do not make the same mistake. I beg leave to withdraw the amendment.
Amendment 14 withdrawn.
15: Clause 18, page 22, line 20, at end insert “and, in the case of online search service providers, the extent to which inclusion of, or access to, copyright infringing content is incidental to the main purpose of the search service,”
My Lords, I beg to move my Amendment 15, although I suspect that is a bit redundant after what I have just heard from the Minister. I need first to declare that I have a tiny interest in a search engine start-up that is for business purposes. It is not a rival to Google—it is not intended to be—and it is not worth a lot of money, but I have an association with search engines. Perhaps I may point out quickly that I agree with the noble Lord, Lord Clement-Jones. This is not one-sided—it is big business versus big business. Small business is not getting a look-in in this Bill at all. That is the problem which I, the noble Lord, Lord Whitty, and some others have with it.
My concern about the new clause—perhaps I may say this before moving straight on to Amendment 15, which encapsulates a principle, and I would like to know whether the Minister intends to incorporate this principle into whatever the Government are proposing—is that it will not be subject to any amendment, or discussion and then amendment, by either House. It will be inserted somehow between leaving this House and arriving at another place. Presumably it will be discussed on Second Reading there. I presume that it will then be dealt with during the wash-up. We have no idea what it looks like, and it seems to be an abuse of parliamentary process. I think that that is what I was hearing.
I may be wrong, but I thought that the convention on wash-up is that there has to be a Second Reading and one Committee stage on a Bill before it can be dealt with in the wash-up. Others may be able to give a better explanation of the position but I believe that that is the case.
In that case, following my noble friend Lord Maxton, what mechanism do the Government have for introducing new material into the Bill? I appreciate that I am asking this question of the noble Earl, Lord Erroll, when it should probably be directed to the Government.
It might benefit the House if that question were dealt with. Perhaps I should first make my point on Amendment 15, which the Minister can deal with quite easily.
I asked for Amendment 15 and my other three amendments to be degrouped from the others—the noble Lord, Lord Lucas, has already spoken to my grouping—because I wanted them to be taken as a specifically different point. The point is slightly different and the amendments are very specific and targeted. There is a challenge for search engines. It became apparent after new Clause 18 was inserted into the Bill that most of the large search engines were worried they would be caught by it. This arose from the words,
“to prevent copyright infringement content”—
which is not really grammatically correct—
“being accessed at or via that online location”.
They were automatically caught by that. It does not really matter what the Minister may say—there is nothing there about producing regulations to define things more tightly; it is for the courts to decide later. It therefore seems important for this House to state whether or not we intend that general purpose, bona fide search engines should be caught by the clause. If they are to be caught, so be it, but it will affect Britain’s ability to take part in a global economy.
I tried to produce something that would do with a lawyer who kindly volunteered his services pro bono. It was an extremely difficult task to perform at short notice, but we tried to do it by inserting two references that go back to the Electronic Commerce (EC Directive) Regulations 2002, which largely deal with the issue. I also put in a bit that says,
“in the case of online search providers, the extent to which inclusion of, or access to, copyright infringing content is incidental to the main purpose of the search service”.
In other words, anything that was deliberately intended for the purpose of giving indirect access to copyright-infringing material would be caught. That is not excepted by this. The provision is supposed to exempt only the main search engines.
Many people want to know what the House intended. Did it intend to cause problems for large search engines, or are these being caught inadvertently? It is difficult to define the boundary between them and a site which provides access to an indirect route or to an index of a whole load of copyright-infringing sites. The Government need to specify the provision far more tightly than they have done in their amendment. Will the Government be giving us a provision that neither House of Parliament can consider and amend? It would be useful if the Minister gave us a statement on the Government’s attitude to search engines. I suggest that they should use the super-affirmative procedure, as proposed in Clause 17, if they intend to come back with a provision that will be active after the general election but which we will not have debated properly. I beg to move.
My Lords, I agree with the noble Earl that it is important to deal with the position of search engines, which are not directly addressed by Clause 18. Google is very good at blocking access to sites; it just relegates them to page 256. If it does not like something that comes up it just disappears in the rankings. There are mechanisms commonly used by search engines to make it inconvenient for people to find content that Google does not approve of.
To go back to what the noble Lord, Lord Puttnam, said, it is a question of taking ISPs and search engines and joining them in, so as not to let them think that in some way they are isolated and can act all on their own without any thought of how they fit into the mesh of copyright—the melding of the interests of the consumer and the producer that lies at the heart of it. All the players have a part and we should protect what search engines do assiduously. We must be careful not to start acting like the Chinese Government. On the other hand, as I am sure that they will not, they should not think that they can stand completely aside and act with complete freedom as if they do not have a role in how copyright is protected on the net.
My Lords, I have already reminded the House of the Government’s concerns on the legal status of Clause 18 and the lack of transparency and accountability with which it has been inserted into the Bill, and I have indicated our intention to bring forward a revised provision to deal with these problems. The usual channels will be dealing with that in the wash-up, when it has to be done by agreement. I also reassure the noble Earl, Lord Erroll, that we will ensure that the government amendment is compatible with the e-commerce directive.
These amendments seek to respond to a further concern: the need to ensure that search engines are not inadvertently affected by the measures proposed in this clause. The amendments highlighted potential risks that the service and public benefit offered by search engines may be at risk if, in the course of providing search results, they happen to inadvertently feature copyright-infringing material. The amendments proposed by the noble Earl, Lord Erroll, rightly address important points. Moreover, they underscore my initial point that this is a measure that needs careful design.
Again, a power for the Secretary of State to bring forward regulations to achieve the desired affect would allow for the full consultation, analysis and consideration necessary to ensure that we avoid these and other potential unintended side-effects or consequences. As I said in relation to the previous group of amendments, given that we do not believe that this clause as drafted could be legally enforceable, amending it is not particularly productive. In light of these comments and the assurances that I have given, I hope that the noble Earl withdraws his amendment.
I thank the Minister for those assurances. They go a long way to assuaging the fears of a huge swathe of the internet industry about what, as the Minister said, could come about as the result of the law of unintended consequences. The only thing that he did not answer that fascinates me is—what procedure is there for inserting or changing this legislation from now on? I am not quite sure how that can be done.
I answered that. However, the noble Earl is clearly as unfamiliar with the procedure as, I confess, I am. Nevertheless, I am reliably informed that the usual channels will see the proposed new clause and that an amended clause will then be dealt with in the wash-up. I cannot give any more details. My noble friend the Deputy Chief Whip is nodding in the affirmative. I rest on the assurance that we intend to do this. It is a viable way forward.
I am in a difficult position. I am delighted that the Minister realises the shortcomings of this clause; that it has replaced the previous Clause 17, which I did not like either; and that, therefore, something better will appear. On the other hand, the method by which it is appearing is by a complete and absolute abuse of parliamentary process.
I am not quite sure why we bother to sit and debate any laws at all if the Front Benches in another place can get together and put whatever they like into a bit of legislation. That is for another time and another place. I have always found the whole area of wash-up very troublesome, particularly as a Cross-Bencher who does not get a look-in at all. I have seen some very funny things going through. When I see two Front Benches colluding, I usually think that we are in trouble.
With all those caveats, I welcome the Minister’s movement on this clause. I hope that what they propose will look good. I hope that he has listened to what I said about the super-affirmative procedure and that they would insert something like that so that we could have proper parliamentary scrutiny. I beg leave to withdraw the amendment.
Amendment 15 withdrawn.
Amendments 16 to 23 not moved.
Clause 20 : Appointment of manager of internet domain registry
24: Clause 20, page 26, line 16, leave out “any” and insert “one or more”
The Government accepted an amendment tabled in Committee by the noble Earl, Lord Erroll, when he sought to ensure that all the directors of a registry were not unnecessarily replaced by the manager. We agree that some directors might be on the side of the manager and that therefore it would be useful to retain their expertise, which is the burden of the noble Earl’s contribution and amendment.
On reflection, we agree that the current text is unclear and could be read as meaning that we would replace either one director or the whole board. Therefore, we have tabled this small amendment merely to clarify the fact that the manager could retain the expertise of one or more directors if he so chooses. I beg to move.
My Lords, I added my name to this amendment, which shows perfectly what Third Reading is for. I was delighted that the Government accepted my amendment at the previous stage and saw that in principle it was good. But, quite rightly, they have spotted that it could be improved. With that, I am delighted to welcome the improvement and I thank the Minister for moving it in such a kind way.
Amendment 24 agreed.
Clause 39 : Payment for licences
25: Clause 39, page 46, line 35, after “licence” insert—
My Lords, unfortunately, I have left my notes on this amendment downstairs because I was in rather a rush. From what I remember, it concerns a mismatch as regards spectrum and the spectrum cap. Spectrum released under the spectrum cap can be paid for in certain ways, but spectrum can also be divested voluntarily or under another arrangement. I sent a note to the Minister and the Bill team about this. There seems to be a mismatch between the two. In proposing these amendments, I am trying to be helpful and I hope that the two things will be brought into line. It would tidy up something which could otherwise be a block to the reallocation of spectrum in a sensible way. I beg to move.
My Lords, I am grateful to the noble Earl, Lord Erroll, for being more explicit in the note which he delivered to the department than he has been in proposing the amendment. We know exactly the point at which he is driving, although we are going to ask him to withdraw his amendment. I hope that he will listen carefully to the reasons why, because we have given it the fullest consideration.
Included in the Government’s spectrum proposals, now before Parliament, are temporary spectrum caps that apply to the planned combined auction of 800 megahertz and 2.6 gigahertz spectrum. These caps are designed to ensure that the acquisition of valuable spectrum is spread more equitably between existing operators and new entrants. In certain circumstances, operators may therefore have to release existing spectrum to be able to bid in the combined auction. In those circumstances, costs will be incurred by the releasing operator in clearing their released spectrum. To offset these costs, it is proposed that additional payments are made by any operator acquiring this relinquished spectrum to the operator releasing it.
At present, this additional payment relates only to spectrum released in order to stay within the limits of the caps. However, these amendments would extend that payment to any spectrum released into the combined auction. In particular, it would potentially include spectrum being released by T-Mobile and Orange, required by the European Commission as one of the conditions necessary to gain its approval for the joint venture.
In effect, these amendments would allow the joint venture to receive a payment from another operator to subsidise the cost of its obligations to the European Commission, which we do not consider to be reasonable. The two companies involved are likely to benefit considerably from the joint venture. Indeed, they would scarcely have thought about it and have embarked upon the venture if that were not the case. But there are costs associated with the joint venture and in obtaining the approval of the Commission it is only right that those costs are borne by the operators concerned and not by any other operator which will not benefit from the venture. That is why the Government have taken the position that they have. I hope that the noble Earl will feel that that is reasonable and that he can safely withdraw his amendment.
My Lords, I thank the Minister for that extremely informative and useful reply. I now understand that this is quite a complex issue, and as usual it is like an onion—there are layers within layers. I fully understand the Government’s reasoning. I beg leave to withdraw the amendment.
Amendment 25 withdrawn.
Amendment 26 not moved.
Clause 43 : Extension and regulation of licensing of copyright and performers’ rights
27: Clause 43, page 52, line 14, leave out “(within the meaning of section 116)”
My Lords, this group of clarifying amendments is intended to tidy up drafting and correct unintended errors in this clause.
Amendment 27 has been inserted because “copyright licence” is now defined for new Section 116B by Amendment 31. The wording deleted by this amendment is therefore superfluous. Amendment 35 makes a corresponding change to performers’ rights. Amendment 32 inserts the words “by regulations” with the effect that the requirement to adopt codes of practice will indeed be by regulations. Amendment 39 removes the words “in accordance with regulations”, this is to ensure consistency with the definition of orphan works in new Section 116C of the Copyright, Designs and Patents Act 1988. Amendment 40 has been tabled so that the sources searched to determine whether a performer’s property right is orphan are sources which are likely to have details which can help trace the ownership of these rights. Amendment 41 corrects an error—the provision is dealing with performers’ rights and not copyright works, so the reference here should be to “recordings” and not to “works”, the amendment makes that necessary corrective change.
The substitution of “copyright owner” with “copyright interest” in Amendment 42 is again necessary because the provision is dealing with performers’ rights and not copyright. Amendment 43 corrects a cross-reference. Amendment 33 applies the definition of “member” inserted by Amendment 31 to Schedule A1 to the copyright Act and finally Amendment 44 applies the definition of “member” in Schedule 2A to the Copyright Act where Schedule A1 applies for the purpose of paragraphs 1A to 1D of that schedule.
It will have been deduced by the House that these are technical and necessary amendments and I beg to move.
My Lords, I briefly rise to recognise that these are drafting amendments. I very much hope that the Government’s mind is still not completely closed under Clause 43 generally, and I mean in respect to the orphan works provisions. Clearly, there are issues which photographers are still very cognisant of. It would not be in order for me to put down amendments again on that area but I hope the Government will consider this in another place.
That is a good try by the noble Lord. Here I am dealing with technical amendments and there he is opening up the whole operation of wash-up. Let us be clear about wash-up—and I hear what the noble Earl, Lord Erroll, said just a few moments ago. I cannot really help him about the extent to which he, as a Cross-Bencher in the upper House, is able to influence the democratic will that will be largely exercised, he will not be surprised to hear, at the other end.
It is the case that there will be clarification of these issues and full debate, we trust, on Second Reading. If the noble Lord, Lord Clement-Jones, has got his way and the election is in June—of course, he might well be right— then we will have a great deal more time in the Commons for more stages of this Bill to be considered. If we assume, however, that we do not have too much time and that there may only be a Second Reading, of course the consequences of the deliberations through the usual channels with regard to wash-up will still need to be considered by both Houses.
The noble Earl, Lord Erroll, will fully understand that in those circumstances what will go forward is an agreed position between the parties and that therefore the obvious expectation will be that the process in the Chambers will be a relatively straightforward exercise. That is the concept of wash-up. I only say to the noble Earl, Lord Erroll, he might not like it but the alternative is that every Bill that has not completed all its processes would utterly and totally fall. I am quite sure he would regard that alternative as even more unacceptable than the concept of wash-up.
Amendment 27 agreed.
28: Clause 43, page 52, line 21, at end insert—
“( ) The regulations must provide for the factors to be taken into account in deciding whether to authorise a licensing body to grant copyright licences in respect of works to include—
(a) the likely effect of the authorisation on— (i) authors of the works,(ii) members of the body,(iii) copyright owners on whose behalf the licensing body would be entitled to act pursuant to the authorisation, and(iv) licensees and potential licensees of the aspects of copyright that would be the subject of the authorisation, and(b) the extent to which the licensing body is entitled to negotiate or grant copyright licences in respect of similar works, other than under an authorisation under this section.”
My Lords, during our debate on Report, I agreed that the Government would consider Amendments 155A and 155B tabled by the noble Viscount, Lord Bridgeman. The Government had always intended that extended licensing schemes should be run by representative licensing bodies. While we were not able to accept the drafting of the amendments tabled on Report for reasons I will explain, the government amendments in this group achieve a similar effect.
Together, this group of amendments prescribes that the regulations must require that certain factors are taken into account before a licensing body’s application to carry on extended licensing is granted. These factors are, first, the likely effect of the authorisation on authors, rights holders, licensees, potential licensees and members of the licensing body applying for authorisation. This list is not exhaustive. The amendment will ensure that the interests of all those potentially affected by an authorisation under proposed new Section 116B of the Copyright, Designs and Patents Act 1988 will be properly considered before a decision to authorise is taken. I hope noble Lords will agree that this achieves the purpose of that Amendment 155A.
Paragraph (b) of Amendment 28 requires consideration of the extent of the applicant licensing body’s existing repertoire before any extension is allowed through authorisation under proposed new Section 116B. This would require consideration of the extent to which the body was already acting for the copyright owner—that is, the extent to which it is representative of copyright owners in that class of works. It is designed to tackle the same ground as did Amendment 155B. There are corresponding amendments for performers’ rights.
In exploring the amendments proposed by the noble Viscount, Lord Bridgeman, we encountered difficulties in having the requirement for the agreement of the majority of copyright owners in the Bill. There is no constant from which a majority can be defined as the number of works protected by copyright—and, therefore, the number of copyright owners—is constantly changing. The concept is also uncertain. We are doubtful that a simple majority would be in all cases equivalent to the critical mass of representation which the Government envisage would be required to extend a repertoire. We encountered the same problem with the concept of “substantial” in relation to Amendment 155B—this also applies to today’s Amendments 29 and 37—that is, its application is unclear.
Amendment 30 requires the Secretary of State to be satisfied on a number of things in relation to any licensing body applying for an authorisation to carry on extended licensing. The government amendments already require the Secretary of State to consider the representativeness of a licensing body before granting an authorisation. There is also now a requirement for prior consultation on the criteria for authorisation in proposed new Section 116F(4) of the copyright Act. There is equivalent provision for performers’ rights.
The government amendments also require the interests of member and non-member rights holders affected by an application for extended licensing to be taken into account before the application is granted. This may be achieved through consultation.
On fiduciary duties, licensing bodies are generally given mandates by their members. It follows, therefore, that they should already be acting in the interests of their members. The Government would certainly expect any well-run licensing body to be doing so. Where this is not the case, the Secretary of State can require a licensing body to adopt a code of practice. I hope that in the light of this explanation the noble Lords, Lord Razzall and Lord Clement-Jones, and the noble Viscount, Lord Bridgeman, will not move their amendments.
We have managed to find a workable solution which addresses the issues raised on Report in Amendments 155A and 155B, and those raised in Amendments 29, 30 and 37 today. I can assure the House that we absolutely agree that extended licensing should not be available in an area if it goes against the wishes of rights holders in that area. I hope that on consideration of the government amendments tabled today your Lordships will agree that we have managed to capture the spirit and effect of the amendments proposed by the noble Viscount, Lord Bridgeman. I beg to move.
Amendment 29 (to Amendment 28)
29: Clause 43, line 2, leave out from “provide” to end of line 14 and insert “that no extended licence under a scheme authorised by subsection (1) shall be granted if a substantial proportion of copyright owners and of authors affected by such a licence object to it.”
My Lords, it is always slightly disconcerting to get an answer before you have asked the question, but I shall do my best to respond on the hoof to the Minister’s statements. I took my basic text—I do not think that he has deviated very strongly from it—from his letter to the noble Viscount, Lord Bridgeman, of 11 March. I think that the Minister was exercised by the phrase “the majority of copyright owners”. He raised a number of points in the letter that were similar to what he has said today as regards authors not always being copyright owners but perhaps having an interest in the outcome of an application for extended licensing and the Government not believing that a simple majority would be equivalent to the critical mass of representation required. He said that including the concept of the majority of copyright owners in the Bill would not be right and that he had encountered the same problem regarding the concept of “substantial” in relation to Amendment 155B.
I understand some of those issues. However, the amendments that the Minister has put down may be similar in effect—the Minister used that phrase—but are not the same. In particular, the phrase,
“factors to be taken into account in deciding whether to authorise a licensing body to grant copyright licences”
is somewhat vague. Does it specify only factors to be taken into account before authorising a body to grant licences, or does it require consultation before an already authorised body grants a particular licence to a particular user? Certainly, many of those affected by these extended licences believe that both are required.
We disagree about the legal impact of “substantial proportion” in Amendments 29 and 37. Contrary to what the Minister thinks, we believe that these give clear instructions to the drafters of the regulations. For instance, in the context of the Copyright, Designs and Patents Act, “substantial proportion” has a clear meaning—for example, through judicial interpretation of Section 16. Therefore, we have a drafting legal issue but the more substantive point is that we do not believe that the government amendment fits the bill. I beg to move.
My Lords, I again declare an interest as a non-executive director of the Bridgeman Art Library, a photographic archive. I am most grateful to the Minister for his very comprehensive letter to me, to which the noble Lord, Lord Clement-Jones, referred. I join with the noble Lord in feeling that the Government’s amendment does not entirely fulfil their undertaking. There is too big an element of consultation and not enough of mandatory provision in it. Amendment 30, in my name, addresses the consent of authors, performers and licensees to each licence granted. This is an area in which the government amendment is seriously deficient. I hope that the Minister will be able to reassure me on that point. It is not sufficient to rely—as the government amendment does—on consultation at the stage when a body seeks authorisation because, from the point of view of a copyright owner, an individual author or performer or of a person holding an exclusive licence in a work, the effects of an extended licence being granted to different licensees can differ. I borrow an analogy from the film industry. It is one thing for an authorised body to negotiate and grant a licence to, for example, the British Film Institute. However, the Minister’s letter explaining the Government’s amendment appears to suggest that it would be all right to issue the same licence to, for example, Odeon Cinemas. The views of authors, performers and other rights holders would very likely differ on that point and should be taken into consideration when granting each licence.
Having said that, this group of amendments addresses a point with which I am sure the House is basically in agreement. I hope that the Minister will be able to reassure me on the points that I have raised.
I welcome government Amendment 28, which is the Government’s response to the important points powerfully put forward in Committee by the noble Viscount, Lord Bridgeman, and the Liberal Democrat Front Benches. It is clear that the Government’s proposition in the amendment does not command complete assent from the other side of the House, but it none the less represents an advance.
This is an instance of the excellent quality of scrutiny that the Digital Economy Bill has received in your Lordships’ House. I expect that, in a very few minutes, we shall send it to another place, but I do not have the same confidence that it will receive the same quality of scrutiny in the House of Commons; indeed, my noble friend Lord Davies just now anticipated that it was improbable that the Digital Economy Bill would proceed beyond Second Reading there.
I was startled by what my noble friends Lord Young and Lord Davies said about the wash-up, those negotiations between the Front Benches of the parties in the dying days of a Parliament before it is dissolved. I would like at least substantial elements of the Bill to go through on to the statute book, in particular Clause 43 as amended by the Government. We must contemplate the possibility that the view will be taken, as at the end of previous Parliaments, that measures contained in Bills which have not received a Committee stage in both Houses of Parliament should not be permitted to go forward on to the statute book. I would from the point of view of the need for this legislation be sorry if that were to happen, although I also recognise that there are important constitutional arguments as to why it should.
In the event that elements of the Bill that we want to see go forward and become law do not do so at the end of this Parliament, will my noble friend Lord Young instruct his officials to make the best progress that they can in the period following dissolution in continuing to refine the Bill, and in particular to draft the regulations that would eventually be published under the Bill so that they can be put out to consultation as soon as possible? We could then look forward to a new and improved digital economy Bill being published early in the first Session of the new Parliament—I do not think that there is any significant party political controversy in relation to it. All the interests affected would be able to have their concerns and views carefully considered in the consultation on the regulations. When the new Bill was introduced in the first Session, Parliament would be able to examine it with a great deal more assurance than has been the case this time around. We would look forward to the prospect of it relatively speedily and uncontroversially getting on to the statute book. It may be that the major parts of the Bill will go forward on to the statute book, but we should at least contemplate the possibility that they will not.
My Lords, we believe that the government amendments address a number of the concerns raised by the noble Lord, Lord Clement-Jones, and the noble Viscount, Lord Bridgeman. The Secretary of State will be required to consider the likely effect of an authorisation on a number of groups, including authors, members of licensing bodies, copyright owners, and licensees and potential licensees before making a decision on whether to grant an authorisation for extended licensing. The Secretary of State will also have to consider the extent to which the body already represents rights holders in the sector for which it is seeking an authorisation. We may not have addressed every dot and comma of noble Lords’ concerns, but we have tried to respond to them genuinely, and I am reliably informed that the consultation on which the noble Lord, Lord Clement-Jones, sought an assurance will take place.
On the point made by my noble friend Lord Howarth, we believe that we will be able to achieve the progress of the Bill. I do not want to hypothesise about a range of issues. To clarify the wash-up situation, I have been advised by someone very experienced that the Bill goes through all the stages—it is just in a telescoped manner. I cannot really say any more on that. I hope that in the light of the assurances I have given, and the Government’s amendments, the noble Lords will feel able to withdraw their amendment.
What the Minister had to say was very interesting. I understand that the points we make will be heard, if you like, on consultation and I hope that they will be very much part of the Government’s thinking when they consult. On that basis, I beg leave to withdraw the amendment.
Amendment 29 (to Amendment 28) withdrawn.
Amendment 28 agreed.
30: Clause 43, page 52, line 21, at end insert—
“( ) When exercising the powers under this section, the Secretary of State must be satisfied that—
(a) the licensing body is representative of authors, performers and rightsholders, as appropriate, of the type of works or recordings for which the licence is to be granted;(b) the licensing body has a fiduciary duty to the authors, performers and rightsholders on whose behalf it issues licences;(c) the licensing body has solicited views through an open consultation with authors, performers and rightsholders who are not members of the licensing body but would be affected by such a licence and has taken account of such views; and(d) the licensing body seeking authorisation has the approval of its membership, through its governing body.”
I would like to add to the question of substantial. When the Minister is engaged in further refining this Bill, I suggest that this is carefully examined. It appears that the noble Lord, Lord Clement-Jones, and I have both received advice that Section 16 of the copyright Act is a valid test of proportionality. With that request, I shall not move the amendment.
Amendment 30 not moved.
31: Clause 43, page 52, line 24, at end insert—
“( ) In this section—
“copyright licence” has the same meaning as in section 116;
“member”, in relation to a licensing body, means —
(a) a copyright owner on whose behalf the body is authorised to negotiate or grant licences, other than under an authorisation under this section, and(b) a person other than the copyright owner who is or would be entitled to royalties or other sums paid in respect of a copyright licence granted by the body.”
Amendment 31 agreed.
Schedule 2: Licensing of copyright and performers’ property rights
Amendments 32 and 33
32: Schedule 2, page 63, line 1, at beginning insert “by regulations”
33: Schedule 2, page 63, line 42, at end insert—
“(3) In this paragraph “member”, in relation to a licensing body, has the same meaning as in section 116B.”
Amendments 32 and 33 agreed.
34: Schedule 2, page 63, line 42, at end insert—
“(3) Regulations under paragraph 1 must provide for such a code equally to apply to licensees, including provisions relating to their obligations to licensing bodies.”
My Lords, the Digital Economy Bill contains detailed provisions of a code of practice for licensed bodies. As currently drafted, it only provides obligations for a licensing body without any reference to licensees. Collective licensing is a commercial relationship between the licensing body and licensees. Given the nature of the relationship, obligations of the licensing body to licensees should be reflected by respective obligations of licensees to the licensing body, such as respecting the rights of creators, performers and rights holders and in particular, the right to receive fair payment for the use and exploitation of copyright material. Any code of practice should also oblige licensees to adhere to the terms of the licence and more broadly the provisions of the Copyright, Designs and Patents Act 1988 and other applicable legislation or other binding legal requirements as established by case law, conditions or guidelines. In other words, it is a two-way process. I beg to move.
I support my noble friend. It would be quite illogical for conditions to be imposed on one level of the chain and for those conditions not to pass through to the next one. Otherwise you could license somebody, put conditions on that licence and the next person down could simply ignore them. I hope that the Minister will therefore listen to my noble friend’s suggestion.
My Lords, the purpose of the amendment is to apply a licensing body’s obligations under a code of practice to those that it licences. This amendment misunderstands the purpose of the code of practice. Licensing bodies are natural monopolies; licensees are frequently individuals, small or micro businesses or sole traders, who lack bargaining power. The code of practice is designed to achieve a level playing field for licensing and to facilitate dispute resolution. When a licensee breaches obligations in its licence and infringes copyright, the licensing body has a right of action which it can pursue. It would be unusual for a customer buying a product—in this case, the licence—to be subject to regulatory requirements that are designed for its supplier. In the light of this explanation, I hope that the noble Viscount feels able to withdraw his amendment.
Amendment 34 withdrawn.
35: Schedule 2, page 65, line 25, leave out “(within the meaning of paragraph 1)”
Amendment 35 agreed.
36: Schedule 2, page 65, line 32, at end insert—
“( ) The regulations must provide for the factors to be taken into account in deciding whether to authorise a licensing body to grant licences in relation to a performer’s property rights to include—
(a) the likely effect of the authorisation on— (i) the performer,(ii) members of the body,(iii) owners of rights on whose behalf the licensing body would be entitled to act pursuant to the authorisation, and(iv) licensees and potential licensees of the aspects of rights that would be the subject of the authorisation, and(b) the extent to which the licensing body is entitled to negotiate or grant performers’ property right licences in relation to similar rights, other than under an authorisation under this paragraph.”
Amendment 37 (to Amendment 36) not moved.
Amendment 36 agreed.
Amendments 38 to 44
38: Schedule 2, page 65, line 35, at end insert—
“( ) In this paragraph—
“member”, in relation to a licensing body, means—
(a) an owner of a performer’s property rights on whose behalf the body is authorised to negotiate or grant licences, other than under an authorisation under this paragraph, and(b) a person other than the owner of a performer’s property rights who is or would be entitled to royalties or other sums paid in respect of a licence in relation to the rights granted by the body;“performers’ property right licences” has the same meaning as in paragraph 1.”
39: Schedule 2, page 65, line 37, leave out “in accordance with regulations”
40: Schedule 2, page 66, leave out line 9 and insert—
“( ) public funding bodies;( ) trade unions and trade associations;”
41: Schedule 2, page 66, line 10, leave out “works” and insert “recordings”
42: Schedule 2, page 66, line 23, leave out “copyright owner” and insert “owner of the interest”
43: Schedule 2, page 67, line 24, leave out “(6)” and insert “(3)”
44: Schedule 2, page 67, line 30, after “rights,” insert—
“( ) as if the reference in paragraph 3(3) to section 116B were a reference to paragraph 1B,”
Amendments 38 to 44 agreed.
A privilege amendment was made.
Bill passed and sent to the Commons.